Name: EFF to Court: Don’t Let Pseudo-IP Thwart Speech, Innovation, and Competition
Brand: eff.org
SKU: eff-org-487
Availability: OnlineOnly

critic

EFF to Court: Don’t Let Pseudo-IP Thwart Speech, Innovation, and Competition

preview

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItThe threats to online expression and innovation keep coming. One that’s flown under the radar is a misguided effort to convince the Third Circuit Court of Appeals to allow claims based on the “right of publicity,” (i.e., the right to control the commercial exploitation of your persona) because some people think of this right as a form of “intellectual property.” State law claims are normally barred under Section 230, a and online expression. But Section 230 doesn’t apply to “intellectual property” claims, so if publicity rights are intellectual property (“IP”), the theory goes, intermediaries can be sued for any user content that might evoke a person. That interpretation of Section 230 would effectively eviscerate its protections altogether.Good news: it’s wrong.Bad news: the court might not see that, which is why EFF, along with group of small tech companies and advocates, filed to help explain the law and the stakes of the case for the internet.The facts here are pretty ugly. The plaintiff is a reporter who discovered that an image of her caught on a surveillance camera was being used in ads and shared on social media without her permission. She’s suing Facebook, Reddit, Imgur and a porn site for violating her publicity rights, The district court on Section 230 ground, following strong precedent from the Ninth Circuit holding that the IP carveout doesn’t include state law publicity claims. Hepp appealed.As we explain in our brief, the court should start by looking at Section 230 itself. Generally, if the wording of a law makes sense to a general reader, a court will keep things simple and assume the straightforward meaning. But if the words are unclear or have multiple meanings, the court has to dig deeper. In this case, the term at issue, “intellectual property,” varies widely depending on context. The term didn’t even come into common use until the latter half of the 20th Century, but it’s now used loosely to refer to everything from trade secrets to unfair competition.Given that ambiguity, the court should look beyond the text of the law and consider Congress’ intent. Within the context of Section 230, construing the term to include publicity rights is simply nonsensical.Congress passed Section 230 so that new sites and services could grow and thrive without fear that a failure to perfectly manage content that might run afoul of 50 different state laws might lead to crippling liability. Thanks to Section 230, we have an internet that enables new forms of collaboration and cultural production; allows ordinary people to stay informed, organize and build communities in new and unexpected ways; and, especially in a pandemic, helps millions learn, work and serve others. And new platforms and services emerge every day because they can afford to direct their budgets toward innovation, rather than legal fees.Excluding publicity rights claims from the immunity afforded by Section 230&nbsp;would put all of that in jeopardy. In California, publicity rights protections apply to virtually anything that evokes a person, and endure for 70 years after the death of that person. In Virginia, a publicity rights violation can result in . Alaska doesn’t recognize a right of publicity at all. Faced with a panoply of standards, email providers, social media platforms, and any site that supports user-generated content will be forced to tailor their sites and procedures to ensure compliance with the most expansive state law, or risk liability and potentially devastating litigation costs.For all their many flaws, copyrights and patent laws are relatively clear, relatively knowable, and embody a longstanding balance between rightsholders, future creators and inventors, and the public at large. Publicity rights are none of these things. Instead, whatever we call them, they look a lot more like other torts, like privacy violations, that are included within Section 230’s traditional scope.Ms. Hepp has a good reason to be angry, and we didn’t file our amicus because we are concerned about the effects of an adverse ruling on Facebook in particular, which can doubtless afford any liability it might incur. The problem is everyone else: the smaller entities that cannot afford that risk, or even the ; and the users who rely on intermediaries to communicate with family, friends and the world, and who will be unable to share content that might include an image, likeness or phrase associated with a person should those intermediaries be saddled with defending against state publicity claims based on their users’ speech.What is worse, it will help entrench the current dominant players. Section 230 led to the emergence of all kinds of new products and forums but, equally importantly, it has also kept the door open for competitors to follow. Today, social media is dominated by Twitter, Facebook and Youtube, but dissatisfied users can turn to Discord, Parler, Clubhouse, TikTok and Rumble. Dissatisfied Gmail users can turn to Proton, Yahoo!, Riseup and many others. None of these entities, entrenched or emergent, would exist without Section 230.Hepp’s theory raises that barrier to entry back up, particularly given that intermediaries would face potential liability not only for images and video, but mere text as well. To mitigate that liability risk, any company that relies on ads will be forced to try to screen potentially unlawful content, rewrite their terms of service, and/or require consent forms for any use of anything that might evoke a persona. But even strict terms of service, consent forms, and content filters would not suffice: many services will be swamped by meritless claims or shaken down for nuisance settlements. Tech giants like Facebook&nbsp;and Google might survive this flood of litigation, but nonprofit platforms and startups – like the next competitors to Facebook and Google – . And investors who would rather support innovation than lawyers, filtering technologies, and content moderators, will choose not to fund emerging alternative services at all.Share ItStop us if you’ve heard these: piracy is driving artists out of business. The reason they are starving is because no one pays for things, just illegally downloads them. . These arguments are old and being to get support for rules...In response to the very real pressures that online news outlets are facing, Congress continues to believe the very flawed Journalism Competition and Preservation Act (JCPA) is a magic solution. It is not. In fact, it is actively dangerous. And there’s a available....Much of what we do online involves reproducing copyrightable material, changing it, and/or making new works. Technically, pretty much every original tweet is copyrightable. And the vast majority of memes are based on copyrighted works. Your funny edits, mashups, and photoshopped jokes manipulate copyrighted works into new ones. Effective communication...It often feels like machine learning experts are running around with a hammer, looking at everything as a potential nail - they have a system that does cool things and is fun to work on, and they go in search of things to use it for. But what if we...California residents finally have a law designed to dismantle some of the secrecy around domestic acquisitions of warzone surveillance equipment.The weapons of the United States military—drones, mobile command centers, sound cannons, and more—have been handed off to local law enforcement for years. The transfers have equipped police departments with the...The Court of Justice of the European Union has issued a long-awaited judgment on the compatibility of the EU Copyright Directive’s filtering requirements with the Charter of Fundamental Rights of the European Union. The ruling recognizes the tension between copyright filters and the right to freedom of expression, but falls...The joy of tinkering, making, and sharing is part of the human condition. In modern times, this creative freedom too often is stifled by secrecy as a means of monetization - from non-compete laws to quashing people’s right to repair the products they’ve already paid for.Adam Savage—the maker extraordinaire best...Copyright filters are having a bit of a moment in Washington D.C. The with a process to determine what, if anything, constitutes a standard technical measure (STM) that platforms would have to accommodate. And, if that proves too onerous, ...Today, EFF joins a diverse coalition of civil society and tech companies to call on Congress to pass strong anti-monopoly rules for the Internet. We do this because it has long been EFF’s belief that users have the right to make their own choices—and the current state of Big Tech...When a pipeline bursts, journalists might want to investigate whether the pipeline complied with federal regulations. When a toy is recalled, parents want to know whether its maker followed child safety rules. When a fire breaks out, homeowners and communities want to know whether the building complied with fire safety...Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItThe threats to online expression and innovation keep coming. One that’s flown under the radar is a misguided effort to convince the Third Circuit Court of Appeals to allow claims based on the “right of publicity,” (i.e., the right to control the commercial exploitation of your persona) because some people think of this right as a form of “intellectual property.” State law claims are normally barred under Section 230, a and online expression. But Section 230 doesn’t apply to “intellectual property” claims, so if...

public

Corynne McSherry

We're the Electronic Frontier Foundation. We defend your civil liberties in a digital world.

EFF to Court: Don’t Let Pseudo-IP Thwart Speech, Innovation, and Competition

No article scores yet.

CRITIC REVIEWS

PUBLIC REVIEWS