The 2020 Presidential Election and Should Social Media Laws that Affect the Outcome of Intellectual Property Laws Be Dramatically Changed?

 According to the Merriam-Webster Dictionary, social media are “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).”²⁰ In other words, social media are vehicles for electronic communication. The Cambridge Dictionary defines social media as “websites and computer programs that allow people to communicate and share information on the internet using a computer or cell phone.”²¹ According to Investopedia, social media “refers to a computer-based technology that facilitates the sharing of ideas, thoughts, and information through virtual networks and communities.”²² Social media is based on the Internet, allowing users to quickly communicate their personal information, documents, videos, and photographs. Although social media is omnipresent in the United States and Europe, Asian countries lead the planet in social media usage.²³

 There are a variety of laws that deal with social media in one way or another. First, the four common law privacy torts have some relevance when dealing with social media. Second, copyright law should be considered when focusing on social media, particularly Section 512(c), or the safe harbor provision. The essay proceeds to look at the effect of Section 230 of the CDA on the various privacy torts and intellectual property (IP) laws, including Copyright Law, Trade Secret Law, Patent Law, and Trademark and the Right of Publicity Law. The CDA is discussed before the Right of Publicity Law because the CDA can be an affirmative defense to the right of publicity.

 The right to privacy to information regarding one’s person was clarified by Prosser when he organized the right to privacy doctrine into the following four distinct torts:

Unreasonable intrusion upon another’s seclusion;

Public disclosure of private facts;

False light invasion of privacy; and

Appropriation of another’s name or likeness.^{24, 25}

 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.²⁶

 Copyright is a form of intellectual property that is protected by United States law.²⁷ The protection is available for original works of authorship that are fixed in a tangible form and can be published or unpublished.²⁸ Copyright laws can protect software programs and only covers the form of material expression.²⁹ Copyright law does not safeguard concepts, ideas, techniques, or facts that make up a particular work, which is why work must be fixed in a tangible format.³⁰ A classic example of a physical form would be printed books on paper or original paintings.

The main goal of copyright law is to protect the creator’s creativity, time, and work effort.³¹ In promoting this goal, the Copyright Act of 1976 gave the copyright owner the exclusive rights to:

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.³²

The use of copyrighted material is not an exclusive right.³³ The copyright owner also had the right to assign their copyrights to third parties.³⁴ A contract typically achieved the assignment of rights even though it was not legally mandated that the transfer of rights be memorialized in a written document.³⁵

An author of work can create the work in their employment. This is known as “work for hire.”³⁶ Registration of a copyright is unnecessary, but it is advantageous to have a recorded copyright.³⁷ According to the Berne Convention, work created after 1989 need not have a copyright notice.³⁸ These are the essential features of copyrights.

On October 2, 1998, President Clinton signed The Digital Millennium Copyright Act (DMCA) into law.³⁹ The result was that the United States of America became a signatory to the two 1996 World Intellectual Property Organization (WIPO) treaties – the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.⁴⁰ The DMCA consists of the following five titles:

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.⁴¹ 

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.⁴²

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.⁴³

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,⁴⁴ and the first prong of Section 512(c) may not apply. Suppose an analysis result is a physical object created for non-utilitarian purposes, incorporating some artistic features. In that case, the physical object is eligible for copyright protection even if the software that created the object is open-sourced.^{45, 46} In Feist, the Supreme Court opined that a low threshold of originality invokes copyright protection,⁴⁷ even though the functional characteristics of the object are not copyrightable.⁴⁸ For example, if the ISP’s analysis of the infringing contents were a coffee cup, there would be no copyright protection for the ISP, and the first prong of Section 512(c) would be violated. However, if the coffee cup contained some artistic expression, like a handle that looks like the wings of a bird, then the coffee cup handle would be copyrightable, but the rest of the coffee cup would not be copyrightable.⁴⁹ Given that the ISP made a profit on selling the coffee cup, it is likely that the ISP violated the first prong of Section 512(c).

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.⁵⁰ The USTA defines trade secrets and describes claims related to trade secrets. Currently, 47 states and the District of Columbia have adopted the UTSA.⁵¹ According to the UTSA, a trade secret is “information, including a formula, pattern, compilation, program, device, method, technique, or process that:

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.”⁵²

Before the UTSA was created, the unauthorized use or disclosure of a trade secret was traditionally a common-law tort.⁵³ Sections 757 and 758 of the Restatement of Torts (First) established the basic principles of trade secret law that United States courts widely employed.⁵⁴ In particular, Section 757, comment b, listed six factors to be considered in deciding whether information constituted a trade secret:

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.⁵⁵

 The first thing to notice about the definition is that trade secrets are broadly defined.⁵⁶ There are two requirements imposed on information to be a trade secret. First, there must be economic value to the information because the information is not publicly well-known.⁵⁷ Second, effort must be expended to ensure that the information is kept secret from the public.⁵⁸ An example of a trade secret is the formula for making Coke-Cola or the herbs and spices that Kentucky Fried Chicken uses. The result is that trade secrets are a much larger breadth of information than copyrights, patents, and trademarks.⁵⁹ Trade secrets can encompass any information developed for natural persons or companies that is not publicly well-known.⁶⁰

Necessity of Trade Secrets. There are seven reasons why trade secrets are necessary, including:

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.⁶¹ 

First, new technology, such as computers, ensures that information can be easily misappropriated.⁶² Second, although companies are loathed for acknowledging this fact, current and former employees are the entities that are most frequently sued for trade secret misuse.⁶³ Third, trade secrets increase in value because of the ever-expanding world economy.⁶⁴ Fourth, over the years, trade secrets and secret litigation have increased because trade secret law is maturing and becoming ubiquitous.⁶⁵ Fifth, the flexible definition of a trade secret promotes additional trade secret litigation.⁶⁶ Sixth, there is an increased threat of trade secret theft as individuals and foreign nations desire to evolve technologically, thereby leveling the economic playing field.⁶⁷ Finally, the changes in U.S. patent law have tilted the balance toward trade secrets.⁶⁸

According to Halligan and Weyland, core competencies are entrenched in trade secrets.⁶⁹ However, core competencies are sometimes seen as static phenomena.⁷⁰ What must not be forgotten is that an organization is much more than its core competencies. An organization can also be characterized by dynamic capabilities, which are “the firm’s ability to integrate, build, and reconfigure internal and external competencies to address rapidly changing environments.”⁷¹

A World without Trade Secrets. A world without trade secrets is hard to imagine because people seem naturally selfish. They are interested in discovering specific information but desire to profit financially from their discoveries. However, some individuals appear to be trained to be altruistic. They believe that they will grow and society will grow much faster if all share information.⁷² This conflict does not appear to have a resolution. From a philosophical, selfishness and altruism are contradictory opposites, wherefrom a Hegelian perspective, one is the thesis, and the other is the antithesis. If static Aristotelian logic is employed, there is no solution.⁷³ One side must conquer the other. But if the logic of the Hegelian dialectic is used, a synthesis emerges from a thesis and an antithesis.⁷⁴ The problem is that this author has no idea what would be the result of this synthesis. One can only suspect and hope that the synthesis would contain the better parts of the selfish desire to profit financially and the altruistic yearning to advance as a society.

Accomplishments of Trade Secrets. This is an interesting question that can only be answered in a capitalist economic system. Trade secrets are economic phenomena whose value derives from the economic value of information.⁷⁵ Another reason trade secrets exist comes from the Lockean labor theory of value, where individuals own their labor.⁷⁶ These days, the problem with this justification is that the vast majority of people work for corporations that require, as a condition of employment, that they sign over the rights to their labor to the organization. In other words, trade secrets do little to preserve an individual’s rights to the results of a person’s labor.

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.⁷⁷ The final justification of trade secrets is the populist image or myth that if a person works both smart and hard, they too can achieve significant economic gain through discovering valuable information, protecting it from public disclosure, and reaping the profits from its possession.⁷⁸

 On May 11, 2016, President Obama signed the Defend Trade Secrets Act (DTSA) into law.^{79, 80} The DTSA is a United States federal law permits a trade secret owner to sue in federal court when its trade secrets are misappropriated.⁸¹ The DTSA is closely aligned with the UTSA. The DTSA extended the Economic Espionage Act (EEA) of 1996, criminalizing specific trade secret misappropriations and granting legal immunity to corporate whistleblowers.⁸²Schein was the first DTSA case where the court granted a restraining order preventing an ex-employee from soliciting the plaintiff’s customers.⁸³

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.⁸⁴ Unauthorized acquisition occurs when an individual obtains a trade secret but does not have the authority to acquire the trade secret from the trade secret owner.⁸⁵ Unauthorized disclosure happens when an individual that the trade secret owner authorizes to know the content of a trade secret discloses the trade secret to a person who is not authorized to know the content of the trade secret.⁸⁶ Unauthorized use arises when an individual that the trade secret owner authorizes to know the content of a trade secret employs the trade secret in a manner not authorized by the trade secret owner.⁸⁷ Finally, knowledge of a trade secret that is acquired by mistake or accident implies that a trade secret was obtained when an authorized individual revealed a trade secret to a third party that had reason to know that they were receiving a trade secret.⁸⁸

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.⁸⁹ Reverse engineering, also known as back engineering, is the “^disassembly and examination of products that are available to the public.”⁹⁰ It is a process whereby a manufactured object is deconstructed to expose its design, architecture, or unearth knowledge from the object.⁹¹ The process is similar to scientific research, where the difference is that scientific research concerns natural phenomena, whereas reverse engineering deals with taking apart and understanding how human-made objects work.⁹²

Reverse engineering is a chemical engineering, electrical engineering, mechanical engineering, software engineering, or systems biology methodology.⁹³ The beneficial reasons to reverse engineer an object include:

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.⁹⁴

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.⁹⁵

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.”⁹⁶ An example of a patentable invention would be an engine that runs on water, burning hydrogen and releasing oxygen into the atmosphere. To obtain a patent, a patent applicant must show that inventions must be novel, useful, and non-obvious.⁹⁷

An invention is novel if it is generally new and unknown to the public and gives its owner a competitive advantage.⁹⁸ Novelty is essential in assessing the patentability of an invention.⁹⁹ Novelty also means new when compared to the prior state-of-the-art. An invention must be helpful or possess utility, meaning that the invention must have specific, substantial, and credible use.¹⁰⁰ An invention is non-o bvious when the invention is not apparent to an individual skilled in the art.¹⁰¹ In contrast to novelty, non-obviousness can exist where the prior art lacks identity with the patent claims.

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.¹⁰² A patent application must contain the name(s) of the actual inventor. A patent claim can be invalidated if the applicant is not the inventor but derived the patent from another individual’s work.¹⁰³ In the United States, and before March 16, 2013, when there werecompeting inventors of an invention, the inventor who was first to invent received the patent.¹⁰⁴ However, after March 13, 2013, the United States became the first-to-file nation. If a patent was filed before March 13, 2013, the patent follows the first-to-invent rules.¹⁰⁵

 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 therefor^e, infringes the patent.”¹⁰⁶ When without authority, a third party employs social media to use, offers to sell, or sells a patented invention, the third party is infringing on the patent owner’s rights.¹⁰⁷ According to Section 230 of the CDA, once an ISP is made aware of the infringing conduct and offending content, the ISP is obliged to remove the content promptly. Failure to remove the offending content may invalidate the ISP’s immunity from prosecution. The CDA will be discussed in greater detail in an upcoming section of this paper.

 This section is broken up into three subsections. The first subsection discusses trademark law in general. The second subsection deals with trademarks and domain names. The third subsection talks about trademarks and cybersquatting.

 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.”¹⁰⁸ American trademark law originates from seventeenth-century English to nineteenth-century American case law. Trademarks are like cattle brands, where ranchers use them to identify their cattle.

Trademarks are important because they distinguish one merchant from another, helping customers decide where to take their business.

Blanchard was the first English decision of a claim based on the use of a trademark.¹⁰⁹ Here, a playing card maker sought an injunction to prevent the defendant from using the Great Mogul as a stamp on his cards. The case suggested that the plaintiff had the sole right to the stamp because his company was given a charter from King Charles I. The judge denied the injunction, probably because politics influenced the decision. After all, Charles I was beheaded for treason in 1642.¹¹⁰

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.¹¹¹ A trademark qualifies as distinctive if either:

1) It is inherently distinctive of source; or

2) It has developed an acquired distinctiveness of source.¹¹²

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.¹¹³ A generic term refers to the genus of a given product, which is a species. Under common law, neither generic nor descriptive terms could be valid trademarks.¹¹⁴ A descriptive but not generic term is a word (or words) “that merely describes a product or its ingredient, quality, characteristic, function, feature, purpose or use.”¹¹⁵ An example of a descriptive mark is “Cold and Creamy” for ice cream.¹¹⁶ In Stix Products, the court opined that a mark is suggestive if “it requires imagination, thought, and perception to conclude the nature of ^the goods.”¹¹⁷ A mark is arbitrary if the mark is “composed of a word or words that have a common meaning in the language of the relevant jurisdiction; however, that meaning is unrelated to the goods or services for which the mark is used.”¹¹⁸ Finally, a trademark is fanciful if the zmark “consists of a combination of letters with no meaning; thus, it is an invented word.”¹¹⁹

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.¹²⁰ A mark can also be barred from registration if it “disparage^s or falsely suggest^s a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”¹²¹ A non-geographic deceptive mark can neither be registered nor protected under federal trademark law.¹²² However, a non-geographic “deceptively misdescriptive” mark may be registered and protected under federal law only if the trademark owner can demonstrate that the mark has developed secondary meaning as a designation of its source.¹²³

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.¹²⁴ The mark must be put on a product sold or transported in commerce or used for advertising purposes.¹²⁵ By commerce, it means all commerce that Congress regulates.¹²⁶ Finally, a third party can use a trademark provided the mark is used in “good faith only to describe the goods or services of ^{the trademark owner} or their geographical origin.”¹²⁷ This is known as the fair use 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.”¹²⁸ It should be remembered that obtaining a domain name is not a substitute for securing trademark rights; in and of itself, it does not establish trademark rights by using an Internet address. A domain name has two parts, the top-level generic domain name (e.g., “.com”) and the second- level domain name (e.g., “amazon” or “google”). A second-level domain name can include:

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”).¹²⁹

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.¹³⁰

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.¹³¹ Because the cost of registering a domain name is essentially negligible, a firm should probably attempt to register a slew of domain names that use hyphens (e.g., “united-airlines.com”) and misspellings (e.g., “unitdairlnes.com”) to act as a defensive perimeter against would-be cyber squatters.¹³² Part of the challenge of maintaining a defense perimeter is constant vigilance or recognizing the possibility that there are character gaps in the perimeter. Above all, entities that own domain names should post prominent notices on their websites, expressly stating their ownership of their marks and domain names.¹³³

Cybersquatting is a deliberate, bad faith, and abusive registration of Internet domain names with the intent to gain financial remuneration from an entity.¹³⁴ Cybersquatting usually violates an organization’s trademark rights.¹³⁵ Even so, the law secures the rights of a trademark owner because a “domain name is more than a mere address: like trademarks, second-level domain names communicate information as to source.”¹³⁶

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).¹³⁷ Because the courts have upheld the constitutionality of the ACPA, a plaintiff must prove:

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.”¹³⁸

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.¹³⁹

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.¹⁴⁰ Which option to choose depends on an organization’s objectives and goals. Sometimes waiting to pursue legal action is appropriate, while other times is not. There are no easy answers here.

 This section of this essay is divided into three parts. The first subsection discusses the CDA in general. The second subsection focuses on the debate regarding the social protections provided to social media by Section 230. The third subsection highlights the proposed legislation to limit Section 230.

 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 1996.¹⁴¹ First, the CDA attempted to regulate indecency on the Internet when indecency affected children and obscenity in cyberspace.¹⁴² Second, Section 230 of Title 47 of the United States Code was interpreted by the CDA to mean that ISPs are not publishers and therefore not legally liable for the words posted by individuals that employ their services.

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.¹⁴³ It says, “ⁿo provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”¹⁴⁴ Section 230(c)(2) provides a “Good Samaritan” safe harbor from civil suits, where an ISP removes or edits third-party material that the ISP believes to be obscene. It is irrelevant whether the Constitution protects the speech inquestion.¹⁴⁵ In 1997, the Supreme Court struck down CDA’s anti-indecency provisions in Reno, ¹⁴⁶ although Section 230 was severed from the rest of the CDA, remaining good law.¹⁴⁷ Since Reno, there have been several unsuccessful challenges to Section 230.¹⁴⁸

Although Section 230 has frequently been referred to as the law that permitted the Internet to develop,¹⁴⁹ the protections provided by Section 230 are not unbounded. In 2018, Section 230 was amended by the Stop Enabling Sex Traffickers Act (FOSTA-SESTA), requiring ISPs to remove digital content that violated federal and state sex trafficking laws.¹⁵⁰ Recently, Section 230 has been scrutinized on issues relating to hate speech and ideological biases that major technology companies possess regarding political discussions, particularly during the 2020 United States presidential election.¹⁵¹

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.¹⁵²

The immunity given by Section 230 is limited. The exceptions to Section 230 include federal criminal liability,¹⁵³ electronic privacy violations,¹⁵⁴ intellectual property claims,¹⁵⁵ and state laws consistent with the statute.¹⁵⁶ The immunity does not apply to content created or developed by the ISP,¹⁵⁷ and the CDA does not bar civil actions based on promissory estoppel.¹⁵⁸ For intellectual property claims, the courts are divided. For example, in CCBill, the Ninth Circuit opined that the exception to intellectual property law only applies to federal intellectual property claims, such as copyright infringement, trademark infringement, and patents, rather than state intellectual property claims.¹⁵⁹ Finally, ISPs must comply with the DMCA to ensure Section 512(c) safe harbor protections.¹⁶⁰

The two early challenges to Section 230 came from Zeran¹⁶¹and Roommates.com.¹⁶² In both cases, the courts upheld Section 230. However, in recent years, Big Tech companies like Facebook, Google, and Apple Computer were scrutinized, where it was alleged that Russian agents used websites to influence the 2016 presidential election in favor of Donald Trump. These organizations were criticized for not preventing users from engaging in hate speech and harassment on social media.¹⁶³ There has been a lively debate about how Section 230 should be changed.

Platform Neutrality. Senators Ted Cruz and Josh Hawley have argued that Section 230 should apply only to politically neutral ISPs. They claim that when an ISP takes a political position, it is acting as a publisher or speaker of user content, deciding what gets published and what does not get published.¹⁶⁴

Hate Speech. Because of the shootings in El Paso, Texas,¹⁶⁵ and Dayton, Ohio,¹⁶⁶ Section 230 has been considered in establishing liability regarding online hate speech. In the El Paso shooting, the assailant posted an alleged hate speech on 8kun, where 8kun was previously called 8chan, Infinitechan, or Infinitychan, an imageboard of user-created messages. However, hate speech is usually protected under the First Amendment, and Section 230 immunizes ISPs, provided that the content of the speech is not illegal.

Terrorism-Related Content. With the passage of FOSTA-SESTA, legal scholars Citron and Wittes found that terrorist groups maintained social media accounts despite federal laws making it illegal to support terrorist groups.¹⁶⁷ The Second Circuit held that under Section 230, technology companies are not necessarily liable for civil claims predicated on terrorism-related content.¹⁶⁸

2020 Department of Justice Review. In February 2020, the United States Department of Justice (DOJ) chaired a workshop regarding Section 230, big tech companies, and antitrust violations. Former Attorney General Barr stated that Big Tech had matured and questioned the need for Section 230.¹⁶⁹ The outcome of the workshop was that the DOJ issued the following four recommendations to Congress in June 2020:

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.”¹⁷⁰

 Defamation. In the vast majority of cases, the courts have upheld Section 230. In Blumenthal, the court upheld AOL’s immunity to modify or remove content that an independent contractor created because it was not the information content provider.¹⁷¹ In Batzel, immunity was upheld for an ISP that distributed an email, even though the plaintiff opined that the email was defamatory.¹⁷² In Barrett, court immunity was sustained for an individual Internet user who republished defamatory statements on a listserv, an application that distributes messages to subscribers on an electronic mailing list, because the defendant was a user of interactive computer services.¹⁷³ However, in badbusinessbureau.com, the court rejected the defendant’s motion to dismiss due to immunity because the defendant wrote disparaging editorial messages in response to the plaintiff’s belittling report titles and headings.¹⁷⁴

False Information. In Gentry, the court upheld eBay’s immunity for claims predicated on forged autograph sports items sold online.¹⁷⁵ In Goddard, the court sustained immunity against fraud and money laundering claims because the court believed that Google was not responsible for misleading advertising purchased from Google by a third party.¹⁷⁶ In Grindr, the Second Circuit upheld immunity for the LGBT dating app regarding the misuse of false profiles that a natural person created.¹⁷⁷

Sexually Explicit Content. In the City of Livermore, the California Court of Appeals found that a public library was not responsible when a patron downloaded pornography from the library’s computers, even though the computers did not restrict access by minors.¹⁷⁸ In Doe, the Fifth Circuit upheld the immunity of MySpace, a social networking site, from negligence and gross negligence for not instituting safety measures to protect minors from online sexual predators.¹⁷⁹ In LLC Hoffman, the court upheld immunity for Backpage.com, a classified advertising website, when the firm contested a Washington state law (SB6251) that made companies that provide third-party content liable for crimes related to a minor.¹⁸⁰

Miscellaneous Cases. In Chicago Lawyer’s Committee, the court upheld immunity for Craigslist because of the discriminatory statements in classified advertisements by third parties.¹⁸¹In Delfino, the California Appellate Court upheld immunity from state tort claims when an employee used their employer’s email system to send threatening messages.¹⁸² Finally, in Force, the Second Circuit upheld Facebook’s Section 230 immunity even though the site hosted terrorism-related content. The plaintiff asserted that because Facebook hosted content thatresulted in the deaths of several individuals, Facebook was liable under the United States Anti- Terrorism Act (USATA).

 In 2020, various bills were introduced to Congress that intended to reduce the liability protections in Section 230 afforded Internet platforms.

EARN IT Act of 2020. In March 2020, with bipartisan support, the Eliminating Abuse and Rampant Neglect of Interactive Technologies (EARN-IT) was introduced into the Senate. The bill had the support of the National Center on Sexual Exploitation (NCSE)¹⁸³ and the National Center for Missing and Exploited Children (NCMEC).¹⁸⁴ The Electronic Frontier Foundation (EFF),¹⁸⁵ the American Civil Liberties Union (ACLU),¹⁸⁶ and many other organizations criticized the bill for fear that the best practices in the bill would create backdoors for encryption.¹⁸⁷ The bill amended Section 230(c)(2) by allowing any state to serve an ISP with a lawsuit if it failed to address child sexual abuse on their platform or if they permitted end-to-end encryption without ensuring that law enforcement could decrypt the information. The bill passed the Senate Judiciary Committee by 22-0 on July 2, 2020,¹⁸⁸ and was introduced in the House on October 2, 2020.¹⁸⁹

Limiting Section 230 Immunity to Good Samaritans Act. In June 2020, Senators Marco Rubio, Kelly Loeffler, and Kevin Cramer requested that the Federal Communications Commission (FCC) review the Section 230 protections afforded Big Tech companies, concluding that it was time to look at Section 230 anew.¹⁹⁰ On June 17, 2020, Senator Hawley introduced the bill in the Senate with co-sponsors, Senators Rubio, Braun, and Cotton.¹⁹¹

Platform Accountability and Consumer Transparency (PACT) Act. In June 2020, Senators Brian Schatz and John Thune introduced this bipartisan bill into the Senate. The bill would require Internet platforms to publish public statements on how they moderate, demonetize, and remove user content from their sites. The ISPs would also be required to publish quarterly reports with the relevant statistics, summarizing their actions for the quarter. Essentially, these quarterly reports would be similar to a 10-Q, required by the Securities Exchange Act of 1934. The bill would permit the states’ Attorney Generals to enforce actions against Internet platforms.¹⁹²

Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act. Senator Hawley introduced this bill in July 2020. The bill would remove Section 230 immunity protection for large service providers that employed behavioral advertising.¹⁹³

Online Freedom and Viewpoint Diversity Act. In September 2020, Senators Lindsay Graham, Roger Wicker, and Marsha Blackburn introduced this bill into the Senate. The bill proposes to remove Section 230 liability protection for a site that fails to provide a reason for moderating or restricting content, demanding that the ISP have an objective and reasonable belief that the content violated the site’s terms. The bill would also replace the vague term “objectionable” with a specific definition.¹⁹⁴

Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms (SAFE TECH) Act. In February 2021, Senators Mark Warner, Mazie Hirono, and Amy Klobuchar introduced this bill into the Senate. The bill makes multiple changes to Section 230. First, the bill would change Section 230(c)(1) to cover speech but not information, ensuring that ISPs are liable for illegal speech. Second, the bill would remove Good Samaritan immunity regarding federal and state civil rights laws, antitrust laws, cyberstalking laws, human rights laws, or wrongful death suits. Third, the bill would eliminate immunity for commercial speech, such as advertising or marketplace listings. Finally, the bill would require ISPs to comply with court orders regarding removing the content listed above.¹⁹⁵

Executive Order 13925. On May 28, 2020, President Donald Trump the Executive Order on Preventing Online Censorship (EO 13925).¹⁹⁶ The Executive Order opined that media companies that edit content, except when restricting posts that are violent, obscene, or harassing, are “engaged in editorial conduct” and thus lose their immunity under Section 230(c)(1).¹⁹⁷ However, the courts have interpreted the phrase “in good faith” based on its plain meaning, EO 13925 specified conditions where good faith could be revoked. The FCC, the Commerce Department, the National Telecommunications and Information Administration (NTIA), and the Attorney General would determine whether an ISP was biased. According to the executive order, the Federal Trade Commission (FTC) would decide if a federal lawsuit was warranted.¹⁹⁸ Although there was a great deal of controversy regarding EO 213925, on May 14, 2021, President Joseph Biden rescinded the executive order.¹⁹⁹

Health Misinformation Act. In July 2021, Senators Amy Klobuchar and Ren Ray Luján introduced into the Senate a bill that would make ISPs liable for publishing health misinformation during a public health emergency as determined by the Department of Health and Human Services (DHHS).²⁰⁰

Justice Against Malicious Algorithms Act. In October 2021, Representatives Anna Eshoo, Frank Pallone Jr., Mike Doyle, and Jan Schakowsky introduced this bill into the House. The bill would remove Section 230 protections that dealt with personalized recommendation algorithms that provide users with content that knowingly or recklessly furthers physical or severe emotional injury.²⁰¹

 This section contains two subsections. The first subsection addresses the right of publicity in general. The second subsection talks about the right of publicity and social media.

The right of publicity is an intellectual property right recognized in just over 50 percent of the states.²⁰² It is a branch of unfair competition law. The right of publicity protects individuals against the unauthorized commercial use of a person’s identity, including their name, likeness, or image.²⁰³ The impact of the right of publicity has expanded due to the national and international growth of the Internet. Individuals possess previously unheard-of technology to market and exploit themselves and their identities contractually in life and after death regarding the sale of goods and services.²⁰⁴ Violations of the right of publicity frequently occur in unfair competition cases or in suits where a person’s identity also serves as a trademark where there is a possibility for confusion or dilution.²⁰⁵ The scope of the right of publicity differs by state. Foreign nations have laws that are similar to state right of publicity laws. Currently, there is no federal right of publicity law.²⁰⁶

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.²⁰⁷

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.²⁰⁸ Trademark laws protect a plaintiff’s identity when there is potential confusion with the defendant’s use of that identity. The laws regarding the right of publicity are possibly broader than trademark laws because there is no need to show the likelihood of confusion.²⁰⁹ Sections 2(a) and 2(c) of the Lanham Act are similar to the right of publicity. After all, the sections prevent a defendant from registering a mark in some situations.²¹⁰ Finally, there is federal protection against the unauthorized use of a person’s name as a domain name. The Intellectual Property and Communications Omnibus Reform Act of 1999 generated a civil action against a defendant that uses a plaintiff’s name as a domain name, intending to sell the domain name back to the plaintiff or a third party.²¹¹ According to the Third Circuit, the Act applies if the domain name was registered before November 29, 1999, and later reregistered to another entity.²¹² In contrast, the Ninth Circuit opined that the original registration would apply even if the registration were before November 29, 1999.²¹³

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.²¹⁴ The right of publicity may also be preempted by the First Amendment based on the right of freedom of expression.²¹⁵ Artistic expression,²¹⁶ parody,²¹⁷ politically, newsworthy, or factually based speech,²¹⁸ anti-SLAPP statutes,²¹⁹ and the CDA²²⁰ are all First Amendment defenses to the right of publicity. Other defenses in a right of publicity claim include the first sale doctrine,²²¹ the statute of limitations,²²² the single publication rule,²²³ and abandonment.²²⁴

 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.²²⁵ Websites that stream live broadcasts are difficult to police for violations of the right to publicity because of a broadcast’s spontaneity.²²⁶ Also, startup organizations without extensive financing may be unwilling or unable to police their sites for infringing activity.²²⁷

With the presence of multiplayer online games, there is a question of the scope of the right of publicity laws.²²⁸ In multiplayer games, players use animated characters or avatars who buy and sell goods and services in a virtual marketplace. In virtual reality, players could believe their avatars are a proxy for themselves and their identity, where a player possesses the right to control their avatars under the right of publicity. Avatars may also appear in other games and may be subject to a right of publicity contract when a game involves celebrities.²²⁹ The contract in the real world may likely govern publicity rights in the virtual world. If a contract does not determine publicity rights or the scope of a contract is exceeded, the rights of publicity laws in the real world would determine the outcome of a case, including First Amendment defenses.²³⁰ Because the Internet provides dynamic content, it is possible that secondary liability could exist.²³¹ Secondary liability is where one party is liable for infringement where the party aids in linking sites that infringe on a plaintiff’s rights of publicity. The defendant is not sued for a direct infringement but as a party that aided and abetted an infringement from another party.

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