Judge To Zuckerman: Release Your App First, Then We’ll Talk Section 230
from the chilling-effects dept
The first shot to use Section 230 to force adversarial interoperability on platforms has hit a setback.
Earlier this year, we wrote about an absolutely fascinating lawsuit that was an attempt to activate a mostly-ignored part of Section 230 in a really interesting way. Most people know about Section 230 for its immunity protections for hosting and content moderation of third party content. But Section (c)(2)(B) almost never warrants a mention. It says this:
No provider or user of an interactive computer service shall be held liable on account of any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)
This part of the law almost never comes up in litigation, but Ethan Zuckerman, who has spent years trying to inspire a better internet (partly as penance for creating the pop-up ad), along with the Knight First Amendment Institute at Columbia, tried to argue that this section means that a platform, like Meta, can’t threaten legal retaliation against developers who are offering third party “middleware” apps that work on top of a platform to offer solutions that “restrict access to material” on a platform.
The underlying issue in the lawsuit was that Ethan wanted to release a plugin called “Unfollow Everything 2.0” based on an earlier plugin called “Unfollow Everything,” which allowed Facebook users to, well, unfollow everything. This earlier plugin was created by developer Louis Barclay, after he found it useful personally to just unfollow everyone on his Facebook account (not unfriend them, just unfollow them). Meta banned Barclay for life from the site, and also threatened legal action against him.
In the last few years, it’s unfortunately become common for the big platforms to legally threaten any service that tries to build tools to work on top of the service without first getting permission or signing some sort of agreement to access an API.
These legal threats have wiped out the ability to build tools for other platforms without permission. They’ve also very much gotten in the way of important “adversarial interoperability” tools and services that history has shown have been vital to innovation and competition.
So the argument from Zuckerman is that this little snippet from Section 230 says that he can’t face legal liability for his tool. Meta could still take technical actions to try to break or block his app, but they couldn’t threaten him with legal actions.
Meta’s response to all of this was that the court should reject Zuckerman’s case because the specifics of the app matter, and until he’s released the app, there’s no way to actually review this issue.
The Court should decline Plaintiff’s request to invoke this Court’s limited jurisdiction to issue an advisory opinion about a non-existent tool. Plaintiff’s claims—which are contingent on facts that cannot be known until after he has created and released Unfollow Everything 2.0 and Meta has had an opportunity to evaluate how the tool actually works—are not ripe for review under either Article III of the Constitution or the Declaratory Judgment Act, 28 U.S.C. § 2201.
It appears that the judge in the case, Judge Jacqueline Scott Corley, found that argument persuasive. After a hearing in court last Thursday, the judge dismissed the case, saying that Zuckerman could conceivably refile once the app is released. While a written opinion is apparently coming soon, this is based on what happened in the courtroom:
Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted Meta’s request to dismiss the lawsuit on Thursday, according to court records. The judge said Mr. Zuckerman could refile the lawsuit at a later date.
This is perhaps not surprising, but it’s still not good. It’s pretty obvious what would happen if Zuckerman were to release his app because we already know what happened to Barclay, including the direct threats to sue him.
So, basically, the only way to move forward here is to put himself at great risk of facing a lawsuit from one of the largest companies in the world with a building full of lawyers. The chilling effects of this situation should be obvious.
I don’t know what happens next. I imagine Zuckerman can appeal to the Ninth Circuit, or he could actually try to release the app and see what happens.
But seeing as how the big platforms have spent over a decade abusing legal threats against companies that are just trying to help build products on top of those platforms, it would have been nice to have received a clean win that such “middleware” apps can’t be blocked through legal intimidation. Unfortunately, we’re not there yet.
Filed Under: adversarial interoperability, ethan zuckerman, interoperability, jacqueline scott corley, middleware, section 230
Companies: meta
Comments on “Judge To Zuckerman: Release Your App First, Then We’ll Talk Section 230”
The judge is wrong, possibly. Was the app already written? If so, then he has standing under declaratory judgement standing.
The judge said though “Non-existent app.” If the app is not yet written, she is correct.
Re:
Given the lack of traditional linking to source coverage or source documents, we lack any of the details necessary to assess your comment. There are lots of details this hinges on, and that’s kinda the point of the court.
That said, from the description provided, I read the issue not as standing, but ripeness. The claim appears to be that until Zuckerman Publishes, the threat of harm is not ripe.
Of greater concern to me is that this implies, like fair use, there can never be the clean win Mike is looking for. Every app must be assessed for the details individually.
Re: Re:
Would you say that, in the case that the app actually does exist but is not released (a fact that one would assume the Court knows by now because it does not make sense for the Court not to have that fact established by now), that the Court should have asked to see the app? If so, then the ruling implies the app does not exist?
Or am I missing something?
Re: Re: Re:
What the court should or should not do is not my lane. I am attempting to interpret the court to correct your misunderstanding of what the problem is.
The ruling does not imply the app doesn’t exist, only that the app isn’t published, and it (factually) could change in any number of ways between what it is now and what is published. He could have an entire code base with changes specifically to make it more palatable to a court. I don’t think Zuckerman does, it is important to note.
Because of this, no amount of showing the code or the app changes the court’s analysis. UNtil Zuckerman actually publishes, no harms can be incurred, and an effort to apply section 230 in a novel way should come from an actual, not theoretical risk.
Do I agree with the court here? No. Digital distrubution and automatic updates makes the stability of the published product no better. But it is not due to a claim the code is not availible (though, ive certainly seen no evidence Zuckerman has a finished product yet either).
Re: Re: Re:2
The Knight Center was quoted by the NYT as saying “We’re disappointed the court believes Professor Zuckerman needs to code the tool before the court resolves the case,”. So it may not exist yet.
Sidenote: The reason there doesn’t seem to be normal sourcing is the written decision hasn’t been released yet: https://knightcolumbia.org/cases/zuckerman-v-meta-platforms-inc
Status: At a hearing on November 7, 2024, the district court dismissed the case without prejudice, saying that a written order would follow.
We might have to wait a bit to get the full text.
Re: Re:
I stand corrected on the Ripeness/Standing issue. Though without ripeness, there is no standing. But I was sloppy, and you are correct.
I’ve read a little bit about this case. It’s a shame, I feel like a tool such as what Zuckerman was making could’ve been really healthy for the social media enviroment.
Skipping a step
Would the next logical step after agreeing with Meta that the details of the app matter be to give Zuckerman the opportunity to reveal the details of the app to the court (and possibly/presumably Meta) and then continue the trial with that information?
If Meta is worried about revealing the source code being effectively distributing the app, then perhaps they could have the details released only to the Court and Meta’s lawyers and experts?
I mean I’ve never fully understood suing for judgement ahead of time as anything but trying help damage from not happening to both parties.
shrug
Re:
The ruling, as little of it as we have due to a lack of sources for the quotes in the article, implies nothing can be done until the dispute is ‘ripe’ by publishing the app. That the court would not entertain performing such an analysis on the unreleased product that might change before release (while the rapid turn around of digital distribution makes the pre-launch/post-launch distinction less meaningful, reading this distinction in the courts analysis is the only way any of this makes sense).
To my read, nothing here implies Trade secrets are the cause of the dismissal, which would be the claim behind a need to hide source code.
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Minimize
Perhaps the dev can release it in some kind of test state, maybe even limited to only a few people with an additional activation code. While technically it would be downloadable to anyone, it would only function for a small handful of people. Any attempt by FB to collect for damages would be mitigated by the fact that only 2 or 3 accounts actually engaged in the unfollowing.
Re:
Perhaps you could not be a twat for five whole minutes. Either outcome is equally likely.
'Risk getting shot and THEN we'll rule on if they can point the gun at you.'
The entire point of asking for declaratory judgement is to avoid getting sued, and given what happened to the last person that is not a baseless worry, so the judge telling him to release the app and open himself up to that possibility kinda defeats the purpose of that being an option in the legal system to begin with.
Anyway, Meta will say: Tell us what you need, and we’ll explain to you why you cannot have it.
He’s already committed to releasing the app:
https://arstechnica.com/tech-policy/2024/11/meta-beats-suit-over-tool-that-lets-facebook-users-unfollow-everything/
But back in May, Zuckerman told Ars that he would proceed with releasing the tool whether he won his lawsuit or not.
That said, it seems like the tool might not actually be written/finished? One of his lawyers was quoted by the NYT as saying “We’re disappointed the court believes Professor Zuckerman needs to code the tool before the court resolves the case,”. Which doesn’t necessarily mean anything about releasing it. We probably have to wait for the actual text to know which.
Case in controversy
Yeah, this was going to be the likely outcome if the app had yet to be released. You need a case in controversy to be able to move forward. Even declaratory relief under 28 U.S. Code § 2201 generally requires a case in controversy. If there is no app released, there is no controversy… yet.
Lemme get this straight;
A written law aint a law till someone breaks it.
Is that about right?
Re:
More accurately, “A law ain’t a law until the Court enforces it.”
Re: Re:
How does a court enforce a law that has never been broken by anyone? Who is the responsible party being “enforced” by the courts using said law? A little confusing, yes?
Imaginary harm
It’s clear that the court can’t and shouldn’t let this guy create an imaginary scenario and be forced to rule on that. If he wanted that outcome he should’ve opened a Christian wedding website company.
Re:
Why not? It’s been done before.
I already fixed that
When I did not Facebook…
I know I…
What do you expect?
Decision seems correct to me
As I read the decision and the comments, it’s not just that he has not published; it is that Zuckerman has not yet created the tool. There is therefore no ripe controversy.
What everyone's missing
The thing is, Meta seems to be making claims based on copyright, meaning Section 230 doesn’t come into it. Instead, this case seems to be based on Meta’s not acknowledging the fact that accessing copyrighted software for the purposes of interoperability with another program doesn’t violate copyright law.