The authors have declared that no competing interests exist.
In light of the 2020 Presidential election, this essay asks whether social media laws that affect the outcome of intellectual property be dramatically changed. The article outlines the relationship between Section 230 of the Communications Decency Act and the various intellectual property laws, including the four privacy torts, copyright laws, trade secret laws, patent laws, trademark laws, and right of publicity laws. Intellectual property is addressed because intellectual property is typically the content of social media sites. The Communications Decency is analyzed in detail, pointing out that members of both sides of the political aisle seem to believe that the Act gives social media companies tremendous political power to make or break existing members of Congress and future candidates. The paper concludes that the answer to the above question is yes.
During the four years that Donald Trump was President of the United States, he used social media extensively to communicate with the American people.
Could his opposition respond in kind, or at least appropriately react?
As the four years of Donald Trump’s presidency marched on to its eventual conclusion on January 20, 2021, the American people became increasingly aware of the political positions of the individuals and organizations in the mainstream media and Big Tech.
In particular, who was to blame if fraud was involved in the election? Were the social media companies complicit? Since the 2020 election, the social media companies have de- platformed many individuals and organizations that have questioned the election’s legitimacy, fueling the belief that these companies had immense political power.
Something had to change, and it had to be done soon. It is for this purpose that this paper is dedicated. This essay asks whether social media laws that affect the outcome of intellectual property laws should be dramatically changed. The reason that intellectual property is involved is that intellectual property and information make up social media content..
Unreasonable intrusion upon another’s seclusion;
Public disclosure of private facts;
False light invasion of privacy; and
Appropriation of another’s name or likeness.
All four torts are relevant in the context of social media. An individual may post content without consent and for-profit about another that intrudes on an individual’s seclusion by employing social media. The same can happen regarding the public disclosure of private facts, a false light invasion of privacy, or the appropriation of someone’s name or likeness. Although state laws allow an individual to sue when such information is used commercially, private individuals and celebrities can sue in state courts for public disclosure of private facts. In other words, much like a violation of a person’s right of publicity, the unauthorized use of information about a person is an encroachment of an individual’s property rights. The four privacy torts imply that individuals have property rights to their personal information, and a sovereign state’s responsibility is to protect individual property rights.
When considering the four privacy torts in a social media context, the question is whether there is a federal law that immunizes a tortfeasor from being sued by a plaintiff. The four privacy torts are typically embedded in state law. The Supremacy Clause in the Constitution prohibits states from interfering with the federal government’s exercise of its constitutional powers. The Supremacy Clause also prevents the states from assuming any functions that are exclusively entrusted to the federal government.
Copyright is a form of intellectual property that is protected by United States law.
The main goal of copyright law is to protect the creator’s creativity, time, and work effort.
Reproduce the work;
Prepare derivative works;
Distribute copies of the work by sale, lease, or other transfer of ownership;
Perform the work publicly; and
Display the work publicly.
The use of copyrighted material is not an exclusive right.
An author of work can create the work in their employment. This is known as “work for hire.”
On October 2, 1998, President Clinton signed The Digital Millennium Copyright Act (DMCA) into law.
Title I – Implements the two treaties;
Title II – Creates limitations on the liabilities of online service providers;
Title III – Has an exemption for making a copy of a computer program to repair;
Title IV - contains six miscellaneous provisions that relate to the functions of the Copyright Office; and
Title V – Creates a new form of protection for the hulls of a ship.
Section 512(c), or the safe harbor provision in Title II of the DMCA, generates an exemption for Internet service providers (ISPs) against infringement liability, assuming that the following criteria are met:
An ISP must not receive financial benefit from the infringing activity;
An ISP should not possess actual knowledge or be aware of the circumstances regarding the hosting of the infringing material;
When provided expressed written notice by a copyright holder, an ISP must quickly take down the infringing content;
If an ISP subjectively knows of an infringement and a reasonably prudent person would conclude that the activity is infringing, an ISP must expeditiously remove the alleged violation.
The alleged infringer may contest the removal of their content. Again, the ISP must act promptly in reviewing the counter-allegations. If the ISP obeys these rules, it is safe from legal liability.
The first prong of Section 512(c) requires that the ISP not receive any financial benefit from infringement by third-party content. If the ISP analyzes the infringing content and proceeds to sell the analysis results to a customer, the first prong of Section 512(c) would not be satisfied. Suppose the effect of the analysis is a digital model, physical object, or source code that produces a pictorial, graphic, or sculptural work. The work is copyrightable by the ISP,
According to the second prong of Section 512(c), an ISP must not have actual knowledge or be aware of the facts and circumstances surrounding its hosting of the infringing content. However, Section 512(c) does not apply if the ISP infringes on the copyright owner’s copyrights. Section 512(c) applies if the ISP does not receive financial benefit from the infringing work and is unaware of the violation. When an ISP violates these first two prongs, the ISP must cease production or face a copyright infringement suit. If the ISP is the infringer, there is no reason to engage in a negotiation with a third-party infringer. There would be two parties, the ISP infringer and the copyright holder, rather than three parties, the third-party infringer, the ISP, and the copyright holder.
Under the third prong of Section 512(c), the ISP must expeditiously remove the offending content when given express written notice of copyright infringement by the copyright holder of third-party content. If the notice is oral versus written and the ISP does not take down the infringing content, the question is whether the ISP is immune from legal action. The ISP should insist in its policy statement that the notice be expressly written down and sent to the ISP as soon as the copyright holder discovers the infringement. Another issue arises if the ISP is not expeditious in removing the infringing content. What constitutes a reasonable time between the time notice is given to the ISP, and the infringing content is removed? It is reasonable for the ISP to give counsel time to review the facts of the case, verify that notice has occurred, and determine the current state of the law. This can happen when the alleged infringement is covered by fair use, where the employment of fair use content is not copyright infringement. In some situations, a 24-hour period may be reasonable. However, a more extended period may be acceptable if the ISP is small and does not possess the resources to comply quickly with the third prong of Section 512(c). Hopefully, a reasonable court would consider these facts when making its determination.
Finally, in the fourth prong of Section 512(c), if the ISP has subjective knowledge of the infringing content and a reasonably prudent person would consider the content infringing, then an ISP must expeditiously take down the offending content. This means that the ISP must subjectively believe that the content is infringing, regardless of whether the content is objectively infringing. If a reasonably prudent person concludes that the content is infringing, then the ISP is obliged to remove the content even if the content is not objectively infringing. This situation puts an ISP in a precarious position, for if the content is objectively not infringing, the ISP may be over-reacting, removing content when it is not necessary. One could argue that the fourth prong allows the ISP to err on caution by taking down the content. Although possibly a reasonable thing to do, the fact that Section 512(c) permits the taking down of non-infringing content would likely annoy the content owner, sometimes even inviting a lawsuit. Potential litigation is the price that society pays for protecting copyrights when infringement is an unknown commodity.
The first subsection addresses trade secrets in general in the following two subsections. The second subsection talks about trade secrets and social media.
The Uniform Trade Secrets Act (UTSA) is legislation created by the Uniform Law Commission (ULC), a non-profit organization.
Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
Before the UTSA was created, the unauthorized use or disclosure of a trade secret was traditionally a common-law tort.
The degree to which the information is known parties outside a claimant’s business;
The degree to which parties inside the business know the information;
The steps that were taken by a claimant to protect the secrecy of the information;
The value of the information inside and outside the company;
The effort or financial cost spent by a business in developing the information; and
The ease or difficulty of acquiring or reproducing the information.
The first thing to notice about the definition is that trade secrets are broadly defined.
New technology;
A changing work environment;
The increasing value of trade secret information;
The Uniform Trade Secrets Act;
Flexible (and expanding) scope of trade secrets;
The rise of international threats; and
Interaction with patent law.
First, new technology, such as computers, ensures that information can be easily misappropriated.
According to Halligan and Weyland, core competencies are entrenched in trade secrets.
Third, from a Rawlsian perspective, where the purpose of a society is to help the least advantaged, trade secrets can promote the benefit of the least advantaged by providing these individuals income through the commercial sale or licensing of the results of the trade secret information.
On May 11, 2016, President Obama signed the Defend Trade Secrets Act (DTSA) into law.
If social media is involved in infringing on a trade secret, it will likely be a misappropriation of the secret. The four possible causes of action are unauthorized acquisition, unauthorized disclosure, unauthorized use, or knowledge acquired by mistake or accident.
In the first two instances, under the DTSA, an ISP that stored the content of a trade secret on their website would likely be held harmless. The reason is that the ISP is passively storing the trade secret on their site. In the third possibility, they would be liable if an ISP uses a trade secret stored on their site under the DTSA. However, if Section 230 of the CDA were applied, the ISP would likely be immune from prosecution, where a defendant would argue that the DCA trumps the DTSA. If the fourth misappropriation possibility occurred, an ISP could be liable under the DTSA, but again immunity would exist provided that the ISP promptly removed the infringing content from their site. One issue that should be remembered is that the DTSA extended the EEA. An unauthorized individual that acquired, disclosed, used, or otherwise obtained a trade secret by mistake or accident could also be charged under the EEA. If the defendant is an ISP, the question arises whether the CDA trumps the DTSA or the EEA, thereby holding the ISP harmless. Based on the analysis of the CDA below, the answer appears to be yes.
The two ways an individual can obtain a trade secret and not be charged for misappropriation occur when the person reverse engineers the trade secret, independently derives the trade secret, or obtains the trade secret by any lawful means.
Reverse engineering is a chemical engineering, electrical engineering, mechanical engineering, software engineering, or systems biology methodology.
Reproducing legacy products that are no longer manufactured or where there are no blueprints to manufacture them;
Examining obsolete products that are no longer supported or manufactured;
Analyzing the design of a product to make improvements;
Performing a competitive analysis of a competitor’s product, looking for potential patent infringement;
Servicing or repairing a product when its documentation is not available;
Creating an interoperable product;
Preventing crime by reverse engineering malware; and
Analyzing why a product failed.
Reverse engineering can also be employed for illegal or unethical purposes, such as copying a copyrighted or patented product without permission or unlocking a smartphone from any cell phone provider.
Suppose an ISP lawfully reverse engineers a trade secret, independently derives a trade secret, or obtains a trade secret by any lawful means. In that case, the platform is not liable under the DTSA. An ISP is liable under the DTSA if the ISP unlawfully reverse-engineered the trade secret. The CDA is likely immaterial in these three instances because either the ISP lawfully attained the trade secret or acted unlawfully in acquiring the trade secret.
This paper’s Patent Law and Social Media section is divided into two subsections. The first subsection talks about patents in general. The second subsection discusses patent law from a social media perspective.
According to the United States Patent and Trademark Office, patents are “technical inventions, such as chemical compositions like pharmaceutical drugs, mechanical processes like complex machinery, or machine designs that are new, unique, and usable in some type of industry.”
An invention is novel if it is generally new and unknown to the public and gives its owner a competitive advantage.
A statutory bar to a patent exists when either an inventor or a third party engages in activities (e.g., public use, prior printed publication, or prior patent) that disclose the invention under consideration.
Because an inventor may lose their ability to patent an invention if they publicly disclose the invention before filing a patent application, utmost secrecy is paramount. This means that the details of an invention will most likely never appear on social media. If an inventor decides to reveal information about a patent to a third party, the third-party should sign a non-disclosure agreement. Inventors should be rather careful to whom they reveal information about an invention. It should be remembered that all patents begin as trade secrets, where the conditions for ensuring that trade secrets are legally protected until the patent is granted.
Social media can be employed when an individual infringes a patent. According to Section 271(a) of the United States patent law, an individual who “without authority makes, uses, offers to sell, or sells any patented invention, within the united states, or imports into the united states any patented invention during the term of the patent therefore, infringes the patent.”
According to the United States Patent and Trademark Office, a trademark is a “word, phrase, design, or a combination that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods or services.”
Trademarks are important because they distinguish one merchant from another, helping customers decide where to take their business.
The definition of a trademark emphasizes that a mark must be distinctive because it must identify and distinguish goods so that a customer knows the source of the goods.
1) It is inherently distinctive of source; or
2) It has developed an acquired distinctiveness of source.
A mark that intrinsically lacks distinctiveness can qualify as distinctive if they have acquired distinctiveness over time, otherwise known as a secondary meaning. A descriptive term may nonetheless become a trademark if the description becomes descriptive in the minds of consumers. For example, “American Airlines” is a descriptive term, yet today it is uniquely associated with the company with the same name.
The Lanham Act identifies the following five categories of terms when determining whether a term deserves trademark protection. The classes are (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful.
Even if a mark is distinctive, it can be denied protection if it is covered by one of the statutory bars specified in the Lanham Act. According to the Lanham Act Section 2, the registration of a mark will be barred if it consists of an immoral, deceptive, or scandalous matter.
A trademark must be used in commerce, where the mark is employed in the ordinary course of trade and not made merely to reserve the right of a mark.
The Internet is no longer a technological mystery but an integral part of everyday life. The Internet is a proven useful tool in all businesses. These days with little effort, anyone can register a domain name, allowing access to customers worldwide. Trademark law protects some domains and permits mark owners to take legal action against domains that infringe on legitimate trademark rights, just as if an illicit domain was a traditional mark that infringed on a legitimate mark. Trademark disputes over domain names can be due to good-faith disagreements among competitors over the right to use specific words, symbols, or other devices present in traditional trademark disputes. Trademark disputes can also arise over the employment of metatags or keywords to attract customers via search engines or triggers for pop-up advertising. The sale of keywords and some listings have generated potential trademark rights issues.
A domain name is a significant component of a Uniform Resource Locator (URL) used to locate a website or a web page. The Lanham Act defines a domain name as “any alphanumeric designation registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet.”
An existing trademark and primary brand significance;
An existing trademark with a dictionary meaning;
A trademark with other words (e.g., “ford-parts”)
An ordinary generic word (e.g., “computers.com”);
A string of characters that are an acronym (e.g., “ibm.com”); or
A random string of alphanumeric characters (e.g., “abc123.com”).
There are challenges associated with domain names. First, domain names can exist without reference to a trademark, good, or service. Second, organizations that register domain names do so on a first-come, first-served basis without considering trademark ownership. The issue is that a given domain name may not be associated with a trademark or marginally associated with a mark due to businesses focusing on trademark rights without thinking about domain name issues.
An organization should probably register its trademarks and domain names with the United States Patent and Trademark Office and register with foreign jurisdictions. If an entity performs this simple task, it is less likely that a search engine will sell corporate brands as keywords to competitors or that competitors will be able to company brands as metatags or descriptive terms on their website.
Cybersquatting is a deliberate, bad faith, and abusive registration of Internet domain names with the intent to gain financial remuneration from an entity.
Trademark owners can halt cyber squatters through arbitration under the Uniform Domain Name Resolution Policy (UDRP) by filing suit in the United States under the Anti- Cybersquatting Consumer Protection Act (ACPA).
1) The plaintiff owns the mark, the mark being either a registered mark or a common-law mark;
2) The defendant’s domain name is identical to, or confusingly similar to, the plaintiff’s domain name; and
3) The defendant used, registered, or trafficked in the domain name with a bad faith intent to profit from the plaintiff’s trademark.
There are nine factors that the Lanham Act provided to help courts decide when a defendant is acting in bad faith, including:
“(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
(VII) the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;
(VIII) the person’s registration or acquisition of multiple domain names that the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of subsection(c)(1) of section 43.”
Although none of the nine criteria are determinative by themselves, when based on the circumstances of the case, the nine criteria can be used to form a viable argument for bad faith.
There are various defenses to a domain name suit. A defendant could argue fair use to overcome a cybersquatting claim. A defendant could attempt to show that the mark in question is generic or descriptive without secondary meaning. In both instances, the mark would not be protected by law, so no cybersquatting would have occurred. The offending domain could be a parody or a “gripe site” (i.e., a domain name registered by a disgruntled former employee with no commercial intent) on the trademark owner’s domain name, preventing a domain name suit in the future. Anyone of these defenses or others could effectively defend against a cybersquatting suit.
Once a domain owner recognizes the existence of a potential cyber squatter, the owner can do nothing, monitor the use of the offending name to see if a problem arises, send a cease and desist letter, institute a UDRP proceeding, or institute a civil suit in federal court under ACPA.
The CDA was the first attempt by Congress to regulate pornographic material on the Internet. CDA is the short name for Title V of the Telecommunications Act (TA) of 1996.
Section 230 of Title 47 of the United States Code was enacted as part of the CDA. It provides immunity from third-party content for organizations that offer website platforms. In particular, Section 230(c)(1) gives immunity from liability for ISPs and users of interactive computer services who publish information from third parties.
Although Section 230 has frequently been referred to as the law that permitted the Internet to develop,
When analyzing whether Section 230 immunity is available, the courts apply the following three-prong test:
1) The defendant must provide or use an interactive computer service;
2) The cause of action must consider the defendant as a publisher or speaker of the harmful information; and
3) The defendant must not be the information content provider of the harmful information.
The immunity given by Section 230 is limited. The exceptions to Section 230 include federal criminal liability,
The two early challenges to Section 230 came from
1) Incentivize ISPs to address illicit content, and remove Section 230 immunity when the illicit content deals with child abuse, terrorism, and cyberstalking, particularly when courts have notified a platform of the illicit material;
2) Remove protections from civil lawsuits when the plaintiff is the federal government;
3) Disallow Section 230 protection regarding antitrust actions; and
4) Promote discourse and transparency by defining existing terms such as “otherwise objectionable” and “good faith.”
In 2020, various bills were introduced to Congress that intended to reduce the liability protections in Section 230 afforded Internet platforms.
The right of publicity is an intellectual property right recognized in just over 50 percent of the states.
Under most state laws, to prove a violation of the right of privacy, a plaintiff must prove that:
1) The use of an individual’s identity (whether living or dead) identifies the individual;
2) The use of a person’s identity is employed in commerce, harming the person’s right of publicity interest; and
3) The individual has the standing to bring the right of publicity suit, either on their own or as an exclusive licensee, heir, etc.
It is common for a right of publicity claim to arise in conjunction with a violation of the Lanham Act because the Act covers trademark law, unfair competition, and false advertising.
There are various defenses to a right of publicity action, including copyright preemption, where a state right of publicity law is preempted by federal copyright law where the individual’s identity is fixed within a tangible medium such as a photograph or voice recording.
A presence on the Web has dramatically increased individuals’ ability to exploit others’ identity rights for commercial gain, particularly when people are putting their personal information or photographs of themselves and others on social media websites such as Facebook. Because sites have terms of service agreements that prevent individuals from violating the intellectual property rights of others, YouTube, Twitter, and Facebook have policies that prevent infringement, particularly copyright piracy, which at times overlaps with the right of publicity.
With the presence of multiplayer online games, there is a question of the scope of the right of publicity laws.
The more general question is whether the CDA can trump any laws. In other words, is there a current law on the books that supersedes the CDA? If so, what is the law? If not, then does the CDA make ISPs omnipotent because there are no laws that can eclipse the CDA? From a practical perspective, many people believe that ISPs and their platforms have the power to dictate the behavior of the American people, mainly if one is a politically conservative American, even when violent speech and violence in other countries have all been ignored.
One does not have to be a political conservative to appreciate that when another possesses tremendous political power. This can be readily seen by the number of bills that have been presented to the House and Senate in an attempt to curtail the power granted to ISPs by Section 230. Members of both sides of the aisle have proposed a seemingly kaleidoscopic of bills whose sole purpose is to rein in ISPs by limiting their immunity granted by Section 230. Based on the sampling of cases outlined in this article, it is apparent the federal and state judiciary favor the continuance of Section 230.
The author has read and agreed to the published version of the manuscript.
This research received no external funding.
Not applicable.
Not applicable.
I thank Jeffery K. Hardin for our many discussions on the technical aspects of obtaining a patent. His insights, lively humor, perspective on the state of the world are invaluable to me.
The following abbreviations are used in this manuscript:
ACLU: American Civil Liberties Union
ACPA: Anti-Cybersquatting Consumer Protection Act
BAD ADS: Behavioral Advertising Decisions Are Downgrading Services Act
CDA: Communications Decency Act
DHHS: Department of Health and Human Services
DMCA: Digital Millennium Copyright Act
DOJ: United States Department of Justice
DTSA: Defend Trade Secrets Act
EARN-IT: Eliminating Abuse and Rampant Neglect of Interactive Technologies
EEA: Economic Espionage Act
EFF: Electronic Frontier Foundation
EO 13925: Executive Order on Preventing Online Censorship
EONA: Existence, Ownership, Notice, and Access
FCC: Federal Communications Commission
FOSTA-SESTA: Stop Enabling Sex Traffickers Act
FTC: Federal Trade Commission
IP: Intellectual Property
ISP: Internet Service Provider
NCMEC: National Center for Missing and Exploited Children
NCSE: National Center on Sexual Exploitation
NTIA: National Telecommunications and Information Administration
PACT: Platform Accountability and Consumer Transparency Act
SAFE TECH: Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act
SLAPP: Strategic Lawsuits Against Public Participation
TA: Telecommunications Act
UDRP: Uniform Domain Name Resolution Policy
ULC: Uniform Law Commission
URL: Uniform Resource Locator
USATA: United States Anti-Terrorism Act
UTSA: Uniform Trade Secrets Act
WIPO: World Intellectual Property Organization