Justia Internet Law Opinion Summaries
Articles Posted in US Court of Appeals for the Ninth Circuit
ACA Connects v. Bonta
In 2018, the FCC stopped treating broadband internet services as “telecommunications services” subject to relatively comprehensive, common-carrier regulation under Title II of the Communications Act, and classified them under Title I as lightly regulated “information services,” with the result of terminating federal net neutrality rules. Trade associations sought an injunction to prevent the California Attorney General from enforcing SB-822, which essentially codified the rescinded federal net neutrality rules, limited to broadband internet services provided to California customers.The district court concluded there was no federal preemption. The Ninth Circuit affirmed the denial of a preliminary injunction against enforcement of the California law. The court cited a 2019 D.C. Circuit decision, upholding the FCC’s 2018 reclassification but striking an order preempting state net neutrality rules. The court rejected arguments that SB-822 nevertheless was preempted because it conflicted with the policy underlying the reclassification and with the Communications Act or because federal law occupies the field of interstate services. Only the invocation of federal regulatory authority can preempt state regulatory authority; by classifying broadband internet services as information services, the FCC no longer had the authority to regulate in the same manner that it did when these services were classified as telecommunications services. The FCC, therefore, could not preempt state action, like SB-822, that protects net neutrality. SB-822 did not conflict with the Communications Act, which only limits the FCC’s regulatory authority. The field preemption argument was foreclosed by case law. View "ACA Connects v. Bonta" on Justia Law
Joffe v. Google, Inc.
Plaintiffs alleged, in this consolidated class action, that Google illegally collected their Wi-Fi data through its Street View program. After the parties reached a settlement agreement that provided for injunctive relief, cy pres payments to nine Internet privacy advocacy groups, fees for the attorneys, and service awards to class representatives—but no payments to absent class members, David Lowery, one of two objectors to the settlement proposal, appealed the district court's approval of the settlement and grant of attorneys' fees.The Ninth Circuit affirmed, concluding that the district court did not abuse its discretion in approving the settlement, certifying the class, or in its award of attorneys' fees, and it did not commit legal error by rejecting Lowery's First Amendment argument. The panel rejected the suggestion that a district court may not approve a class-action settlement that provides monetary relief only in the form of cy pres payments to third parties; Lowery has not shown that the district court abused its discretion in approving the use of cy pres payments in the settlement; the infeasibility of distributing settlement funds directly to class members does not preclude class certification; and viewing the modest injunctive relief together with the indirect benefits the class members enjoy through the cy pres provision, the panel affirmed the district court’s finding that the settlement was fair, reasonable, and adequate.The panel also concluded that the settlement agreement does not compel class members to subsidize third-party speech because any class member who does not wish to subsidize speech by a third party that he or she does not wish to support, can simply opt out of the class. The panel has never held that merely having previously received cy pres funds from a defendant, let alone other defendants in unrelated cases, disqualifies a proposed recipient for all future cases. Furthermore, the panel affirmed cy pres provisions involving much closer relationships between recipients and parties than anything Lowery alleges here. The court further concluded that the district court properly considered all relevant circumstances, including the value to the class members, and concluded that a 25% benchmark was appropriate. Finally, the panel concluded that class counsel and class representatives did not breach their fiduciary duties by entering the settlement. View "Joffe v. Google, Inc." on Justia Law
WhatsApp Inc.v. NSO Group Technologies Ltd.
WhatsApp sued under the Computer Fraud and Abuse Act and California state law, alleging that NSO, a privately owned and operated Israeli corporation, sent malware through WhatsApp’s server system to approximately 1,400 mobile devices. NSO argued that foreign sovereign immunity protected it from suit and, therefore, the court lacked subject matter jurisdiction because NSO was acting as an agent of a foreign state, entitling it to “conduct-based immunity”—a common-law doctrine that protects foreign officials acting in their official capacity.The district court and Ninth Circuit rejected that argument. The Foreign Sovereign Immunity Act, 28 U.S.C. 1602, occupies the field of foreign sovereign immunity and categorically forecloses extending immunity to any entity that falls outside the Act’s broad definition of “foreign state.” There has been no indication that the Supreme Court intended to extend foreign official immunity to entities. Moreover, the FSIA’s text, purpose, and history demonstrate that Congress displaced common-law sovereign immunity as it relates to entities. View "WhatsApp Inc.v. NSO Group Technologies Ltd." on Justia Law
Bell v. Wilmott Storage Services, LLC
The Ninth Circuit wrote to clarify the role that de minimis copying plays in statutory copyright. The de minimis concept is properly used to analyze whether so little of a copyrighted work has been copied that the allegedly infringing work is not substantially similar to the copyrighted work and is thus non-infringing. However, once infringement is established, that is, ownership and violation of one of the exclusive rights in copyright under 17 U.S.C. 106, de minimis use of the infringing work is not a defense to an infringement action.The panel reversed the district court's grant of summary judgment for defendants based on a putative de minimis use defense in a copyright case involving plaintiff's photograph of the Indianapolis skyline. The panel applied the Perfect 10 server test, concluding that Wilmott's server was continuously transmitting the image to those who used the specific pinpoint address or were conducting reverse image searches using the same or similar photo. Therefore, Wilmott transmitted and displayed the photo without plaintiff's permission. Furthermore, Wilmott's display was public by virtue of the way it operated its servers and its website. The panel also concluded that the "degree of copying" was total because the infringing work was an identical copy of the copyrighted Indianapolis photo. Accordingly, there is no place for an inquiry as to whether there was de minimis copying. On remand, the district court must consider Wilmott's remaining defenses, and it can address the questions surrounding plaintiff's ownership of the Indianapolis photo, in addition to the other defenses raised by Wilmott. View "Bell v. Wilmott Storage Services, LLC" on Justia Law
AdTrader, Inc. v. Google LLC
The Ninth Circuit dismissed, based on lack of appellate jurisdiction, AdTrader's appeal from the district court's attorneys' fee award in a class action brought by AdTrader on behalf of itself and advertisers who used Google advertising services but did not receive refunds for invalid traffic.The panel concluded that this is neither a traditional common fund case nor one that meets the requirements of the collateral order doctrine. In this case, the litigants and the district court may have agreed that attorneys' fees should be determined in light of common fund principles, but they also agreed that "any award of attorneys' fees here would not come from a sum that Google has been ordered to pay the class." The panel explained that this alone shows that this case neither fits the situation under which the "common fund" doctrine developed nor meets the requirement of unreviewability that is essential to the limited collateral order exception to finality. The panel also considered plaintiffs' other arguments for an immediate appeal and found them to be without merit. View "AdTrader, Inc. v. Google LLC" on Justia Law
Social Technologies LLC v. Apple Inc.
The Ninth Circuit affirmed the district court's grant of summary judgment in favor of Apple in a trademark infringement action brought by Social Tech over the use of the MEMOJI mark. The panel held that mere adoption of a mark without bona fide use in commerce, in an attempt to reserve rights for the future, is insufficient to establish rights in the mark under the Lanham Act. The panel explained that Social Tech failed to put forward evidence that the release of its Memoji application to the public was for genuine commercial purposes warranting trademark protection and thus it failed to establish a triable issue regarding whether it engaged in a bona fide use of the mark in commerce within the meaning of the Lanham Act.The panel considered the totality of the circumstances and concluded that, while at the time of its original intent-to-use filing, Social Tech may have had some commercial intent to develop the Memoji application, at the time it filed its Statement of Use, its use of the MEMOJI mark was made merely to reserve a right in the mark. Because Social Tech did not engage in bona fide use of the MEMOJI mark in commerce, its registration is invalid, and Apple is entitled to cancellation of Trademark Registration No. 5,566,242. View "Social Technologies LLC v. Apple Inc." on Justia Law
Gonzalez v. Google, LLC
Plaintiffs challenge the district court's dismissal of three actions seeking damages under the Anti-Terrorism Act (ATA) against Google, Twitter, and Facebook on the basis that defendants' social media platforms allowed ISIS to post videos and other content to communicate the terrorist group's message, to radicalize new recruits, and to generally further its mission. Plaintiffs also claim that Google placed paid advertisements in proximity to ISIS-created content and shared the resulting ad revenue with ISIS. The Gonzalez Plaintiffs' appeal concerns claims for both direct and secondary liability against Google. The Taamneh and Clayborn Plaintiffs' appeals concern claims for secondary liability against Google, Twitter, and Facebook.In Gonzalez, the Ninth Circuit concluded that the presumption against the extraterritorial application of federal statutes did not prevent section 230 of the Communications Decency Act (CDA) from applying to plaintiffs' claims because the relevant conduct took place in the United States. Furthermore, the Justice Against Sponsors of International Terrorism Act of 2016 (JASTA) did not impliedly repeal section 230. The panel joined the First and Second Circuits in holding that section 230(e)(1) is limited to criminal prosecutions. Therefore, plaintiffs' claims were not categorically excluded from the reach of section 230 immunity. The panel affirmed the district court's ruling that section 230 immunity bars plaintiffs' non-revenue sharing claims. The panel also affirmed the district court's dismissal of the direct liability revenue-sharing claims for failure to adequately allege proximate cause. Separately, the panel concluded that the TAC's direct liability revenue-sharing claims did not plausibly allege that Google's actions qualified as acts of international terrorism within the meaning of 18 U.S.C. 2331(1), and that the secondary liability revenue-sharing claims failed to plausibly allege either conspiracy or aiding-and-abetting liability under the ATA.In Taamneh, the panel reversed the district court's judgment that the FAC failed to adequately state a claim for secondary liability under the ATA, concluding that the district court erred by ruling that plaintiffs failed to state a claim for aiding-and-abetting liability under the ATA. The district court did not reach section 230 immunity in Taamneh. In Clayburn, the panel affirmed the district court's judgment and concluded that the district court correctly held that plaintiffs failed to plausibly plead their claim for aiding-and-abetting liability. Accordingly, the panel affirmed the judgments in Gonzalez and Clayborn, and reversed and remanded for further proceedings in Taamneh. View "Gonzalez v. Google, LLC" on Justia Law
Rhode Island v. Alphabet, Inc.
After Cambridge Analytica improperly harvested user data from Facebook's social network, Google discovered that a security glitch in its Google+ social network had left the private data of some hundreds of thousands of users exposed to third-party developers. Google and its holding company, Alphabet, chose to conceal this discovery, made generic statements about how cybersecurity risks could affect their business, and stated that there had been no material changes to Alphabet's risk factors since 2017.Rhode Island, in a consolidated amended complaint, filed suit against Alphabet, Google, and others, alleging violations of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 for securities fraud, as well as violations of Section 20(a) of the Exchange Act. The district court granted Alphabet's motion to dismiss on the grounds that Rhode Island failed to adequately allege a materially misleading misrepresentation or omission and that Rhode Island failed to adequately allege scienter.The Ninth Circuit concluded that the complaint adequately alleged that Google, Alphabet, and individual defendants made materially misleading statements by omitting to disclose these security problems and that defendants did so with sufficient scienter, meaning with an intent to deceive, manipulate, or defraud. Applying an objective materiality standard, the panel concluded that Rhode Island's complaint plausibly alleges the materiality of the costs and consequences associated with the Privacy Bug, and its public disclosure, and how Alphabet's decision to omit information about the Privacy Bug in its 10-Qs significantly altered the total mix of information available for decisionmaking by a reasonable investor. Furthermore, the complaint adequately alleges scienter for the materially misleading omissions from the 10-Q statements. The panel also concluded that Rhode Island adequately alleged falsity, materiality, and scienter for the April 2018 and July 2018 10-Q statements. Accordingly, the panel reversed the district court's holdings to the contrary and reversed the dismissal of the section 20(a) control-person claims based on the 10-Q statements.Because the complaint does not plausibly allege that the remaining statements at issue are misleading material misrepresentations or omissions, the panel affirmed the district court's dismissal of the Section 10(b) and Rule 10b-5(b) statement liability claims based on these statements. The panel also affirmed the district court's dismissal of the Section 20(a) controlling-person claims for these statements. Finally, because the district court erred in sua sponte dismissing Rhode Island's claims under Rule 10b-5(a) and (c) when Alphabet had not targeted those claims in its motion to dismiss, the panel reversed the dismissal of the claims under Section 10(b) and Rule 10b-5(a) and (c) against all defendants and remanded to the district court. The panel also reversed the dismissal of Rhode Island's claims under Section 20(a) to the extent those claims depend on claims alleging violations of Rule 10b-5(a) and (c). View "Rhode Island v. Alphabet, Inc." on Justia Law
Lemmon v. Snap, Inc.
The Ninth Circuit reversed the district court's judgment dismissing an amended complaint against Snap based on immunity under the Communications Decency Act (CDA), 47 U.S.C. 230(c)(1). Plaintiffs, the surviving parents of two boys who died in a high-speed accident, alleged that Snap encouraged their sons to drive at dangerous speeds and caused the boys' deaths through its negligent design of its smartphone application Snapchat. Specifically, plaintiffs claimed that Snapchat allegedly knew or should have known, before the accident, that its users believed that a reward system existed and that the Speed Filter was therefore incentivizing young drivers to drive at dangerous speeds.The panel applied the Barnes factors and concluded that, because plaintiffs' claim neither treats Snap as a "publisher or speaker" nor relies on "information provided by another information content provider," Snap does not enjoy immunity from this suit under section 230(c)(1). In this case, Snap is being used for the predictable consequences of designing Snapchat in such a way that it allegedly encourages dangerous behavior, and the CDA does not shield Snap from liability for such claims. The panel declined to affirm the district court's decision on the alternative ground that plaintiffs have failed to plead adequately in their amended complaint the causation element of their negligent design claim. Accordingly, the panel remanded for further proceedings. View "Lemmon v. Snap, Inc." on Justia Law
Clare v. Clare
A husband's unauthorized access into his wife's work emails—undoubtedly an invasion of her privacy—could also constitute a violation of the Stored Communications Act.After wife and her law firm employer filed suit against husband and his divorce lawyer, the other parties resolved their claims and wife filed a second amended complaint alleging one cause of action against husband under the Act. The district court granted summary judgment for husband because wife failed to show that the e-mails husband allegedly accessed were in "back up storage" as defined by the Act.The Ninth Circuit reversed the district court's exclusion of a declaration submitted by plaintiff, concluding that the district court abused its discretion in disregarding the declarant's personal knowledge about wife's e-mail storage. The panel explained that the evidence does not require expert qualification where the declarant was employed with the IT company that services wife's law firm and the information he provides is far from technical.The panel held that the Act provides a private cause of action against one who intentionally accesses without authorization a facility through which an electronic communication service is provided and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage. Electronic storage includes storage for purposes of backup protection, which requires that there be a second, backup copy of a message. In this case, the declaration submitted by plaintiff created a genuine dispute of material fact with respect to whether the e-mails defendant accessed were entitled to protection under the Act. Finally, the panel agreed with the Fourth Circuit's recent rejection of any distinction between the protection afforded to "service copies," meaning those less conveniently accessible. The panel reversed the district court's grant of summary judgment and remanded for further proceedings. View "Clare v. Clare" on Justia Law