Doomed (in a Bad Way)
Doomed: User-Generated Content. It has become political orthodoxy to oppose Section 230. Multiple presidential candidates expressly targeted Section 230 in their campaign platforms. Speaker Pelosi called Section 230 a “gift” (it’s true—Section 230 has been a gift to all Americans). Countless members of Congress have criticized Section 230. Several awful Section 230 reform bills were introduced this year, including pro-censorship proposals from Sen. Hawley and Rep. Gosar and special-interest patronage to landlords and hotels. Though those proposals aren’t likely to succeed, Section 230’s fate is almost certainly sealed. As a result, I put user-generated content (and any competitive dynamism among Internet services) on the endangered watch list.
In response to the unrelenting interest in reforming Section 230, a broad coalition of experts adopted a statement of principles for evaluating UGC liability proposals. I encourage you to use the principles as a diagnostic for future Section 230 amendments.
The UGC situation is even worse internationally. Consider the UK Online Harms White Paper. The UK is no stranger to censorious laws, but the white paper would ratchet up censorship to 11. Among other structural defects, it would require Internet services to take action against lawful-but-awful content. In other words, Internet services could be liable for not controlling perfectly legal content. What???
The regulatory response to the Christchurch shooting livestream previews our future. The video was probably lawful, and it certainly had important news value. Yet, governments across the globe took the position that the video was categorically illegal and thus should be banned from social media. Indeed, YouTube and Facebook went to extreme lengths to block new uploads of the video, but they were thwarted by the rapid proliferation of variants that overwhelmed their normal blocking technology. It got so bad that YouTube temporarily stopped uploads of ALL videos. In other words, YouTube suspended its core publication function because of a single probably-legal video. A harbinger of things to come.
As I explain in my comments to U.K.’s white paper, this regulatory direction will surely eliminate most UGC in the UK and morph the Internet towards 1990s-style walled gardens of professionally produced content. Essentially, the future Internet will likely look a lot like Netflix.
Doomed: Print-on-Demand Services. Due to their offline activities, print-on-demand developers cannot get the full benefit of either Section 230 or Section 512. Without those protections, the services essentially face strict liability for user-submitted content–an untenable legal position, as highlighted by cases such as Greg Young v. Zazzle and HD v. Sunfrog. OSU v. Redbubble offered a glimmer of hope, but it’s illusory. Redbubble defeated direct trademark liability only by outsourcing its key functions; and a secondary trademark claim against Redbubble, or a direct trademark claim against Redbubble’s outsource vendors, should lead to the inevitable denouement. I continue to believe that legislative protection is the only hope for the long-term survival of the industry niche.
Doomed: Online Marketplaces. In HomeAway v. Santa Monica, the Ninth Circuit held that Section 230 did not apply to booking travel services. All online marketplace transactions could become a Section 230-free zone, essentially opening up unlimited regulation from an unlimited range of regulators. Meanwhile, Amazon was the seller of marketplace goods in Oberdorf v. Amazon, which mooted Section 230 protection for those transactions and exposed Amazon to potentially limitless liability. (The case is being heard en banc). Online marketplaces historically have had some success using Section 230 to protect them from liability for marketplace goods; see eBay’s successes from nearly 20 years ago. The HomeAway and Oberdorf cases suggest that those days could be ending, which would likely spell doom for the entire genre of online marketplaces.
Doomed: Internet Access Providers. Section 512(a) does not always protect IAPs from liability for user-caused copyright infringement, so IAPs are having a rough go in court…such as the $1B jury verdict against Cox in the Sony case.
Doomed: Cybersecurity. The Ninth Circuit’s ruling in Enigma v. Malwarebytes essentially held that competitors could plead around Section 230(c)(2)(B) by alleging anti-competitive animus in filtering decisions. That doesn’t ensure that competitors will win a misclassification case against the filter vendors. However, without Section 230(c)(2)(B)’s fast lane, filter vendors are more likely to err on the side of inclusion, especially when it comes to anyone who could plausibly claim to be a competitor, even for shady-as-AF putative competitors. That will make the Internet less secure.
Doomed: Sex Workers and Sex Trafficking Victims. The empirical evidence keeps mounting that FOSTA was terrible policy. It hurt commercial sex workers, reduced law enforcement efforts in finding and rescuing sex trafficking victims, and shrunk the Internet’s boundaries for content unrelated to sex trafficking.
Meanwhile, we’ve seen an uptick in sex trafficking claims against Internet services (only occasionally using FOSTA) in ways that I can’t believe Congress intended. The claims rely on strained tertiary liability theories, i.e., suing a defendant for providing services to Backpage (or an analogous site) that provided publication services to advertisers who are the real bad actors. If these lawsuits make any progress in court, there is a virtually unlimited universe of potential tertiary liability defendants.
Doomed: the CCPA. The California legislature did very little to “improve” the CCPA, and the introduction of a second ballot initiative threatens to move the goalposts again and cause more chaos. Our only hope is a federal preemptive law, ASAP.
Doomed (in a not-terrible sense)
Doomed: “Must-Carry” Obligations for Publishers Who Aren’t State Actors. The Supreme Court’s Halleck case was a powerful ruling against publisher “must-carry” obligations. Many lower court decisions reached the same conclusion on a wide range of theories (an exemplar is FAN v. Facebook).
Doomed: the Roommates.com Section 230 Exception. Building on the First Circuit’s watershed Doe v. Backpage ruling (which remains my #3 most important Section 230 ruling of all time), a string of powerful appellate decisions held that Section 230 protects UGC websites’ design decisions, including Dyroff v. Ultimate Software (Ninth Circuit), Force v. Facebook (2d Circuit), Herrick v. Grindr (2d Circuit), and Daniel v. Armslist (Wisconsin Supreme Court). Although they don’t directly overrule Roommates.com, these cases are incompatible with the sloppy dicta from Roommates.com. I grow increasingly skeptical of efforts to cite Roommates.com favorably.
Doomed: Cases Against Social Media Services for Terrorist Content. 12 different social media/terrorist cases have resulted in defense wins on a variety of grounds: failure of the prima facie elements, lack of proximate causation, and Section 230. The Second Circuit’s Force v. Facebook ruling was a particularly emphatic rejection.
Doomed: the Liebowitz Copyright Litigation Machine. Richard Liebowitz of New York has filed about 2,000 lawsuits against online publishers. Many of these cases have gone incredibly poorly, and one probable scenario is that he—like other litigation mills—will leave a legacy of defense-favorable rulings and bar discipline.
Doomed: Politicians Banning Constituents on Social Media. The Knight First Amendment v. Trump ruling confirmed that politicians who block constituents on social media are engaging in unconstitutional censorship. This ruling spurred countless politicians to review their social media blocks.
Online Political Content and Ads. It’s noteworthy when the major social media services adopt divergent policies, and in 2019 that happened in two important areas involving political content.
First, you may recall the slowed-down video of Speaker Pelosi implying that she was drunk. YouTube deleted it, Twitter left it up, and Facebook downgraded it.
Second, we saw a similar divergence with respect to political ads. Twitter banned them outright. Facebook adopted a non-interventionist policy, essentially green-lighting the worst kinds of political advertising. Google took a middle ground, vowing to fact-check political ads and prevent them from being microtargeted.
These divergences reinforce that there is no one right content policy. Regulators should celebrate this diversity as evidence of competition and as a natural experiment to see what works and what doesn’t. Instead, regulators will conclude that all of the major services are doing it wrong, because two other services chose different answers.
In a partially related development, the Fourth Circuit struck down Maryland’s efforts to mandate disclosures about online political advertising. This ruling casts doubt over other laws mandating online transparency reports. This is a sleeper candidate for the highest-impact ruling of 2019.
hiQ v. LinkedIn. I personally thought the Ninth Circuit’s ruling in the case was fairly narrow, but it’s been celebrated as a major constriction of trespass to chattels doctrines.
Lists from prior years
Previous top 10 lists from 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007 and 2006. Before that, John Ottaviani and I put together a list of top Internet IP cases for 2005, 2004 and 2003.
My 2019 Writings
In addition to about 150 blog posts here, my works from this year:
- Why Section 230 Is Better Than the First Amendment, 95 Notre Dame L. Rev. Reflection 34 (2019)
- Internet Immunity and the Freedom to Code, 62 Comm. of the ACM 22 (Sept. 2019)
- Internet Law: Cases & Materials (2019 edition)
- The Complicated Story of FOSTA and Section 230, 17 First Amendment L. Rev. 279 (2019)
- Want to Kill Facebook and Google? Preserving Section 230 Is Your Best Hope, Balkinization, June 3, 2019
- The U.K. Online Harms White Paper and the Internet’s Cable-ized Future, Ohio State Tech. L.J. ___ [in press]
- Copyright’s Memory Hole, __ BYU L. Rev. __ (with Jessica Silbey) [in press]
- An Overview of the United States’ Section 230 Internet Immunity, The Oxford Handbook of Online Intermediary Liability (Giancarlo Frosio, ed.) [in press]
- Why Can’t Internet Companies Stop Awful Content?, Ars Technica, November 27, 2019 (with Jess Miers)
- COFC Case Reveals Longevity of Online Copyright Claims, Law360, September 10, 2019
- Comments on the California Consumer Privacy Act (CCPA) draft regulations by the California Department of Justice, December 2019
- Enigma Software v. Malwarebytes, petition for rehearing at the Ninth Circuit (amicus brief supporting rehearing on behalf of 7 cybersecurity law professors), November 2019 (with Venkat Balasubramani)
- 1-800 Contacts v. Federal Trade Commission, appeal to the Second Circuit (amicus brief supporting the FTC on behalf of 29 IP, Internet Law and Antitrust professors), September 2019 (with Mark Lemley)
- Liability for User-Generated Content Online: Principles for Lawmakers, on behalf of 50 academics and 27 civil society organizations, July 2019
- Comments on the UK Online Harms White Paper, July 2019
- Boosting Patentee Diversity By Relaxing the Technical Barriers to Patent Bar Membership, Comments regarding the SUCCESS Act (Docket No. PTO–C–2019–0010) to the U.S. Patent & Trademark Office (USPTO) on behalf of 22 signatories, June 2019
- Letter on behalf of 41 California privacy experts to the California legislature regarding the California Consumer Privacy Act, January 2019