Another Bad Ruling In California Threatens To Massively Undermine Section 230 By Exempting Publicity Rights

from the this-is-bad dept

What a week. Just a few days after we wrote about a dangerous ruling in a federal appeals court in California concerning a way to get around Section 230 of the CDA, now we have another problematic CDA 230 ruling from California in the form of a ruling from San Mateo Superior Court judge, Donald Ayoob, that has the potential to do a lot of damage to Section 230 as well as anti-SLAPP efforts in California. Paul Levy has a very detailed post about the case, but we'll try and do a summary here.

The case involves Jason Cross, a "country rap" musician who performs under the name Mikel Knight, who has apparently made a name for himself through a highly aggressive "street team" operation that basically travels around in vans pushing people to buy Knight's CDs -- and there are plenty of accusations of sketchy behavior around how those street teams operate, and how Cross treats the people who work for him. Apparently, Cross was not happy with a Facebook group entitled "Families Against Mike Knight and the MDRST" (MDRST standing for Maverick Dirt Road Street Team, which is what Cross calls the street team). He then used a court in Tennessee to try to get Facebook to identify who was behind the group, and then demanded that the page be taken down. That effort is still ongoing, but has been temporarily postponed, while he then filed a separate lawsuit in California against Facebook and whoever is behind that group, a variety of things, including breach of contract, negligent misrepresentation, negligent interference with prospective economic relations, unfair business practices and various publicity rights violations. Oddly, as Levy points out in his post, despite listing John Does as defendants, the complaint doesn't describe anything anyone did other than Facebook. However, as part of the discovery process, Cross did (of course!) ask Facebook to identify the people behind the group criticizing him.

Facebook, quite reasonably, asked the court to dismiss the case under California's anti-SLAPP law and pointed to Section 230 for an explanation of why it's immune. The ruling, unfortunately, is very, very confused. It grants some of Facebook's request, saying that Facebook didn't breach any agreement in failing to remove the group, but refuses to dismiss the publicity rights claims, stating that publicity rights are "intellectual property" and intellectual property is not covered by Section 230. The first half of the ruling does note that Facebook is not liable for the regular content on those pages and thus it was under no obligation to take them down, but then goes off the rails on the publicity rights claim.

You might wonder where there's a publicity rights claim in any of this, but it appears that Cross is arguing that because the group (a) uses images of himself (as Mikel Knight) and (b) Facebook puts ads on those pages, that this is an abuse of his publicity rights for commercial advantage. Really.
Here, it is alleged that Facebook had knowledge since October 2014 that pages using Knight's likeness and identity were being created on its site.... Knight states that he did not consent to these pages or the advertising Facebook placed on them.... Facebook's financial performance is based on its user base; accordingly, Facebook' s alleged use of Knight's image on the unauthorized pages generates advertising revenue for the company.... Knight states that Facebook's unauthorized use of his image has resulted in substantial harm.... Accordingly, Plaintiffs have shown a probability of prevailing on their rights of publicity claims. Because the Sixth Cause of Action is a derivative claim that may arise from either or both the Fourth and Fifth Causes of Action, here to Plaintiffs have shown a probability of prevailing.
This seems wrong on a number of different accounts. First, and most importantly, how the hell is this a legitimate publicity rights claim? Publicity rights are supposed to be about stopping companies from using an image of a famous person in a manner that suggests endorsement when the person did no such thing. It's a very, very twisted (and incorrect) notion to argue that because Facebook has some ads on the same page as a group that complains about Cross/Knight that it's violating his publicity rights. As Levy notes in his post:
If this ruling is upheld, it will blow a gaping hole in the immunity provided by section 230. Plaintiffs who are unhappy about being criticized on any platform provided by an online service provider will be able to force the removal of those materials, and without even showing that there is anything false or otherwise tortious about the criticism – all they will have to argue is that they did not give permission for the use of their names or images in the criticism and that will be enough to make out a viable legal claim against the hosting company.
That's frightening. But, as Levy also notes, this seems to clearly be a misreading of the law:
...it simply cannot be the case that a violation of the right of publicity can be found whenever someone talks about a celebrity and thereby makes a profit. People Magazine and the National Enquirer, for example, and a variety of other publications make their money writing about individuals about whom the public has an insatiable appetite for information, but they do not require the celebrities’ permission to write about them. Indeed, to the extent that the right of publicity is analogous to trademark rights, it applies when a use of the celebrity’s name and likeness creates a likelihood that consumers will believe that the celebrity has endorsed the company that used the name and likeness (analogous to the “likelihood of confusion” requirement).
The judge here is just confused.

Second, there's the question of whether or not CDA 230 should or should not apply to publicity rights claims. It is true that CDA 230 explicitly carves out "intellectual property," but as Levy notes, there's some debate as to whether or not that applies just to federal IP laws or if it also covers state ones. Publicity rights are a purely state law concept. Of course, I think the argument could go even further, and it could be claimed that publicity rights shouldn't even be considered intellectual property in the first place. I already have issues with lumping copyright and patents together with trademarks as "intellectual property." But adding amorphous and ever changing publicity rights into the same bucket is problematic as well. There is no official definition of what counts as "intellectual property." This is, perhaps, more of a problem in that CDA 230 should have never created such a broad carveout (or should have at least specified "copyright" or whatever), but stretching the exemption to cover publicity rights is dangerous -- especially when courts like this one seem so confused about what's actually covered by publicity rights.

Levy also notes that there's a First Amendment issue behind all of this, in that it's pretty clear that Cross is seeking to suppress people saying things about him that he doesn't like. Levy -- who has been investigating this case to see if his organization, Public Citizen, should get involved (and his post details talking to a number of people who used to be a part of Cross's "street team") -- notes that he's intending to file an amicus brief in Facebook's inevitable appeal.

Either way, it's unfortunate that a judge would get such issues so incredibly wrong in a manner that could have a serious impact on free expression. Hopefully, the ruling is quickly reversed on appeal.





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  • identicon
    Anomalous Cowherd, 6 Jun 2016 @ 10:51am

    The first amendment right to anonymous speech and the freedom to criticize should have covered this issue from the very beginning.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2016 @ 1:55pm

      Re:

      that requires courts that recognize the constitution and that's more of a miss than a hit these days.

      The whole country is sliding into a totalitarian police state more and more.

      reply to this | link to this | view in chronology ]

    • identicon
      SquidlyMan, 6 Jun 2016 @ 2:05pm

      Re:

      The 1st Ammendement has no guarantee of "anonymity".

      "Amendment I - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

      reply to this | link to this | view in chronology ]

      • icon
        Gwiz (profile), 6 Jun 2016 @ 2:30pm

        Re: Re:

        The 1st Ammendement has no guarantee of "anonymity".

        While not actually articulated in the Bill of Rights, the right to anonymity has always been in integral part of our Free Speech rights. Our courts have consistently upheld the right throughout our history, the most recent being in 1995:
        Anonymity is a shield from the tyranny of the majority. [...] It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society.
        McIntyre v. Ohio Elections Comm'n (93-986), 514 U.S. 334 (1995)

        reply to this | link to this | view in chronology ]

        • icon
          Whatever (profile), 6 Jun 2016 @ 7:45pm

          Re: Re: Re:

          Yes, however it's not a shield that protects you from making illegal speech. Publicity rights laws carve out a space where using a likeness may infringe on that person's rights, and as such can limit other people's free speech in this regard.

          The first amendment carefully only protects legal speech. It's one of the reasons first amendment arguments are a non starter in piracy cases, as the underlying piracy negated the first amendment protections.

          Publicity rights creates a set of speech which is not "free", and in certain circumstances as a result not protected by the 1st.

          reply to this | link to this | view in chronology ]

          • icon
            Gwiz (profile), 7 Jun 2016 @ 6:22pm

            Re: Re: Re: Re:

            The first amendment carefully only protects legal speech. It's one of the reasons first amendment arguments are a non starter in piracy cases, as the underlying piracy negated the first amendment protections.

            To me that argument is ass backwards. As it is, copyright is already engaging in a first amendment balancing act that requires Fair Use to keep it from being declared unconstitutional. When you then use something that's already on such dubious footing to decide what gets first amendment protection in the first place, is like putting the carriage in front of the horse, in my opinion.


            Publicity rights creates a set of speech which is not "free", and in certain circumstances as a result not protected by the 1st.

            I don't think we should have publicity right laws.

            reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 6 Jun 2016 @ 10:55am

    Intellectual property is a poison. I used to be those who didn't agree with the overreach but was perfectly fine with giving some sort of limited time protection. Not anymore. It was so damn defaced and distorted that I decided intellectual property as a whole should be extinct. Greed and entitlement will eventually deface the new system as well.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 6 Jun 2016 @ 10:59am

    FOR every bus with a Picture on it.,.

    HOW about you r picture on a bus going thru TOWN..
    How about everry business you PASS..
    Every Pizza Spinning sign..
    JUST CAUSE your picture is on the bus, dont mean the Passengers ON THE BUS have to pay for the Adverts you are passing by..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 11:00am

    I thought copyright law allowed for use of intellectual property to criticize and inform the public

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jun 2016 @ 11:41am

      Re:

      Sorry, "publicity rights" don't invoke copyright. Also, many federal laws that define "intellectual property" specifically exclude publicity rights.

      reply to this | link to this | view in chronology ]

  • icon
    Tom Mink (profile), 6 Jun 2016 @ 11:03am

    Wow

    If there's any way the ruling stands (or even if publicity rights end up being exempted from the safe harbor) there goes a big chunk of Facebook's business model. Copyright takedown notices are ever so slightly easier to adjudicate since there's at least some guidelines about what a copyright is and who owns it. Publicity rights can be stretched to include anything that has a picture, or name of ANYONE.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 11:17am

    This nonsense will continue...

    ...until massive cooperation on the internet will cause everybody to simultaneously 'disappear' the complaining party, a web extinction event, if you will. Then, when the disappeared parties start to complain (much like the European news sites that were banished by Google) there may be a chance for common sense to prevail.

    Imagine, if every electronic figment of Justin Beiber could disappear overnight after one of his whines. Well, I can dream, anyway ...

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 6 Jun 2016 @ 11:24am

    Did you get permission from judge Donald Ayoob to use his name in this post?

    Based on his own ruling, he might be able to force you take this down...

    reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 6 Jun 2016 @ 11:27am

    So, when he Streisands this all the way to the evening news, he's going to sue them if they show a pic of him or footage of this "street team" or refer to any of them by name? And apparently it will float, with this judge.

    No one is allowed to say anything about anybody. Right to be Forgotten, here we come. Maybe we can also move into the sphere of law the Entitlement to be Noticed, bcs how totes American that would be too.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Jun 2016 @ 2:01pm

    Goodbye california 230...

    It's a good thing that criticism of people and/or companies never uses the name and/or picture of the one being criticized, otherwise a ruling like this would not only completely gut any anti-SLAPP law they have on the books it would make posting anything criticizing someone very legally risky, chilling vast amounts of otherwise protected speech.

    But like I said, thankfully none of that will happen given criticism is always vague enough that there's no notable link between the criticism itself and the individual/company being criticized, making this ruling perfectly sensible and harmless outside of a very narrow scope.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2016 @ 2:17pm

    I hadn't even gotten halfway through the article when I started thinking, "How is this different than a tabloid newspaper?" How is it that the judge didn't have the same thought?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jun 2016 @ 2:20am

    Mike Masnick just hates it when intellectual property law is enforced.

    reply to this | link to this | view in chronology ]


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