from the well,-you-can,-but-you-shouldn't-win dept
The Complexions who lost its fan page has gone to court to get a declaratory judgment that it didn't infringe against the other Complexions... and is seeking to have the court order Facebook to put the page back up. As Goldman points out, even if it makes sense for Facebook to put the page back up, the court almost certainly cannot legally mandate that, since Facebook is protected in taking down whatever content it wishes to take down:
The issue is so interesting because the DJ plaintiff's desired relief should be categorically unavailable. A court can't order a web service to restore an user's account/content for at least two independent reasons. First, such an order clearly violates the First Amendment-- the order would impermissibly circumscribe the service's freedom of speech and the press. Second, even if you don't want to get into the constitutional debate, IMO Congress resolved this issue in 47 USC 230(c)(2), which immunizes websites' "filtering" decisions. If Facebook takes down a fan page because it thinks the page is trademark infringing, 230(c)(2) says Facebook still has the full editorial discretion not to publish the page even if it later learns that the page wasn't trademark infringing at all.Separately, Goldman points out that the suing Complexions is also claiming "false advertising," in noting that the Complexions who issued the takedown also sent friend/fan requests to its fans. He predicts that we'll start seeing more lawsuits over attempts to "poach" Facebook fans.
A court *can* order the IP owner to stop sending takedown notices. See, e.g., Biosafe-Hawks, Design Furnishings, and Amaretto. My hope is that a web service would listen carefully to such orders in deciding if/how to remediate its prior responses to the takedown notices. My hope is that web services would also build in enough due process to their private adjudicatory processes so its users can fairly combat false takedown notices without needing judicial intervention at all. However, it remains fair game for the web service to make "bad" choices on both fronts, though we as consumers should draw our own conclusions about those who do.