Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.In 2023, Lawrence seconded at Amazon Lab126, where he led the negotiation of high-profile licensing deals for a variety of Amazon device teams. The secondment was an immersive opportunity to gain additional insights and experience from the perspective of in-house counsel. Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Lawrence W. Gallick

SCOTUS Age-Gates the Internet: Free Speech Coalition v. Paxton and the Future of Adult Content Regulation

Social Links: Clickbait, Court Dates, and the Beige Apocalypse

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<h4>THE LAPTOP IN THE CLOSET</h4>This odyssey began when an old laptop was discovered by a curious 14-year-old boy in Kansas. The boy, known only as “QR,” used it to sneak onto a handful of adult websites over two months last year, racking up 118 virtual visits. His mother, Jane Doe, wasn’t amused.Now, Jane and QR are suing Chaturbate, Jerkmate, Superporn, and other sites many readers are currently pretending they’ve never heard of, claiming that <a href="https://www.documentcloud.org/documents/24520544-sb394-kansas/?ref=404media.co" target="_blank">Kansas law</a> should have kept QR out. The law doesn’t mess around: if a site has at least a quarter of its content deemed “harmful to minors,” it’s legally obligated to stop underage visitors. Every slip-up risks a $10,000 fine, and parents can demand at least $50,000 in damages. Jane and QR are asking for a cool $75,000 per site, citing medical bills, future expenses, pain, suffering, and assorted teenage angst.Their legal escort through this process is <a href="https://endsexualexploitation.org/articles/multiple-porn-sites-sued-for-violating-kansas-age-verification-law/?ref=404media.co" target="_blank">The National Center on Sexual Exploitation</a> (NCOSE), a group with a longstanding mission to keep explicit material off kids’ screens. NCOSE is framing this as a battle for QR’s health and future, painting Jane as a vigilant parent fighting an uphill battle against a digital bogeyman. But Kansas law defines “harmful to minors” with a net wide enough to catch even content discussing LGBTQ issues or non-sexual physical contact. This has, unsurprisingly, <a href="https://kansasreflector.com/2024/04/03/dont-look-kids-according-to-kansas-lawmakers-this-is-pornography/" target="_blank">raised an alarm</a> among free speech advocates.The Kansas lawsuits drop into an already overheated national debate about minors, porn, free speech, and digital privacy. More than 20 states have already passed <a href="https://avpassociation.com/4271-2/" target="_blank">similar age verification laws</a>, each sparking its own culture clash between parental control and constitutional rights.As for QR’s digital misadventures? It’s a safe bet his old laptop’s memory wasn’t the only thing that got rebooted.<h4>SAD, BEIGE, AND OVER</h4>A <a href="https://www.theverge.com/2024/11/26/24303161/amazon-influencers-lawsuit-copyright-clean-aesthetic-girl-sydney-nicole-gifford-alyssa-sheil" target="_blank">showdown</a> in the world of social media aesthetics fizzled out in a Texas courtroom this past April. The world can now breathe easy as content creators Alyssa Sheil and Sydney Nicole Gifford have ended their copyright <a href="https://wilson.gjassets.com/content/uploads/2024/12/Gifford_v_Sheil.pdf" target="_blank">lawsuit</a> over who owned the rights to the “neutral, beige, and cream” look. According to a filing in the Western District of Texas, they’ve agreed to drop the suit with prejudice and walk away. Whew…. We dodged a bullet here, folks.Gifford had accused Sheil of mimicking her social media presence, alleging it was a blatant copy/paste job designed to siphon her followers, engagement, and income. This clash wasn’t just about beige backdrops and cream-colored fashion, though. The claims cited copyright infringement, trade dress infringement, and violations of the Digital Millennium Copyright Act.Now that the lawsuit has ended, Sheil’s lawyers have put out a <a href="https://azalaw.com/first-of-its-kind-influencer-copyright-case-dropped-against-aza-client/" target="_blank">statement</a> celebrating the dismissal. Sheil herself stated: “I could have caved to Ms. Gifford’s demands, but this was a much larger fight and sets a precedent that young minority entrepreneurs will not allow ourselves to be bullied. Ms. Gifford attempted to intimidate me into leaving this industry. She failed miserably as the truth has prevailed today.”For her part, Gifford’s camp put a more <a href="https://www.law.com/texaslawyer/2025/05/28/media-attention-but-no-case-copyright-suit-fizzles-over-beige-vibe/?slreturn=20250603155217" target="_blank">diplomatic spin</a> on things, saying she’d chosen to settle “to focus on her business and growing family and to avoid the substantial additional expenses associated with litigation.” Her attorney added that the case “shed light on what is inappropriate within the creator industry and the need for the law to evolve to better protect content creators.”Three of Gifford’s claims were dismissed last December, so the April mediation was already significantly smaller in scope. Ultimately, Gifford decided it just wasn’t worth the hassle anymore and voluntarily dismissed all remaining claims with prejudice. The catch? Because Sheil had already filed an answer and the case had been active for nearly a year, Gifford couldn’t dismiss the lawsuit without Sheil’s consent. “Even though our client was entirely in the right, it is rare to secure a win like this where the plaintiff has to ask you for permission to give up,” said Sheil’s attorney Jason McManis.  <h4>X SUES VIETNAMESE CLICK FARM</h4>X has filed a <a href="https://www.bloomberglaw.com/public/desktop/document/XCorpvDOetalDocketNo425cv00546NDTexMay222025CourtDocket?doc_id=X5UL988TB238HFP7J0RF7OA62J3" target="_blank">federal lawsuit</a> accusing a Vietnamese click farm of orchestrating a <a href="https://www.independent.co.uk/news/world/americas/elon-musk-x-vietnam-engagement-farming-b2756948.html" target="_blank">sophisticated fraud scheme</a> that allegedly siphoned off payments from the platform’s Creator Revenue Sharing Program.According to the complaint, an eight-person team based in Hanoi operated a network of fraudulent accounts using stolen identities to manipulate engagement metrics. These accounts were “programmatically posting computer-generated content” and artificially boosting interactions within their network to trigger revenue payments from X’s system. The complaint describes this as a form of “coordinated platform manipulation” designed to exploit the platform’s algorithm, which rewards high levels of user engagement.X’s lawsuit seeks disgorgement of the funds and damages under federal racketeering and fraud statutes, naming 25 John Doe defendants alongside the eight identified individuals. The complaint alleges that the group funneled proceeds into more than a hundred U.S. bank accounts (also opened under stolen identities) before transferring them into accounts under their real names at nine Vietnamese banks. In total, X claims the group’s activity spanned more than 1,700 transactions.The fraudulent activity was eventually uncovered through private investigators and third-party payment processors, including <a href="https://www.international.pingpongx.com/" target="_blank">PingPong</a> and <a href="https://www.payoneer.com/" target="_blank">Payoneer</a>, who provided identification details linked to the suspect accounts.The complaint not only accuses the defendants of wire fraud and racketeering but also alleges trademark infringement, asserting that they misused X’s branding in promotional materials for their automation tools.X’s <a href="https://help.x.com/en/using-x/creator-revenue-sharing" target="_blank">Creator Revenue Sharing</a> program, launched in 2022, was originally designed to reward premium users for generating ad revenue through interactions. However, after major advertisers began <a href="https://www.cnn.com/2024/09/05/business/advertisers-x-withdrawal" target="_blank">leaving</a> the platform due to perceptions of increased hate speech and brand safety concerns, X restructured the program to reward accounts based on overall engagement metrics. This change inadvertently created a fertile environment for malicious <a href="https://scroll.in/article/1072706/there-is-a-reason-your-x-feed-has-turned-more-toxic-have-you-heard-of-engagement-farming" target="_blank">engagement farming</a>.X is now seeking injunctive relief to halt the operation and damages, including compensatory and punitive damages, to be determined at trial.<h4>COLORADO MAN SENTENCED FOR ONLINE THREATS</h4>Teak Ty Brockbank, a name you simply can’t make up, <a href="https://apnews.com/article/election-officials-threat-colorado-years-prison-a50f82a9fbad6ebf72eafef189a06f38" target="_blank">was sentenced</a> to three years in prison by Colorado District Court Judge Kato Crews for <a href="https://www.courthousenews.com/wp-content/uploads/2024/08/us-v-brockbank-complaint-us-district-of-colorado.pdf" target="_blank">threatening to kill</a> multiple government employees on social networking sites Rumble and Gab.Brockbank, 45, <a href="https://www.justice.gov/usao-co/pr/cortez-man-pleads-guilty-making-threats-against-election-official" target="_blank">pleaded guilty</a> to making violent online threats between late 2021 and 2022 against Colorado Secretary of State Jena Griswold, former Arizona Secretary of State (and now Governor) Katie Hobbs, a Colorado judge who oversaw his DUI case, and a few federal agents. He has been incarcerated since his <a href="https://apnews.com/article/colorado-arizona-online-threats-election-charges-0336cd51c5f08890acfbd074cc94e54a">August 2024 arrest</a>. His defense painted him as a misguided “keyboard warrior” drawn to the darker corners of Gab and Rumble, convinced the country was under siege and that it was his patriotic duty to rise up.In court, his attorney blamed Brockbank’s actions on drinking binges, loneliness, and a steady diet of QAnon conspiracies. They argued that while the posts were ugly and violent, there was no actual plan behind the threats. Even so, prosecutors pointed out that Brockbank’s behavior didn’t stop when he was sober, undermining the “blame it on the booze” defense.Before handing down the three-year sentence, Judge Crews read aloud some of Brockbank’s more chilling posts, including one that called for Secretary Griswold to “hang by the neck.” Crews called it “keyboard terrorism” and said the penalty had to be high enough to deter others. “The public must not accept this as the norm,” he said, reminding everyone in the courtroom that political violence, whether online or offline, will not be tolerated.Brockbank tried to pivot in his final statement, apologizing for his “ugly posts” and asking for home detention instead of prison time. Judge Crews noted that while Brockbank’s remorse seemed real, accountability mattered more.The case, which was investigated largely by a <a href="https://www.justice.gov/archives/opa/blog/justice-department-launches-task-force-combat-threats-against-election-workers-0" target="_blank">Justice Department task force</a> formed in 2021 to address rising threats against election officials, highlighted the disturbing overlap between online rhetoric and real-world consequences. Secretary of State Griswold made it clear she won’t be backing down. “I will not be intimidated,” she said.In the end, the lesson was clear: digital threats may feel like shouting into the void, but sometimes the void shouts back with a prison sentence.<h4>META’S AI AD PLAY</h4>Meta Platforms Inc. plans to <a href="https://www.cnet.com/tech/services-and-software/meta-wants-ai-to-handle-every-part-of-ad-creation-heres-what-that-means/" target="_blank">fully integrate</a> generative AI tools into its advertising suite by the end of next year in a move poised to reshape the marketing industry’s landscape.According to reporting by <a href="https://www.wsj.com/tech/ai/meta-aims-to-fully-automate-ad-creation-using-ai-7d82e249?reflink=desktopwebshare_permalink" target="_blank">The Wall Street Journal</a>, these advanced AI tools will allow brands to craft end-to-end ad campaigns directly within Meta’s platform. This includes everything from generating imagery and copy to targeting users based on location and preferences, all calibrated to the advertiser’s budget. In effect, Meta’s AI system is designed to streamline ad creation and targeting, potentially reducing the need for traditional advertising and media agencies, particularly for clients with smaller budgets.Currently, Meta’s ad platform offers limited AI capabilities to tweak and optimize ads before deployment on Facebook and Instagram. However, the new tools promise to automate the entire creative and targeting process, which may alter the roles of ad agencies.CEO Mark Zuckerberg has described this push as a “redefinition of the category of advertising,” underscoring Meta’s commitment to AI-powered solutions.While some industry observers interpret this as a threat to the agency ecosystem, Meta has taken care to emphasize that agencies will still play a crucial role. “We believe in the future of agencies,” <a href="https://www.linkedin.com/posts/alexorig_i-saw-some-misleading-commentary-about-meta-activity-7325276203299266560-HC8v/?utm_source=share&utm_medium=member_desktop&rcm=ACoAABT1-vwBpbFPNPWoAHdJKxeH0LrGUjvnXQg" target="_blank">said Alex Schultz</a>, Meta’s chief marketing officer and vice president of analytics. “AI will enable agencies and advertisers to focus precious time and resources on the creativity that matters. While we think there will ultimately be more automation in marketing, the role that agencies play is going to become ever more important through their ability to plan, execute, and measure across platforms.”For smaller advertisers, the appeal is clear. As Schultz put it, “Millions of small businesses rely upon our platform to grow. For these businesses who aren’t able to work with an agency, or don’t have time during their busy days to think about their creative or targeting, that’s where AI can help level the playing field.”While Meta’s push into AI-driven advertising doesn’t spell the end for agencies, it certainly signals a shift where technology is poised to take on a larger role in the creative and strategic processes that have traditionally defined the industry.<h4>FOURTH CIRCUIT UPHOLDS DISMISSAL OF FIREMAN’S SOCIAL MEDIA SUIT</h4>The Fourth Circuit has <a href="https://www.firelawblog.com/wp-content/uploads/sites/19/2025/06/Misjuns-v.-City-of-Lynchburg_-2025-U.S.-App.-LEXIS-13786.pdf" target="_blank">affirmed the dismissal</a> of a lawsuit brought by former Lynchburg, Virginia Fire Captain Martin Misjuns, who alleged that the city violated his constitutional rights by terminating him over controversial social media posts. The case, which raised First and Fourteenth Amendment issues as well as breach of contract and civil rights statutes, centered on whether Lynchburg could be held liable under <a href="https://supreme.justia.com/cases/federal/us/436/658/" target="_blank">Monell v. Department of Social Services</a>. In the 1978 Monell decision, the Supreme Court ruled that local governments can be sued when their official policies or practices violate someone’s constitutional rights, but not simply because one of its employees did something wrong. Prior to Monell, municipalities had blanket immunity from such suits.  In January 2021, Misjuns posted anti-transgender cartoons on his public Facebook page under the hashtag “#BidenErasedWomen.” The posts drew swift backlash from citizens, who questioned whether someone espousing such views should remain in public service. City leadership initiated an investigation, and Misjuns was terminated in October 2021. He pursued internal grievance channels without success and ultimately <a href="https://www.firelawblog.com/2021/04/04/virginia-captain-claims-political-retaliation/" target="_blank">filed suit</a>.The Fourth Circuit found that Misjuns failed to establish Monell liability. The court also dismissed his breach of contract claim, noting that Lynchburg’s employment policies contain clear at-will disclaimers.In a concurring opinion, Judge J. Harvie Wilkinson III acknowledged Misjuns’s right to express his views but emphasized that his speech was “bigoted and divisive,” which eroded public trust in the department and justified disciplinary action. Misjuns may appeal to the U.S. Supreme Court for review, but it seems this fire captain may have been his own career’s arsonist.

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Social Links: Clickbait, Court Dates, and the Beige Apocalypse

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As the world’s premier blog and go-to source for insightful, pithy commentary on the law and business of social media (EDITOR’S NOTE: this claim has not been verified), the team at Socially Aware feels socially responsible to recap the top ten posts of 2024. We’re doing this in reverse-order “countdown mode” because we like to pretend we’re astronauts.It’s certainly been an interesting year in social media. Clickwrap agreements received a lot of attention from courts, the FTC cracked down on fake reviews, data scrapers spent nearly as much time in court as they did scraping data, age-verification laws for social media became a thing, and Section 230 was stress-tested from all angles. In an age where tech moves approximately one billion times faster than legislation, staying on top of these developments can be daunting, but it’s crucial for serving our clients.Here are the ten most popular Socially Aware posts of the year:10) <a href="/topics/lawrence-w-gallick-on-toth-v-everly-well-inc-" target="_self">Lawrence W. Gallick on Toth v. Everly Well, Inc.</a>In this post from October, Lawrence chatted with Socially Aware about Toth v. Everly Well and how the First Circuit’s ruling in a clickwrap/arbitration case may be at odds with the Fourth Circuit’s ruling in Lovinfosse v. Lowe’s Home Centers, LLP. Lawrence explores the nuances of the ruling and shares some deep insight.9) <a href="/topics/social-links-age-verification-x-appeal-and-the-great-white-north" target="_self">Age Verification, X Appeal, and the Great White North</a>This Social Links post from November covered Texas’s sweeping age verification law, the FTC’s fake reviews rules, a Saudi blogger’s lawsuit against X, Canada ordering TikTok to shutter offices, and ChatGPT’s approach to election integrity. Good times!8) <a href="/topics/california-federal-court-holds-x-s-claims-against-scraper-preempted-by-federal-law" target="_self">California Federal Court Holds X’s Claims Against Scraper Preempted by Federal Law</a>Socially Aware’s in-house gurus Aaron Rubin and Lawrence W. Gallick took an in-depth look at the X Corp. v. Bright Data Ltd. case last June, dissecting the intricacies and ramifications of this ongoing legal battle. Though X’s claims were initially dismissed by the U.S. District Court for the Northern District of California, they lived to fight another day when the court agreed to accept their amended complaint in late November. This one is a great read.7) <a href="/topics/social-links-deepfakes-ai-and-the-continuing-saga-of-reddit" target="_self">Deepfakes, AI, and the Continuing Saga of Reddit</a>In August, we posted this Social Links collection that looked at a couple of AI cases, including the $1 million judgement against Georgia-based VoIP service operator Lingo Telecom for using AI deepfake technology to mimic President Joe Biden’s voice in a series of robocalls. Other topics include Reddit’s post-IPO advertising approach and the copyright battle between major record labels and Cox Communications.6) <a href="/topics/owned-second-circuit-holds-that-traditional-principles-of-property-law-apply-to-social-media-accounts" target="_self">Owned: Second Circuit Holds That Traditional Principles of Property Law Apply to Social Media Accounts</a>Way back in February, Aaron Rubin and Lawrence W. Gallick addressed the always-contentious issue of social media account ownership by looking at JLM Couture, Inc. v. Hayley Paige Gutman. This piece draws some interesting conclusions that have aged well in subsequent months. The very <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.937.0.pdf?ref=404media.co">recent filing</a> by X claiming ownership of Alex Jones’s account in Jones’s bankruptcy proceeding underlines Aaron and Lawrence’s freaky prescience.5) <a href="/topics/supreme-court-clarifies-the-boundaries-of-public-official-liability-on-social-media" target="_self">Supreme Court Clarifies the Boundaries of Public Official Liability on Social Media</a>On March 20, guest authors J. Alexander Lawrence and Justin Kareem Rezkalla contributed a great piece of analysis in the wake of the Lindke v. Freed Supreme Court opinion on when public officials may be held liable for violating the First Amendment for silencing critics on social media. The unanimous(!) opinion recognized that the mere fact that a social media page belongs to a public official is not by itself sufficient to impose liability.4) <a href="/topics/social-links-going-back-to-cali" target="_self">Social Links: Going Back to Cali</a>We named this early October piece “<a href="https://www.youtube.com/watch?v=FdizL4on-Rc" target="_blank">Going Back to Cali</a>” because each snippet of news just happened to be California-centric. Go figure. AI guidelines, social media addiction legislation, deepfake laws, privacy rights . . . it’s all about the Golden State.3) <a href="/topics/central-district-of-california-upholds-grindr-s-immunity-under-section-230-amidst-growing-concerns-over-social-media-safety-for-children" target="_self">Central District of California Upholds Grindr’s Immunity Under Section 230 Amidst Growing Concerns over Social Media Safety for Children</a>In addition to claiming the #3 spot on our countdown, this piece from February wins the “longest title of the year” award! In it, Aaron Rubin and Lindsay Harris dissect the John Doe v. Grindr case and how Section 230 was applied to the popular LGBTQ+ dating app. This example of Socially Aware’s substantive yet readable content is well worth revisiting.2) <a href="/topics/socially-aware-fake-reviews-real-rulings-and-an-epic-fail" target="_self">Social Links: Fake Reviews, Real Rulings, and an Epic Fail</a>We posted this extra-spooky Social Links piece on the eve of Halloween, and it clawed its way to the #2 spot. Fake reviews, medical data tracking, a very dramatic court ruling . . . this one was all treats, no tricks.1) <a href="/topics/an-enforceable-browsewrap-or-not" target="_self">An Enforceable Browsewrap . . . or Not?</a>The #1 most popular Socially Aware post of 2024 was authored by the dynamic duo of Aaron Rubin and Lawrence W. Gallick. The piece looks at Patrick v. Running Warehouse LLC, which addressed whether an arbitration agreement contained in a website’s terms of use was enforceable. Spoiler alert: it was.On behalf of Aaron Rubin, Lawrence W. Gallick, Anthony M. Ramirez, and the entire Socially Aware team, we’d like to wish everyone a happy and healthy holiday season. 2025 will no doubt be an interesting year in the world of social media and IP law—and we’ll be covering all of it, so you don’t have to.

2024 Recap: Ten Lords A-Leaping!

Arbitration

Data Security

Defamation

E-Commerce

Online Reviews

Privacy

Section 230 Safe Harbor

Terms of Use

CHARACTER.AI SUED IN TWO STATESCharacter Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (<a href="https://d34mgxl0pedajf.cloudfront.net/wp-content/uploads/2024/10/FILED-COMPLAINT_Garcia-v-Character-Technologies-Inc-1.pdf" target="_blank">Garcia v. Character Technologies Inc.</a>) by the mother of a Florida teenager who <a href="https://www.fastcompany.com/91215310/character-ai-app-lawsuit-legal-complaint-teen-suicide-chatbot-google" target="_blank">tragically committed suicide</a> after the chatbot allegedly encouraged the child to do so. The Plaintiff claims her son became instantly addicted to Character.ai and “fell in love” with the bot, leading to drastic behavioral changes such as sleep deprivation, school-related issues, and low self-esteem, which culminated in the child’s death. Just a few weeks later, two plaintiffs in Texas <a href="https://www.documentcloud.org/documents/25450619-filed-complaint/" target="_blank">filed suit</a> alleging that Character.ai <a href="https://www.npr.org/2024/12/10/nx-s1-5222574/kids-character-ai-lawsuit" target="_blank">abused the plaintiffs’ children</a> by exposing them to hypersexualized content, encouraging self-harm, and suggesting they should kill their parents. Both suits allege that the Character.ai chatbot is intentionally designed in a way that exploits minors by simulating human interaction, creating emotional dependence, and failing to implement safeguards against misuse. Given that these are the first major cases to seek damages related to anthropomorphized AI tech, it will be interesting to see whether juries find Character.ai liable, as this could spawn waves of similar lawsuits.MAJOR RECORD LABELS PETITION SUPREME COURT OVER VERDICT REVERSALThree of the world’s largest entertainment companies—Sony Music, Warner Music, and Universal Music—have <a href="https://tmsnrt.rs/3SX6Do2" target="_blank">petitioned the U.S. Supreme Court</a> to reconsider an appellate ruling that wiped out a $1 billion jury verdict in their suit against internet service provider Cox Communications. In 2019, a <a href="https://www.reuters.com/article/lifestyle/cox-to-pay-1-billion-to-music-labels-publishers-over-piracy-infringement-idUSKBN1YO0DE/" target="_blank">Virginia jury</a> found Cox liable for rampant music piracy by the company’s customers and failure to act despite receiving thousands of infringement notices. The verdict was <a href="https://business.cch.com/ipld/SonyMusicEntmtCoxComms4C20240220.pdf" target="_blank">overturned</a> earlier this year by the U.S. Court of Appeals for the 4th Circuit, which confirmed the jury’s finding of willful contributory infringement, but called for a new trial on damages because Cox did not directly profit from the piracy. Unsurprisingly, the plaintiffs appealed, and it appears the Supreme Court is poised to take the case. In a <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-181.html" target="_blank">one-sentence order</a>, the High Court has invited the solicitor general to file a brief expressing the views of the United States. This is a strong indication that the Court is interested in hearing the case. With a new administration set to take the reins in Washington next month, it seems likely that appellate attorney <a href="https://www.scotusblog.com/2024/11/trump-taps-lawyer-who-argued-his-immunity-case-for-solicitor-general/" target="_blank">D. John Sauer</a> will be solicitor general. Sauer’s disposition toward IP cases is tough to predict, as his work has largely focused on hot-button social issues. A brief in the case may give insight into Sauer’s positions on copyright law and corporate liability.X CLAIMS OWNERSHIP OF ALEX JONES ACCOUNTThe asset liquidation of Alex Jones’s <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.882.0_1.pdf" target="_blank">intellectual</a> and tangible property in the bankruptcy proceeding following the $1.5 billion <a href="https://www.statesman.com/story/news/politics/state/2024/06/06/timeline-lawsuits-alex-jones-sandy-hook-shooting-infowars-false-claims/73985486007/" target="_blank">defamation judgment</a> against him has hit an unusual speedbump. At issue is Jones’s X account. With its 3.4 million followers, the account is among the highest-profile IP assets on the auction block. But here’s the thing: X has <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.937.0.pdf?ref=404media.co" target="_blank">filed an objection</a> claiming that the account belongs to it, not Jones, and is therefore exempt from an asset sale. This raises several interesting questions and a judgment either way could have wide-ranging implications for all social media platforms. Though X’s <a href="https://x.com/en/tos" target="_blank">Terms of Service</a> state that users maintain ownership of “any Content you submit, post or display on or through the Services,” the terms do not explicitly define who actually owns the account. An ownership argument in this context is unusual. We’ve been <a href="/topics/owned-second-circuit-holds-that-traditional-principles-of-property-law-apply-to-social-media-accounts" target="_blank">covering</a> social media account ownership issues <a href="/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_self">for years</a> and in the majority of cases the conflict is between employee/employer or company/consultant. X may very well prevail in this action. Users own their content, but the account itself will likely be seen as an extension of a user’s license to access and use the platform’s services. We’ll be following this one very closely.X LAWSUIT AGAINST ISRAELI DATA SCRAPING FIRM REVIVEDIt appears that Israeli firm Bright Data will be back in court facing an amended version of a complaint from X that was <a href="https://casetext.com/case/x-corp-v-bright-data-ltd-1" target="_blank">dismissed last May</a>. As we <a href="/topics/california-federal-court-holds-x-s-claims-against-scraper-preempted-by-federal-law" target="_self">reported in June</a>, X alleged that Bright Data’s scraping and selling of data from X violated the social media giant’s Terms of Service and the U.S. District Court for the Northern District of California held that X’s claims were preempted by federal copyright law. Though the court declined to allow amendments related specifically to Bright Data’s scraping operations, it granted X’s motion for leave to amend the company’s trespass to chattels claims and fraudulent business acts allegations. Judge William H. Alsup ruled that X’s updated complaint sufficiently alleges that Bright Data improperly accessed X’s servers, writing: “X Corp. newly alleges that scrapers traverse the X service in patterns markedly different from humans or authorized machines, that scrapers thus use underlying server capacity in abnormal proportions, and that this results in intermittent, isolated server failures and a ‘glitchy, lagged user experience’ for X’s human users.” Judge Alsup added that X also properly alleged that if it hadn’t purchased “millions of dollars of server capacity,” the alleged scraping would have resulted in “catastrophic system failures,” concluding that, with these revised allegations, “X Corp.’s proposed complaint now sufficiently alleges server impairment from scrapers accessing its service. . . Bright Data does not contest that if X Corp. states trespass to chattels as to data scrapers, it plausibly does so as to Bright Data, too. This order will assume as much.” You can read Judge Alsup’s thorough, and surprisingly entertaining, <a href="https://www.courtlistener.com/docket/67637345/156/x-corp-v-bright-data-ltd/" target="_blank">ruling</a>. Now that this case is set to move forward, we’ll see if it will have wider implications on the legalities of data scraping and platform protection.META PREVAILS IN IMMUNITY SUITUniversity of Massachusetts Amherst professor <a href="https://en.wikipedia.org/wiki/Ethan_Zuckerman" target="_blank">Ethan Zuckerman</a> has lost his bid for immunity from potential lawsuits alleging breach of contract and violation of federal criminal computer fraud laws related to his “Unfollow Everything 2.0” browser extension. The extension is designed to allow users to turn off the newsfeeds assembled for them by Facebook’s algorithms with one click, blocking unwanted content and advertisements. Unfollowing functionality is already in place on Facebook but requires unfollowing groups and pages individually. In the <a href="https://casetext.com/case/zuckerman-v-meta-platforms-inc" target="_blank">November 22 ruling</a>, Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California wrote that Zuckerman’s “alleged injury is too contingent upon uncertain events to satisfy the constitutional ripeness requirement” and that the request for relief is too speculative because Zuckerman has not actually released the browser extension. Last May, Zuckerman filed a <a href="https://knightcolumbia.org/documents/gu63ujqj8o" target="_blank">preemptive suit</a> against Meta requesting immunity under Section 230, asking the court to declare that his extension would not violate Facebook’s <a href="https://www.facebook.com/legal/terms?_rdr" target="_blank">Terms of Service</a> or federal computer fraud laws, but this action was also rejected. The current case was dismissed without prejudice, so Zuckerman could refile it if he ever releases the Unfollow Everything 2.0 extension, but after two court losses, he faces significant headwinds.UBER’S ARBITRATION CLAUSE UPHELD BY APPEALS COURTIn a <a href="https://aboutblaw.com/bgm7" target="_blank">5–2 decision</a>, the New York Court of Appeals has ruled that a plaintiff’s legal claims against Uber must go through arbitration—even though her action was currently pending before a court. The ruling stems from a November 2020 lawsuit brought by plaintiff Emily Wu, who originally agreed to a prior version of Uber’s Terms of Service without mandatory arbitration. Uber amended its <a href="https://www.uber.com/legal/en/document/?name=general-terms-of-use&country=united-states&lang=en" target="_blank">Terms of Service</a> in January 2021, updating its mandatory arbitration clause, which Wu agreed to.At the heart of the case is the plaintiff’s argument that the arbitration clause should not apply to claims pending in court, even though the amended Terms of Service purported to apply to “any claims” without limitation. Among other things, Wu claimed that Uber’s notice to Wu violated <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/" target="_blank">Rule 4.2 of the Rules of Professional Conduct</a> for attorneys, which bars the other party in a pending lawsuit from directly contacting a party they know is represented by counsel. The Court of Appeals <a href="https://www.reuters.com/legal/government/column-uber-clickwrap-contract-gets-blessing-nys-top-court-theres-twist-2024-11-26/" target="_blank">disagreed with Wu</a>, maintaining that (a) a mass email notification sent by Uber clearly explained there would be changes to the arbitration agreement and that Wu entered into a contract when she agreed to the revised terms; (b) Uber did not know that Wu was represented by counsel when it sent the mass notice; and (c) even if the claim had merit, Wu’s requested remedies were too extreme and she did not even ask for the more targeted and sensible remedy of simply voiding the arbitration agreement and allowing the dispute to move forward in court.In his majority opinion, Judge Anthony Cannataro wrote, “For essentially as long as there have been written contracts, parties have entered them without first carefully reviewing their terms. That failure can have legal consequences, whether the party is a sophisticated entity or an ordinary consumer, and whether the contract is presented on paper or through an electronic pop-up window.”

Character Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (Garcia v. Character Technologies Inc.) by the mother of a Florida teenager who tragically committed suicide after the chatbot allegedly encouraged the child to do so. 

Social Links: If the Suit Fits

Bankruptcy

Supreme Court

CHALLENGE TO TEXAS AGE-VERIFICATION LAW RETURNED TO LOWER COURTThe U.S. Court of Appeals for the Fifth Circuit has sent a challenge to Texas’s controversial <a href="https://www.statesman.com/story/news/state/2024/09/13/scope-act-texas-hb-18-social-media-children-personal-data-online-judge-robert-pitman-block/75178891007/" target="_blank">online age verification law</a> back to district court for additional clarification, while leaving the lower court’s injunction blocking the legislation in place. In its current form, the law requires that companies (including social media platforms) that host or distribute digital content verify a user’s age if more than one-third of the content is “sexually harmful to minors.”<a href="https://aboutblaw.com/bgdo" target="_blank">In its opinion</a>, the Fifth Circuit wrote that the lower court failed to properly resolve who is covered by the law and the type of content under its purview. Though the law was set to go into effect on September 1, 2024, a <a href="https://ccianet.org/wp-content/uploads/2024/07/CCIA-and-NetChoice-v.-Paxton-Complaint-ECF-1.pdf" target="_blank">challenge filed in July 2024</a> by Computer & Communications Industry Association and NetChoice LLC secured a partial injunction in the U.S. District Court for the Western District of Texas, which effectively blocked implementation on First Amendment grounds. Texas Attorney General Ken Paxton immediately appealed the decision, which brings us to where we are today. Privacy concerns are at the heart of the case, with critics maintaining that this type of age verification law would put all users at significant risk for exploitation as a result of the data collected for verification. Proponents argue that the proliferation of smartphones has made pornographic content easily available to children and only legislation can protect them from themselves. <a href="https://www.newsweek.com/states-porn-age-verification-free-speech-1903108" target="_blank">Similar legislation</a> has been proposed or enacted in many states, prompting a <a href="https://www.sociallyawareblog.com/topics/state-social-media-laws-targeted-at-teens-face-opposition" target="_blank">slew of challenges</a>.FTC GOES AFTER SITEJABBER FOR FAKE PRODUCT REVIEWSAs we <a href="/topics/socially-aware-fake-reviews-real-rulings-and-an-epic-fail" target="_self">reported last month</a>, the Federal Trade Commission (FTC) is not playing around when it comes to fraudulent online reviews. It wasted no time when taking action against online review platform Sitejabber for violations of <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf" target="_blank">new FTC rules</a> prohibiting false or deceptive customer testimonials and has issued a proposed consent order in a 5–0 decision. According to <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/SiteJabber-Complaint.pdf" target="_blank">the complaint</a>, Sitejabber collected ratings and reviews for its online business clients from consumers at the time of purchase, rather than after purchasers had an opportunity to actually use the products, and used this data to deceptively inflate its clients’ ratings. Commissioner Melissa Holyoak pointed out in her <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-sitejabber-statement.pdf" target="_blank">concurring statement</a> that Sitejabber’s embeddable web widget for instant product reviews is “an inherently deceptive tool.” Commissioner Andrew Ferguson <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-sitejabber-concurring-statement.pdf" target="_blank">agreed</a>, adding: “These widgets had no purpose other than to represent that those product ratings were derived from the reviews of consumers who had received and had a chance to use the product in question.” If it does not comply with FTC rules before a final consent order is issued, Sitejabber could be subject to fines of up to $51,744 for each violation.OMAR ABDULAZIZ LOSES APPEAL AGAINST XOmar Abdulaziz, a dissident Saudi blogger, activist, and <a href="https://www.imdb.com/title/tt11382384/?ref_=nm_flmg_knf_t_2" target="_blank">longtime associate of Jamal Khashoggi</a>, has lost his appeal against X. Abdulaziz alleged that X (known as Twitter at the time) improperly shared his private information with the Saudi government, leading to his arrest and torture. Abdulaziz filed the appeal after a California district court <a href="https://casetext.com/case/abdulaziz-v-twitter-inc-1" target="_blank">dismissed the complaint</a> for failure to plead the causation needed for Article III standing and negligence. The Ninth Circuit Court of Appeals disagreed with the lower court’s Article III stance, finding that the allegations in the complaint were sufficient for standing, but still rejected the appeal on statute of limitations grounds. The court <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/21-16195/21-16195-2024-11-06.html" target="_blank">ruled</a> that Abdulaziz’s claim was barred by California’s statute of limitations since it was not filed until 2019, though X notified him as early as 2015 that state-sponsored actors may have targeted his account.TIKTOK ORDERED TO SHUTTER OFFICES IN CANADACiting national security concerns, the Canadian government has <a href="https://www.canada.ca/en/innovation-science-economic-development/news/2024/11/government-of-canada-orders-the-wind-up-of-tiktok-technology-canada-inc-following-a-national-security-review-under-the-investment-canada-act.html" target="_blank">issued an order</a> requiring TikTok to shut down operations and close its offices in Canada. Though the order is light on details, Canadian intelligence agencies have long <a href="https://www.cbc.ca/news/politics/csis-tikok-vigneault-1.7206000">expressed apprehension</a> over the app’s data security and ties to the Chinese government. Canada has banned the app on government-issued devices since 2023 (like <a href="https://www.pbs.org/newshour/world/these-countries-have-already-banned-tiktok">many other countries</a>), but this new order requires TikTok to completely end operations at their Toronto and Vancouver offices. In a <a href="https://newsroom.tiktok.com/en-ca/our-response-to-canadas-order-to-shut-down-tiktok-canada-ca">statement</a>, TikTok pointed out that this action will result in the loss of hundreds of high-paying jobs and have pledged to fight it in court. The order does not block the app for Canadian citizens and content creators, though other countries <a href="https://www.npr.org/2024/04/24/1246663779/biden-ban-tiktok-us">have proposed</a> exactly that. University of Ottawa professor Michael Geist found the ruling misguided, <a href="https://www.michaelgeist.ca/2024/11/canadian-government-to-ban-tiktok-the-company-not-the-app/">writing</a> “[B]anning the company rather than the app may actually make matters worse since the risks associated with the app will remain but the ability to hold the company accountable will be weakened.”OPENAI TAKES PROACTIVE MEASURES FOR ELECTION INTEGRITYOpenAI’s wildly popular generative AI chatbot, ChatGPT, <a href="https://www.cnbc.com/2024/11/08/chatgpt-blocked-250000-image-generations-of-presidential-candidates.html">actively blocked</a> more than 250,000 requests to generate images of U.S. presidential candidates ahead of the election and <a href="https://techcrunch.com/2024/11/08/chatgpt-told-2m-people-to-get-their-election-news-elsewhere-and-rejected-250k-deepfakes/" target="_blank">redirected millions</a> of users to trusted news sites such as Reuters and the Associated Press when the chatbot was asked for candidate information. In a <a href="https://openai.com/index/how-openai-is-approaching-2024-worldwide-elections/" target="_blank">blog</a> posted on its official site, OpenAI detailed the steps taken to ensure its product would not be used for nefarious purposes, writing: “Protecting the integrity of elections requires collaboration from every corner of the democratic process, and we want to make sure our technology is not used in a way that could undermine this process.”DOMAIN NAMES CONTINUE TO INCREASE IN VALUEIn other OpenAI news, the company has purchased the domain <a href="https://chat.com/" target="_blank">chat.com</a> for <a href="https://www.theverge.com/2024/11/6/24289768/openai-chat-chatgpt-sam-altman-hubspot" target="_blank">reportedly</a> more than $ 10 million. The simpler URL is likely to position OpenAI's ChatGPT tool at the forefront of consumer awareness, and “Chat it” may soon become as ubiquitous as “Google it” in the online lexicon. Though the price tag may seem steep, this is probably a <a href="https://www.businessinsider.com/openai-acquires-chat-com-url-website-domain-2024-11" target="_blank">savvy move</a>. URL familiarity has become crucial in the digital marketplace and simple, memorable domain names are now extremely valuable properties. Former MTV VJ Adam Curry was quite possibly the first person to realize this, which may be the weirdest sentence you’ll read this month. He started <a href="https://mtv.com/" target="_blank">mtv.com</a> way back in 1994, but the network was uninterested in getting involved with this newfangled internet thing, so they let him have the domain. When they realized what a staggering mistake they made, <a href="https://law.justia.com/cases/federal/district-courts/FSupp/867/202/1456301/" target="_blank">lawsuits soon followed</a>.

Social Links: Age Verification, X Appeal, and the Great White North

Sick of the “<a href="https://www.tiktok.com/@joolieannie/video/7399736793119247662" target="_blank">very demure, very mindful</a>” social media trend yet? The U.S. Patent and Trademark Office probably is too. Our national nightmare began on August 5 when TikToker Jools LeBron uploaded a video of herself pontificating about the way she dresses and behaves for a job interview, claiming that she was “very modest” while broadcasting self-absorption to millions of online followers (the very definition of modesty). The trend was picked up by a number of other entities—including the <a href="https://www.instagram.com/p/C-vr65nSM-N/?utm_source=ig_web_button_share_sheet" target="_blank">White House</a> and <a href="https://www.facebook.com/share/p/tjeKx23Zj1B9rjBj/">Dunkin’ Donuts</a>—and now LeBron is attempting to <a href="https://www.axios.com/2024/09/09/trademark-disputes-demure-viral-phrase" target="_blank">trademark the phrase</a>. Unfortunately for her, quick-acting IP vultures beat her to it. At least three other applicants with absolutely no connection to the viral trend had the same idea and <a href="https://tsdr.uspto.gov/#caseNumber=98706752&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank">filed to register a trademark</a> before her. Will Jools LeBron become an enduring symbol of cultural excellence like the <a href="https://youtu.be/C7tydu_erZo?si=m3RxTvVJo0AW4Qm0&t=5" target="_blank">Hawk Tuah girl</a>, or will she become irrelevant like art and literature?Utah’s proposed law regulating the use of social media by minors, which we <a href="https://www.sociallyawareblog.com/topics/social-links-july-2024" target="_blank">reported on in July</a>, has been <a href="https://www.reuters.com/world/us/utah-law-restricting-youth-social-media-use-blocked-by-judge-2024-09-11/#:~:text=Sept%2011%20(Reuters)%20%2D%20A,impose%20restrictions%20on%20minors'%20accounts." target="_blank">temporarily blocked</a> by U.S. District Court Judge Robert J. Shelby. In <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/gkvllnwexvb/09102024utah.pdf" target="_blank">the ruling</a>, Judge Shelby wrote that the law likely constitutes an unconstitutional limitation on protected speech and plaintiff NetChoice is “substantially likely to succeed on its claim the Act violates the First Amendment.” NetChoice has successfully blocked similar legislation in several states and recently prevailed in the Supreme Court in <a href="https://www.theverge.com/2024/7/1/24166388/supreme-court-ruling-moody-paxton-texas-florida-social-media-law" target="_blank">two content moderation cases</a>. Judge Shelby summed up the ruling in no uncertain terms, writing that “The court recognizes the State’s earnest desire to protect young people from the novel challenges associated with social media use, but owing to the First Amendment’s paramount place in our democratic system, even well-intentioned legislation that regulates speech based on content must satisfy a tremendously high level of constitutional scrutiny.”<a href="https://www.msn.com/en-ca/music/news/feds-indict-musician-on-landmark-massive-streaming-fraud-charges/ar-AA1q0wI9" target="_blank">By robots, for robots</a>. That’s the new dystopia we apparently find ourselves in. North Carolina-based musician Michael Smith <a href="https://www.justice.gov/usao-sdny/media/1366241/dl" target="_blank">has been indicted</a> in federal court on three counts of wire fraud, wire fraud conspiracy, and money laundering conspiracy. Smith used AI to create hundreds of thousands of songs which he uploaded to multiple music streaming services. He then created thousands of bot accounts to “listen” to his music nonstop, generating more than $10 million in royalty payments. AI-generated music is uncharted territory for artists, labels, publishers, and IP attorneys, as society wrestles with the incredibly fast-moving technology. A number of major record labels are trying to put the <a href="https://www.billboard.com/pro/major-label-lawsuit-ai-firms-suno-udio-copyright-infringement/?utm_source=twitter&utm_medium=social" target="_blank">genie back in the bottle</a>, but a long road of litigation is a near certainty. Perhaps it will be settled by robot lawyers arguing in front of a robot judge on behalf of the <a href="https://www.youtube.com/watch?v=okhQtoQFG5s" target="_blank">robot artists</a> and robot listeners they represent.After an investigation by the EU, X has <a href="https://www.dataprotection.ie/en/news-media/press-releases/data-protection-commission-welcomes-conclusion-proceedings-relating-xs-ai-tool-grok" target="_blank">agreed to comply</a> with the European Data Protection Commission’s guidelines and to stop using personal data to train its AI chatbot, Grok. X has agreed to delete data collected from May 7 to August 1 and cease collecting user data for developing Grok. Despite X’s compliance, the social media giant <a href="https://techcrunch.com/2024/09/06/elon-musks-x-could-still-face-sanctions-for-training-grok-on-europeans-data/" target="_blank">may still face sanctions</a> over AI models trained on the previously collected data. In the U.S., where laws governing data usage are less stringent, <a href="https://www.msn.com/en-us/money/other/how-to-stop-x-from-using-your-posts-to-train-its-ai/ar-BB1qHPJX?apiversion=v2&noservercache=1&domshim=1&renderwebcomponents=1&wcseo=1&batchservertelemetry=1&noservertelemetry=1" target="_blank">users may now opt out</a> of allowing the platform to access their data for AI training, but the process is not intuitive and users are opted in by default.In a <a href="https://ag.ny.gov/sites/default/files/letters/social-warning-label-letter.pdf" target="_blank">letter to Congress</a>, 42 state attorneys general have encouraged lawmakers to pass legislation requiring cigarette-style warning labels on social media platforms. The action was <a href="https://www.theverge.com/2024/6/17/24180005/surgeon-general-warning-labels-social-media-mental-health" target="_blank">spearheaded last June</a> by U.S. Surgeon General Dr. Vivek Murthy after a 2019 AMA study published in the Journal of American Medicine. The impact of so many attorneys general advocating for legislation remains to be seen, but it could very well move the needle in Congress. As the AGs wrote, “A surgeon general’s warning on social media platforms, though not sufficient to address the full scope of the problem, would be one consequential step toward mitigating the risk of harm to youth.” With so many <a href="https://www.ncsl.org/technology-and-communication/social-media-and-children-2024-legislation" target="_blank">states considering legislation</a> to curtail social media use among children, overarching federal guidelines may be inevitable. The issue appears to be bipartisan and has gained real momentum over the last few months.

Social Links: TikTok Trademarks, Social Signposts, and Robot Rock

European Union

The Federal Trade Commission has finalized a <a href="https://www.ftc.gov/business-guidance/blog/2024/08/well-pay-you-give-our-new-rule-good-review">new rule</a> aimed at curtailing false, misleading, and otherwise fraudulent reviews on online retail sites. Fake reviews are a <a href="https://pushpullagency.com/blog/a-deep-dive-into-amazon-consumer-review-statistics/">significant problem</a> for the big e-commerce platforms, given that a robust customer review system is crucial to modern e-commerce business models. In fact, <a href="https://pushpullagency.com/blog/a-deep-dive-into-amazon-consumer-review-statistics/">studies</a> have shown that a one-star rating increase in a product review can result in as much as a 26% increase in sales. Unsurprisingly, this has caused a proliferation of fake reviews and “<a href="https://www.theguardian.com/money/2023/apr/22/it-can-be-incredibly-profitable-the-secret-world-of-fake-online-reviews">review brokers</a>.” The new FTC rule is pretty comprehensive and worth a <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf">full read</a>.New York trademark attorney Jeremy Green Eche hit the jackpot—and may have run afoul of <a href="http://www.internetlibrary.com/publications/anticybsquattSamson9-05_art.cfm">federal anti-cybersquatting law</a>—when he recently sold the HarrisWalz.com domain for $15,000. Eche <a href="https://www.cbsnews.com/news/harris-walz-domain-name-sold-for-1500/">purchased the domain in 2020</a> for $8.50. Though cybersquatting law is focused predominantly on trademark protection, it includes a provision barring any registration that “consists of the name of another living person” without their consent and “with the specific intent to profit” from its sale. This isn’t the first time Eche got lucky purchasing domains. In 2016, he <a href="https://www.usatoday.com/story/news/politics/onpolitics/2016/10/03/clinton-kaine-trump-website/91462708/">sold ClintonKaine.com to the Trump campaign,</a> also for $15,000. Eche denied being profit-driven, noting the relatively low price he put on both the Harris and Clinton domains. That the “relatively low” price happens to be slightly less than the cost of pursuing a cybersquatting case against him is probably just a coincidence, right?The U.S. Court of Appeals for the Ninth Circuit has ruled that employers may be subject to lawsuits based on their employees’ off-work social media posts. In <a href="https://casetext.com/case/okownowsky-v-garland">Okonowsky v. Garland</a>, the court unanimously ruled that an employee of a federal prison was sexually harassed on Instagram by a coworker in violation of Title VII of the 1964 Civil Rights Act. Following the ruling, plaintiff’s attorney Drew Pletcher said, “It appears to be the first holding in the Ninth Circuit to find that social media posts on an Instagram page could be considered workplace harassment under Title VII.” In the wake of this ruling, companies will need to consider whether their employee social media policies adequately address abusive or harassing behavior both inside and outside the workplace, including on personal social media.Ye, the artist formerly known as Kanye West, <a href="https://usaherald.com/kanye-west-faces-1-5m-copyright-suit-over-unauthorized-photo-use/">has been hit</a> with a $1.5 million copyright infringement lawsuit by celebrity photography sites <a href="https://usa.backgrid.com/">BackGrid USA</a> and <a href="https://uk.backgrid.com/">BackGrid UK</a>. The paparazzi companies allege Ye posted 10 BackGrid-owned photos to his Instagram account without permission or compensation. While it may seem counterintuitive that celebrities cannot post photos of themselves on their own social media, this is actually a fairly common fact pattern, and one that we <a href="https://www.sociallyawareblog.com/topics/by-winning-motion-to-dismiss-supermodel-loses-chance-to-clarify-whether-she-can-lawfully-post-photos-of-herself-to-social-media">have covered previously</a>. For Ye, in any event, this will not be the first time he has <a href="https://edition.cnn.com/2014/03/17/showbiz/kanye-west-plea-deal/">tangled with paparazzi</a>.Embattled Georgia attorney Lin Wood has been <a href="https://lawandcrime.com/high-profile/pro-trump-defamation-attorney-lin-wood-must-pay-former-law-partners-4-5-million-after-defaming-them-as-criminal-extortionists-on-social-media/">ordered to pay</a> his former law partners $4.5 million after an <a href="https://www.documentcloud.org/documents/25049449-lin-wood-defamation-damages">Atlanta jury found him liable</a> for defaming them on social media. The feud began, like so many do, as an argument over money. The federal court’s initial <a href="https://storage.courtlistener.com/recap/gov.uscourts.gand.301086/gov.uscourts.gand.301086.90.0.pdf">ruling</a> contained some not-so-subtle jabs at Wood. Judge Michael L. Brown wrote, “During a five-week period the following year, Defendant repeatedly accused Plaintiffs of criminal extortion in a series of messages he posted on a social media platform called Telegram. Hundreds of thousands of people viewed Defendant’s messages.” Brown continued, adding: “Tellingly, Defendant does not even try to show his accusations were true. Indeed, he admits Plaintiffs did not commit ‘the crime of extortion.’ But he insists his extortion accusations were still non-false because they contained ‘loose, figurative, or hyperbolic language’ that no reasonable person could construe as a genuine accusation of criminal conduct. The Court disagrees.” Lin Wood’s Telegram page can be viewed <a href="https://t.me/s/linwoodspeakstruth?before=50839">here</a>.A paywall for Reddit? CEO Steve Huffman <a href="https://www.pcmag.com/news/reddit-ceo-teases-paywalled-subreddits">hinted</a> at subscription-only features for the wildly popular news aggregation and social forum site during an <a href="https://s203.q4cdn.com/380862485/files/doc_financials/2024/q2/Reddit-Q2-24-Earnings-Call_Transcript.pdf">earnings call</a> with investors. Unsurprisingly, Redditors had a snarky, and often hilarious, meltdown on the site. Despite its popularity, Reddit has struggled to become profitable. It’s a top site for AI web scrapers, which prompted the company to <a href="https://www.pcmag.com/news/microsofts-bing-search-engine-gets-ai-overviews-as-reddit-blocks-it">block Microsoft’s Bing</a> search engine and enter into an <a href="https://www.theverge.com/2024/2/22/24080165/google-reddit-ai-training-data">agreement with Google</a> for site access for AI training. Of the data sharing and web scraping situation, Huffman said, “[Our] preference is to have relationships with everybody, but we need to be very considered of where Reddit data goes and what it’s used for.”

 Social Links: Recent Developments in the Law and Business of Social Media

Social Links: Recent Developments in the Law and Business of Social Media

The Federal Trade Commission has finalized a new rule aimed at curtailing false, misleading, and otherwise fraudulent reviews on online retail sites.

Social Links: Recent Developments in the Law and Business of Social Media

Social media giant TikTok has been <a href="https://www.theguardian.com/technology/article/2024/aug/02/us-sues-tiktok-bytedance-child-privacy" target="_blank">sued by the United States</a> for allegedly collecting data on children under thirteen illegally. The suit claims the app, which is owned by China-based parent company ByteDance, allowed millions of children to create accounts without parental knowledge or consent despite <a href="https://www.wired.com/story/tiktok-ftc-record-fine-childrens-privacy/" target="_blank">paying a fine of $5.7 million</a> for similar activity in 2019. The United States is seeking penalties of up to $51,744 per violation, per day. The suit comes just three months after TikTok sued the U.S. government over a law that could ban it across the country. Read the <a href="https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rS0wyWEeUli0/v0" target="_blank">complaint</a> in its entirety.The U.S. Court of Appeals for the D.C. Circuit <a href="https://publishers.org/news/dc-circuit-court-rejects-effs-challenge-to-dmca-confirms-symbiotic-relationship-of-copyright-law-and-free-expression/" target="_blank">has rejected</a> a challenge to one aspect of the Digital Millennium Copyright Act (<a href="https://www.copyright.gov/dmca/" target="_blank">DMCA</a>). The action was initially brought by Electronic Frontiers Foundation (EFF) in 2016 and argued that Section 1201 of the DMCA – which prohibits the circumvention of technological measures that protect copyrighted works – is unconstitutional under the First Amendment. The <a href="https://publishers.org/wp-content/uploads/2024/08/Green-v-DOJ-opinion-2024.08.02.pdf" target="_blank">ruling</a> filed by Judge Nina Pillard states that while the First Amendment protects the right to read, it does not guarantee unrestricted access to all reading materials one might desire and does not guarantee potential fair users exceptional access to copyrighted works they wish to include in their expression. EFF maintains that the decision favors large commercial entities over individual fair users and sets a dangerous precedent for the future.Pickpocketing via tweet? Investor and online financial personality Andrew Left deleted his research firm’s entire tweet history from social media platform X ahead of his 19-count <a href="https://prod-i.a.dj.com/public/resources/documents/andrew-left-indictment07-26-2024.pdf" target="_blank">securities fraud indictment</a> and <a href="https://storage.courtlistener.com/recap/gov.uscourts.cacd.934731/gov.uscourts.cacd.934731.1.0.pdf">SEC lawsuit.</a> According to the SEC complaint, Left allegedly engaged in bait-and-switch schemes that involved making public recommendations contrary to his private trading positions which netted him $20 million in illicit gains between 2018 and 2023. The SEC also accused Left of sharing his planned announcements with at least two hedge funds in advance, receiving a portion of their trading profits in return. Left used X as a platform to promote short positions on a number of major companies including Roku, American Airlines, and Beyond Meat. The government maintains that Left’s public tweets were intended to illegally manipulate the market.<a href="https://www.theguardian.com/technology/article/2024/aug/06/elon-musk-x-advertising-lawsuit-antitrust" target="_blank">X has filed suit</a> against several major companies and a global advertising alliance. The suit accuses them of conspiring to boycott the social media platform and withhold advertising dollars in an attempt to damage the platform. Advertising revenue on X has declined since Elon Musk acquired the company in 2022, with many brands expressing concerns over the platform’s lack of content moderation. X chief executive Linda Yaccarino <a href="https://x.com/lindayaX/status/1820838134470328676" target="_blank">characterized the alleged boycott</a> in terms more sociological than financial, writing: “The consequence – perhaps the intent – of this boycott was to seek to deprive X’s users, be they sports fans, gamers, journalists, activists, parents or political and corporate leaders, of the Global Town Square.”Legislation targeting malicious use of deepfake technology <a href="https://www.govtech.com/policy/lawmakers-introduce-bipartisan-bill-to-fight-ai-deepfakes" target="_blank">continues to expand</a> and seems to be among the very few issues that can reliably garner bipartisan support. Representatives Ashley Hinson (R-IA) and Jake Auchincloss (D-MA) have <a href="https://auchincloss.house.gov/media/press-releases/release-auchincloss-introduces-bipartisan-bill-to-tackle-rise-in-non-consensualdeepfakes-on-social-media-platforms" target="_blank">introduced a bill</a> that would eliminate Section 230 protections for tech companies that allow deepfake pornography on their platforms. The bill would require tech firms to implement a “clear and accessible process for reporting, investigating and removing harmful content within 24 hours.” Additionally, it would require data logging that victims could access and a process for removing the offending content. This House bill is on the heels of related deepfake legislation that recently <a href="https://gizmodo.com/anti-deepfake-porn-bill-unanimously-passes-in-the-senate-2000479051" target="_blank">passed the Senate unanimously</a>.

Social Links: August 2024

Social Links: August 2024

Social media giant TikTok has been sued by the United States for allegedly collecting data on children under thirteen illegally. 

Fair Use

In a rare example of bipartisan agreement, the dramatically named DEFIANCE (Disrupt Explicit Forged Images and Non-Consensual Edits) Act unanimously <a href="https://gizmodo.com/anti-deepfake-porn-bill-unanimously-passes-in-the-senate-2000479051" target="_blank">passed the Senate</a>. The bill allows victims of AI-generated deepfake pornography to sue anyone who knowingly creates, receives, or distributes such images. It only addresses civil liability and only applies to pornographic content, but we would not be surprised to see more expansive legislation in this area in the future.Utah’s stringent social media laws survived a court challenge when a federal judge <a href="https://www.ksl.com/article/51076729/federal-judge-dismisses-claim-in-lawsuit-against-utahs-social-media-laws" target="_blank">dismissed a claim</a> by NetChoice that the legislation was preempted by federal law under Section 230. The dismissal by U.S. District Judge Robert J. Shelby cited autoplay, seamless pagination, and notifications on minors’ accounts as outside the scope of Section 230. Utah has become a <a href="https://www.ksl.com/article/50846522/utah-residents-suing-state-over-soon-to-be-enacted-social-media-restrictions" target="_blank">flashpoint</a> in the debate over social media, its impact on children, and related First Amendment concerns.Meta has <a href="https://about.fb.com/news/2024/07/combating-financial-sextortion-scams-from-nigeria/" target="_blank">removed more than 60,000 accounts</a> involved in sexual extortion scams aimed predominantly at men in the United States. The accounts were based in the fraud hotbed of Nigeria and used sexually compromising photos—both real and fake—to blackmail victims. The vast majority of the now-deleted accounts were on Instagram, but Meta also deactivated more than 7,000 Facebook accounts, pages, and groups that offered advice (including scripts) on how to defraud people. Although mostly targeting adults, there were also attempts against minors, which Meta reported to the U.S. National Center for Missing and Exploited Children.In another uncharacteristically bipartisan vote, the <a href="https://www.nbcnews.com/politics/congress/senate-poised-pass-significant-child-online-safety-bills-decades-rcna164259" target="_blank">Senate voted 91-3 in favor</a> of the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) and the Kids Online Safety Act (KOSA). This is significant legislation that would create a legal “duty of care” for social media companies to prevent and mitigate harm. Violators would be subject to penalties enforced by the Federal Trade Commission. Opponents argue that the bill’s definition of harm is too broad and could lead to censorship of content that promotes politically polarizing issues, gender equality, or abortion rights. The bill will now go to the House, where its passage is less certain. Should it pass, this legislation would dramatically impact the operations of social media companies. We’re watching this very closely.Red-hot AI startup Perplexity has <a href="https://www.msn.com/en-us/news/technology/nvidia-backed-perplexity-ai-inks-deal-with-publishers-to-put-ads-in-search-engine/ar-BB1qTjUy?ocid=BingNewsVerp" target="_blank">entered into agreements</a> with several major media companies including Time, Fortune, and Automattic (owner of WordPress). Perplexity will begin featuring its partners’ content in AI-assisted search results and providing a percentage of the ad revenue. This move is on the heels of plagiarism accusations by news organizations such as Forbes and Condé Nast, the latter of which <a href="https://www.engadget.com/conde-nast-has-reportedly-accused-ai-search-startup-perplexity-of-plagiarism-191639677.html" target="_blank">reportedly sent a cease and desist</a> letter to the startup.The US Copyright Office <a href="https://cointelegraph.com/news/us-copyright-office-reports-urgent-need-protection-ai-law-deepfakes" target="_blank">issued a report</a> calling on Congress to take urgent action on the distribution of unauthorized deepfakes. The report is a result of its 2023 initiative to examine the intellectual property implications of generative AI. The speed of technology has always challenged lawmakers to keep up with bad actors, but AI deepfake capability has moved at staggering speed. <a href="https://www.fastcompany.com/91165063/microsoft-white-paper-new-laws-ai-deepfakes-frauid" target="_blank">Microsoft</a> has also called for Federal legislation addressing deepfakes.

Social Links: July 2024

A recent ruling in <a href="https://casetext.com/case/parziale-v-hp-inc-1" target="_blank" rel="noopener noreferrer">Parziale v. HP, Inc</a>., arising out of the implementation by Hewlett-Packard (“HP”) of <a href="https://refreshcartridges.co.uk/igloo/hp-firmware-updates-april-2019/" target="_blank" rel="noopener noreferrer">a remote firmware update</a> on many models of the company’s printers, highlights the potentially broad application of the <a href="https://www.law.cornell.edu/uscode/text/18/1030" target="_blank" rel="noopener noreferrer">Computer Fraud and Abuse Act (“CFAA”)</a>. It also serves as a reminder to technology companies that when distributing software and firmware updates, they must be mindful of providing specific advance notice that such updates may impact product or computer performance.The Computer Fraud and Abuse ActIn 1986, Congress enacted the CFAA, reportedly in response to concerns arising from the Matthew Broderick film <a href="https://en.wikipedia.org/wiki/WarGames" target="_blank" rel="noopener noreferrer">War Games</a>, in which a teenage computer hacker accesses a U.S. Defense Department computer, unintentionally starts the launch sequence on the U.S. nuclear arsenal thinking it is a computer game, and comes close to starting World War III. Saving us all from annihilation, Broderick teaches the computer that when it comes to global thermonuclear war, “the only winning move is not to play.”The CFAA is the primary computer crime law in the United States. Over the years, it has been amended several times and has broad application. The CFAA criminalizes fraud and certain other specified activities in connection with unauthorized access to computers. The CFAA also provides for civil remedies based on the same prohibited conduct.For instance, a violation of the CFAA may occur when anyone: (i) “intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains . . . information from any protected computer”; (ii) “intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss”; (iii) “intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage”; or (iv) “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period.” Likewise, as claimed in the Parziale v. HP case, a CFAA violation may occur when anyone “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.”A key question in most CFAA cases is whether the defendant acted “without authorization” or “exceed[ed] authorized access.” Notably, the scope of what it means to exceed authorized access is before the Supreme Court this term, with argument in that case scheduled for <a href="https://www.scotusblog.com/case-files/cases/van-buren-v-united-states/" target="_blank" rel="noopener noreferrer">later this month</a>.Parziale v. HP, Inc.In April 2019, HP implemented a remote firmware update on many models of the company’s printers. After the firmware update, certain non-HP ink cartridges stopped working on HP printers.John Parziale, an owner of two HP printers, could no longer use his printers unless he inserted a genuine HP ink cartridge with an original HP chip. Alleging that the update reduced the value of his printers and rendered the non-HP cartridges he already owned useless, he brought an action seeking to certify a nationwide class action suit against HP. Parziale asserted claims under the CFAA, trespass to chattels, and the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).U.S. District Judge Edward Davila of the U.S. District Court for the Northern District of California granted defendant HP’s motion to dismiss all claims.First, the judge dismissed Parziale’s CFAA claims. Parziale argued that HP violated Section 1030(a)(5)(A) of the CFAA, which prohibits “knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer.” Parziale, however, expressly alleged in his complaint that he had relied on the packaging and store page. The store page included a warning that stated:Dynamic security enabled printer. Only intended to be used with cartridges using an HP original chip. Cartridges using a non-HP chip may not work, and those that work today may not work in the future.The judge agreed with HP that Parziale’s express reliance on the warning on the store page made it clear that any damage caused by the firmware update was not “without authorization.” The judge also rejected Parziale’s contention that even if the warning created authorization for HP to implement the firmware update, the authorization did not extend to disabling printers. The judge pointed out that the warning expressly notified consumers that “[c]artridges using a non-HP chip may not work, and those that work today may not work in the future.”Second, the judge also dismissed Parziale’s FDUTPA claims. Under the FDUTPA, a consumer claim for damages has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. An act or practice is “unfair” if it causes consumer injury that is: (i) substantial, (ii) not outweighed by any countervailing benefits to consumers or competition, and (iii) one that consumers themselves could not have reasonably avoided.According to the judge, there was no dispute that Parziale adequately pled a substantial injury. Parziale also adequately alleged that “the harm caused by forcing consumers to purchase more expensive ink cartridges” and by rendering their already purchased non-HP ink cartridges worthless, the harm outweighed any countervailing benefits to consumers. On the third prong, however, the judge found in HP’s favor. This prong tests if consumers have reason to anticipate the impending harm and the means to avoid it. In the judge’s view, the warning on the store page was sufficient to allow a reasonable consumer to anticipate any impending harm caused by a printer becoming incompatible with non-HP cartridges. Because they were put on notice, consumers could simply buy a different printer or not buy non-HP cartridges with potential compatibility issues in the future. In other words, they had the means to avoid any impending injury.Finally, the judge dismissed Parziale’s trespass to chattels claims. <a href="https://www.courtlistener.com/opinion/2478126/ebay-inc-v-bidders-edge-inc/?" target="_blank" rel="noopener noreferrer">To prevail on a claim for trespass, the plaintiff must establish</a>: (1) defendant intentionally and without authorization interfered with plaintiff’s possessory interest in the computer system; and (2) defendant’s unauthorized use proximately resulted in damage to plaintiff.Thus, the trespass claim also hinged on whether HP acted “without authorization.” The judge had already found under the CFAA claim section that HP did not act without authorization because Parziale was on notice of HP’s ability to interfere with his printers.Key TakeawaysIn HP’s case, the warning on the store page was quite clear that non-HP cartridges may not continue to work after the update. Given the clear notice to consumers and Parziale’s own express reliance on the notice, Judge Davila did not have much trouble dismissing all of Parziale’s claims. But other cases alleging that software or firmware was updated “without authorization” and caused damage may not be so clear cut. Such cases may necessitate fact-intensive inquiries. Companies that fail to give clear advance notice as to the impact of their updates may find themselves in a weaker position.

Platform Liability

Commercial Litigation and Intellectual Property

International Arbitration

Bankruptcy Litigation

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Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

J. Lawrence

J. Alexander Lawrence

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Avoiding Claims Under the Computer Fraud and Abuse Act in Connection with Software and Firmware Updates

Avoiding Claims Under the Computer Fraud and Abuse Act in Connection with Software and Firmware Updates

A recent ruling in Parziale v. HP, Inc., arising out of the implementation by Hewlett-Packard (“HP”) of a remote firmware update on many models of the company’s

Litigation

Singapore has enacted a law granting government ministers the power to require social media platforms to completely <a href="https://www.theguardian.com/world/2019/oct/02/chilling-singapores-fake-news-law-comes-into-effect" target="_blank" rel="noopener">remove or place warnings alongside posts the authorities designate as false</a>.Unlike the compensation earned by child stars who perform on television, in films, or on other traditional media in California, the income generated by children who perform on social media—“kidfluencers”—<a href="https://www.hollywoodreporter.com/news/why-child-social-media-stars-need-a-coogan-law-protect-parents-1230968" target="_blank" rel="noopener">still isn’t protected under California law</a>.The Federal Trade Commission is suing Match Group, the owner of dating sites including Match.com, Tinder, OkCupid and Plenty of Fish, for allegedly tricking hundreds of thousands of Match.com users into subscribing by <a href="https://www.ftc.gov/news-events/press-releases/2019/09/ftc-sues-owner-online-dating-service-matchcom-using-fake-love" target="_blank" rel="noopener">disingenuously implying that their profiles were getting a lot of attention</a> from other users.Speaking of dating sites, OKCupid is auditing photos posted by its users and <a href="https://NYPOST.COM/2019/09/18/PLENTY-OF-FISH-AND-OTHER-APPS-ARE-GOING-FILTER-FREE/" target="_blank" rel="noopener">banning the ones that employ filters</a>.Instagram and Facebook are testing the practice of <a href="https://www.nytimes.com/2019/09/26/technology/facebook-hidden-likes.html?action=click&amp;module=Well&amp;pgtype=Homepage&amp;section=Technology" target="_blank" rel="noopener">making the “likes” on a person’s posts invisible to other users</a>. Some marketers say that eliminating engagement metrics such as “likes” will have a <a href="https://www.nytimes.com/2019/09/26/technology/facebook-hidden-likes.html?action=click&amp;module=Well&amp;pgtype=Homepage&amp;section=Technology" target="_blank" rel="noopener">significant effect on the influencer marketing industry</a>.<a href="https://www.businessinsider.com/facebook-instagram-youtube-killing-like-subscribers-2019-9?r=US&IR=T?utm_source=copy-link&utm_medium=referral&utm_content=topbar&utm_term=desktop" target="_blank" rel="noopener">YouTube is modifying its popularity metrics too</a>, citing a concern for its users’ mental health.Also motivated by concern for their users’ wellbeing, Instagram and Facebook have adopted <a href="https://www.theverge.com/2019/9/18/20872711/instagram-weight-loss-cosmetic-procedures-restrictions-policy-wellness-influencer-marketing" target="_blank" rel="noopener">a new policy</a> regarding posts promoting weight loss products and certain types of cosmetic surgery.Based in China, the social media network TikTok is incredibly popular, having been downloaded more than 104 million times in the United States since its U.S. debut in 2017. Although the network has sparked controversy in several ways—including its parent company’s $1 billion spend on ads to achieve TikTok’s meteoric rise—the revolutionary artificial intelligence that the network employs to gather data about its users <a href="https://medium.com/fast-company/is-tiktok-a-time-bomb-cad748509941" target="_blank" rel="noopener">might be the biggest cause for concern</a>, according to Hootsuite CEO Ryan Holmes.Librarians are not happy with LinkedIn. <a href="https://www.cnbc.com/2019/08/28/linkedin-change-to-learning-tools-registration-upsets-librarians.html">Here’s why</a>.Is antagonizing your brand’s competition on social media a sound marketing strategy? It <a href="https://www.nytimes.com/2019/08/21/business/popeyes-chicken-sandwich-twitter.html?fallback=0&recId=1Q42uFs1kQYfT2EET72OfUbWHsN&locked=0&geoContinent=NA&geoRegion=NJ&recAlloc=story&geoCountry=US&blockId=home-featured&imp_id=493912177&action=click&module=editorsPicks&pgtype=Article&region=Footer" target="_blank" rel="noopener">worked for Popeye’s</a> last summer.

A dating platform’s alleged fraud; a decline in the popularity of popularity metrics; TikTok’s unique AI

Singapore has enacted a law granting government ministers the power to require social media platforms to completely remove or place warnings alongside posts the

A dating platform’s alleged fraud; a decline in the popularity of popularity metrics; TikTok’s unique AI

Influencer Marketing

Antitrust

Asia

Autonomous Vehicles