On Monday, the Supreme Court announced the results of its “long conference,” the beginning-of-term vote-a-rama where the justices sift through the hundreds of petitions that have piled up through the summer. The high court rejected quite a few of the cases I had been following, including Scientology’s bid to force a Danny Masterson accuser into arbitration, Charles Harder’s latest attempt to make it easier for libel plaintiffs, and David Lowery’s efforts to get the justices to examine “cy pres,” that is, class action settlement money that goes to third-party charities instead of individuals whose injuries are being addressed.
Lowery, oddly enough, was the founder of the bands Camper Van Beethoven and Cracker, the latter of which was briefly famous for the early-90s song “Low,” which featured Sandra Bernhard in its music video. In his later life, he’s become an advocate of sorts, filing suits against Spotify and Napster. More recently, he objected to Google settling a privacy class action by giving settlement money to those who took the tech giant’s side against him on copyright controversies. He, as a class member, feels he shouldn’t have to subsidize this. While Lowery fell short, the Supreme Court did take up another case that potentially puts a thumb in Google’s eye.
In Reynaldo Gonzalez v. Google, the Supreme Court will finally get into the weeds of the Communications Decency Act. Section 230, of course, is the controversial provision that allows for interactive service providers to moderate content without being held liable for what its users post—in layman’s terms, it’s the law that legally immunizes the tech giants from the worst content on their platforms. Section 230 was written before any of us, besides maybe a few on Sand Hill Road, could quite grasp the transformative nature of the Internet. And while many politicians hate the law, it’s incredibly hard to agree on a replacement. Critics on the right believe it encourages censorship. Critics on the left believe it disincentives stronger moderation of disinformation. Untold lobbying dollars feed the divide.
As for this specific case, the appellants are family members of a 23-year-old who was murdered by ISIS terrorsists while studying in Paris. They wish to hold Google responsible for allegedly offering assistance to terrorists through its YouTube platform. The family is particularly enraged by how the company “recommended ISIS videos to users,” and they’re now before the justices with the question of whether Section 230 immunizes algorithm-generated recommendations. In short, the justices will examine how content gets amplified and boosted.
Should Google lose, it’ll poke a huge hole in Section 230 and probably lead to a wave of tort litigation around the country. Facebook and TikTok, for example, could expect to see lawsuits for leading users into various forms of addiction.
But one thing to keep in mind is that the demise of Section 230 wouldn’t necessarily mean that digital platforms would lose lawsuits. There will still be a First Amendment defense, and those wishing to see how that would play out might consider a decision in favor of Netflix earlier this year. The streamer, which has never asserted Section 230, was sued by the family of a teenager whose suicide was allegedly triggered by 13 Reasons Why. After the family attacked Netflix’s recommendation algorithm, the streamer asserted there’s not much difference between an algorithm and a news editor deciding which content to feature. Ultimately, Netflix won.
More Google in the Court
With a new Supreme Court term comes another opportunity for the conservative justices to further flex their ascendant power. Last term, this was manifested in decisions surrounding gun rights, E.P.A. overreach, abortion, and religious liberty. This coming term, targets of inquiry appear likely to be affirmative action, voting rights, and, of course, religious liberty again. Google could also be in for more action at the Supreme Court as the justices also seem likely to review attempts by Florida and Texas to regulate social media censorship. Additionally, I’m now tracking a petition aimed at Google’s activities that I think could also seriously impact the entertainment and tech spheres.
A few years ago, Genius Media Group was absolutely convinced that Google was lifting its transcriptions of song lyrics. So the company laid a trap. The site swapped the original apostrophes for a specific sequence of straight and curly ones. In Morse code, that sequence translated as “red handed.” Then all Genius had to do was check to see if the same pattern showed up on Google. Of course, it did. Google had been caught red handed.
So Genius sued, wherein it ran into a problem. The company’s employees and users may have spilled sweat transcribing Bob Dylan and Nas, but Genius didn’t actually own the copyright to the lyrics. Those belonged to publishers and songwriters. Genius attempted to hold Google responsible for breaching the terms of its service by vacuuming up its content, but Google successfully argued that the claim was preempted by federal copyright law. That issue is now knocking at the Supreme Court’s door.
Genius is represented by Orrick superstar Josh Rosenkranz, the same attorney who two years ago represented Oracle in a heavyweight battle with Google over the copyrightability and fair use of computer code. This time, Rosenkranz is sticking up for the importance of enforcing a website’s visitor terms. Genius’s petition (read here) argues that it’s wrong to measure whether a contract claim is “qualitatively different from a copyright claim,” as the Second Circuit insists but many appellate circuits in the nation don’t. The petition adds that having copyright law “wipe out sacrosanct contract remedies” leads to “absurd” outcomes—among them, hobbling digital services like Yelp and Wikipedia that depend on user-generated content, upending how art galleries treat their visitors, and even undermining nondisclosure agreements.
Genius’s cert petition has already attracted a pair of amicus briefs, including an entertaining one from the Open Markets Institute that opens with a Daniel Day-Lewis quote from There Will Be Blood and goes even further with the parade of horribles. “The Second Circuit’s approach, if not corrected by this Court, calls into question the viability of massive segments of the Internet and the U.S. economy in general,” warns the think tank.
It might be true that allowing copyright law to outweigh a website’s terms of service means we could witness wide-scale scraping of licensed content (user product reviews, sports statistics, judicial opinions, weather reports…). But it’s also easy to see the downsides of letting digital services and property owners contract around the limitations on copyright. For example, could Twitter get away with prohibiting anyone who uses the site from then quoting tweets off the platform—not even in news articles? When Google responds next month, it will likely expand on the ramifications for allowing contract authority to trespass on a copyright owner’s domain, which given that the company owns YouTube and vigorously enforces its own terms, is somewhat ironic.
And if this isn’t interesting enough, well, that’s fine. There might be a market for such petitions, too. Indeed, the liberal justices might start thinking about whether this could be the time to start solving every last intellectual property puzzle bedeviling lower courts.