Category Archives: Internet and New Media


Scarlett Johansson, who has repeatedly played Marvel’s Avenger character “Black Widow,” has sued Disney for breaching the promise in her contract to play in its new film, entitled “Black Widow,” that Disney would give the film a “wide theatrical release.”  Johansson was promised generous box office bonuses.  Instead, Disney released the film simultaneously in theaters and on its new streaming subscription service, Disney+.

The advent of studio-owned streaming opens a new front in a long history of litigation between talent and studios over how entertainment revenues are shared, particularly where the sharing is impacted by new technology and “vertical integration,” consolidation within major corporations of the means of bringing entertainment to consumers. read more

Defamation in the Era of Fake News

When I was a kid there were three major television networks and a relatively limited number of print publications. A great deal of capital was needed to become one of the few voices in mass media.

Now, in the Internet era, anyone with a computer and an Internet connection can be a publisher. This has democratized media, for better or for worse. The better part – lower barriers to entry for speakers – has been offset by, shall we say, degraded standards for accuracy and journalistic integrity. Witness the current dialogue over “fake news.”

With the proliferation of speakers has come a proliferation of people claiming that they have been defamed. read more

The Fading Enforceability of Passive Browsewrap Agreements

Recently Dick’s Sporting Goods, Barnes & Noble and have been on the losing side of court cases that involve enforcement of their websites’ terms of use. In each case, the defendants relied unsuccessfully on so-called “browsewrap” agreements, where a website’s terms and conditions of use are generally posted on the website via hyperlink.

The “wrap” moniker came from the brick and mortar notion that if a consumer tore open the shrink wrap on a tangible good, this constituted assent to the terms of sale printed somewhere in the packaging.  Online retailers picked up this notion by relying on “clickwrap” agreements, where consumers must check a box on a web page saying “I agree” before they can complete a transaction.  read more

Rights of Publicity Often Collide with First Amendment

In law school we all learned about the “four privacy rights” in first year torts class: (1) intrusion into plaintiff’s private affairs; (2) public disclosure of embarrassing private facts; (3) publicity that places plaintiff in a false light; and (4) appropriation of the plaintiff’s name or likeness.

The reason that these are called rights of “privacy” is that they all serve the value of being left alone in a society where technology multiplies the risk of intrusion into our solitude and dignity.

The fourth right, appropriation of name or likeness, alone among the four privacy rights has taken on a twin character.  read more

Gawker Verdict Reinvigorates Power of Privacy Claims

I’m old enough to remember the days when “the news” consisted of thirty minutes on one of three major television networks.  In those days there were high barriers to entry into the world of television or print media, leaving the news in the hands of major entities that, I believe, tried to apply sincere journalistic standards.  We had a relatively high level of comfort that what was delivered to us as “news” was: a) relatively important; b) relatively objective and c) relatively accurate.

With the advent of cable television and the Internet, “news” is now ubiquitous, available 24/7 through an unlimited number of sources.  read more

Contracts can Limit Ability to Use Otherwise Freely Available Facts or Ideas

Here in Tinsel Town, I regularly read about lawsuits where the plaintiff claims that his or her screenplay was revealed to someone who turned it into a hit film or show without consent or payment.  Just as regularly, I read that the case ended in judgment for the defense, as the judge granted a motion finding insufficient similarity between the plaintiff’s writing and the film or show.

These rulings are often grounded in a distinction in the law that copyright only protects original expressions but not ideas.  In other words, one cannot copyright the general idea of a mild-mannered person who doubles as a superhero with prodigious powers, but copyright law will protect the writings and images in “Superman” comics and stories.  read more

Anti-SLAPP Motions: a Powerful Tool for Media Defendants

Actor Frank Sivero sued Fox over his claim that “The Simpsons” character “Louie” was based upon Sivero’s character Frankie Carbone in “Goodfellas.” Sivero’s case was thrown out of court by a California state judge. (See “Fox Gets $250M ‘Simpsons’ Lawsuit From ‘Goodfellas’ Actor Tossed.”) No jury heard his claim. Nor was he defeated by a motion for summary judgment, a traditional pretrial motion to dismiss a claim that should be rejected if there is any triable dispute of fact for a jury to resolve. Instead, Sivero’s claim was dismissed pursuant to an “anti-SLAPP” motion, a powerful procedural device that was originally intended to benefit public interest groups, but has become the courtroom weapon of choice for media companies. read more

The Snore of the Century: Mayweather-Pacquiao Promoters v. Streaming Services

The promoters of the recent Mayweather-Pacquiao boxing match took one on the chin for raking in big dollars promoting the “Fight of the Century,” which instead was a technically masterful but tedious defensive performance by Mayweather, marred by reports that Pacquiao was fighting with an undisclosed injury. Not content with being knocked on the canvas for the quality of the fight, the promoters are sticking their chins out for another knockdown punch by threatening to sue those who pushed bootlegged streams of the fight, possibly including streaming apps Periscope and Meerkat.

Copyright owners have spent decades and millions of dollars taking technology companies to court over alleged facilitation of infringement through technology, with choppy results. read more

Hollywood Meets Silicon Valley

In “Hollywood Versus Silicon Valley,” I wrote of a series of epic court battles – Napster, Grokster, Youtube – that pitted Hollywood companies, owners of copyrighted content, in court against Silicon Valley innovators, creators of Internet technologies that enabled information sharing but also trading in infringing works.  The court battles against Napster and Grokster lead to the demise of those services.  In the case of Youtube, by contrast, Youtube co-opted some potential adversaries by engaging them with licensing/channel agreements, and has largely convinced the courts that it has complied with copyright law by acting promptly in response to takedown notices from copyright owners. read more

Ten-Year-Old ‘Perfect 10 v. CCBill’ Decision Withstands Test of Time

June marked the ten-year anniversary of the trial court’s Perfect 10 v. CCBill decision, one of the earliest — and still one of the most important — decisions determining Internet Service Providers (“ISP’s”) liability for the content of third parties on hosted sites. I had the privilege of being part of the team representing CCBill in this bet-the-company case, accomplishing a win that helped establish the Internet as the ubiquitous place it is today.

The Internet has afforded astonishing new channels for lawful commerce as well as unlawful activities. Previously, to engage in widespread libel or infringement one needed access to print media.  read more