I think this analysis tries to hard to "gotcha" the pleading.
This is not a winner of a case, IMO, for two reasons:
Any "design" claim not based on a warning gets very close to a "you should never have allowed this product on the market" claim, which I don't think is a winner since plenty of people can use Insta and Snap safely.
The warning claims, as plead, basically ask for a warning to parents at the time the app is downloaded and in the first couple uses to prevent the kid from having any time to get addicted to the app without constant parental monitoring and control, and I don't think that warning is feasible.
But I don't think the complaint is internally inconsistent in getting to that point, just that it's not a winning argument.
First, at the complaint stage,
you really can't argue "proximate cause" while also arguing "strict product liability."
is just plain wrong. As I read the caselaw:
The test for strict liability is set forth in the Restatement (Second) of Torts ยง
402A (1965). This requires a plaintiff to prove: "(1) that the product was
defective; (2) that the defect was a proximate cause of the plaintiff's
injuries; and (3) that the defect causing the injury existed at the time the
product left the seller's hands."
Sikkelee v. Precision Airmotive Corp., 907 F. 3d 701, 710 (3d Cir. 2018) (citations omitted; emphasis mine). See also Colgate v. Juul Labs, Inc., 345 F.Supp.3d 1178, 1193 (N.D. Cal. 2018) (holding that for a California strict liability design defect claim, "a plaintiff has met his burden if he establishes that there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injury.")
Proximate cause is part of strict liability, AFAIK, unless there's some split on the understanding of the Restatement that I don't know about.
Even if proximate cause was a negligence-only concept, the Federal Rules of Civil Procedure allow pleading in the alternative; see Fed. R. Civ. P. 8(d)(3), " A party may state as many separate claims or defenses as it has, regardless of consistency" (emphasis mine).
The plaintiff can claim that it was both strict liability and negligence at the pleadings stage, and if those can't both be true at the same time, that's not a problem until summary judgment.
Next, I don't think Plaintiff's attempts to get her kid off of the apps once the kid was addicted tank a failure-to-warn claim on straight "these facts don't prove this case" grounds.
The pleadings imply that the warning should have made the parent keep the kid off the apps basically from the moment they were downloaded, sort of like "this is like early 1990's TV depiction of one-hit-and-you're-a-junkie drug addiction; once eyeballs touch the screen you're doomed" level of dangerousness. Parent's gotta get warned before the eyeballs touch the screen, after that first taste the parent didn't prevent their kid's a social media junkie and the damage has been done.
There's room for a Twombly/Iqbal plausibility argument there, that it's ridiculous to say that the apps are that dangerous or if they were that there was any sort of warning that would suffice. So depending on how "liberal" the judge is with products cases, it could be dismissed at the motion to dismiss stage.
But that's not what Tim Cushing said, which is that the pleadings themselves doom the claims by contradicting themselves. The pleadings just push the time for the warning far into the early moments of using the app, possibly to before it's even downloaded. And they don't necessarily harm the design defect claim.
That's kind of a "slippery slope" fallacy, isn't it?
Because "don't republish this information" is a lot less onerous a condition, especially to the individual consumer actually looking for tickets rather than trying to have some sort of middle-man or information business that doesn't buy tickets, than "lose your house."
Arguing about whether traditional principles of contract would find an extreme clickwrap enforceable (I would argue not) doesn't actually speak to why this particular bargain shouldn't be enforceable.
I think the CFAA (which, although Southwest did plead it in the Kiwi.com case in addition to the breach of contract claim, is arguably not applicable to TOS violations post-Van Buren v. US and may very well be dismissed) should be judged like any other addition to the basic law of contract; i.e., if you want to alter the conditions under which people bargain, you have to put forth a reason for additional regulation.
So, I can say that I think the CFAA is a bad law because it adds excessive civil and criminal penalties to conduct; there's no reason you need the "extra power" of the CFAA to enforce contract law.
But that "justify the law" principle is true for any proposed "solution" to Southwest's use of contract law to restrict Kiwi.com or Skiplagged from publishing its otherwise publishable fare information. You have to pass a law to change the basic principles of contract.
This is the converse of a complaint I often see with Techdirt's arguments against regulation of Google or Facebook or similar; that even though the "bigness" of the companies allow them to do something that "seems bad" for individual consumers or society at large, there's no reason the law should step in to stop it. The market will correct if the practice is "bad enough."
Southwest is a big company, but what's the special reason justifying us to prevent it from making the kind of contracts you and I could make with each other?
(You're not asking, but in case anyone else does, I think the IP claims are crap, but once again, trademark and copyright law are special extra statutes that add additional constraints on the ability to contract not present in the basic underlying theory of how/why contracts should be enforced.)
I'm not sure why this is so ridiculous, because of the terms of service violations.
Because, whether or not the information is the kind of public, factual information that isn't protected from dissemination by IP law, there's no law that says that Southwest has to provide that information free of contractual restrictions.
Contract law, as I understand it, says you can put before a person a one-sided printout, blank side up on the table, and say, "if you want to turn this piece of paper over, you agree not to repeat the information you find on the other side to anyone, even if it's a printout of Wikipedia," and that's an enforceable contract.
Or, similarly, "you can get my mail order catalog for free, but you have to promise not to publish the price list within it."
What's unenforceable about these contracts?
So, similarly, why can't Southwest put on its website, "if you interact with our fare database and make us serve you information, you can only use that information for yourself, and to purchase itineraries where you intend to fly every leg of a journey"?
Just to reiterate: why can't Southwest do this? Is there some conditions on being an air passenger carrier, or state or federal unfair trade practices law, or any other law or regulation that prevents contractual restriction of pricing data (i.e., "you only get to know the prices if you agree to the conditions under which we choose to publish them") only to end consumers who only buy itineraries Southwest wants to sell?
I know you guys at Techdirt are mostly non-lawyers, but when saying, "this case is silly," can we distinguish:
1) In the jurisdictions I'm most familiar with this argument wouldn't fly and I consider it bad policy, but I haven't actually done the research to find out whether we'll be unpleasantly surprised that DC law allows such general averments to incur consumer protection liability
from
2) I have carefully examined the consumer protection act at issue to determine that it is not as liberal as the plaintiffs claim as to what counts as a misrepresentation under DC law
?
Because I feel like I'm flying blind trying to comment on this lawsuit; I don't want to have to spend half an hour looking up caselaw on the DC CPPA to determine how far out of the usual realm of claims against statements by services plaintiffs are.
Sorry, hit enter too early; apparently you comment by hitting enter in the subject bar.
Anyway, this bit just rehashes a brief Kotaku article. I looked around and didn't find much that elaborated it elsewhere.
And I feel there's not enough on exactly how much public health responsibility the Ministry of Sport has, the discretion it has in its ability to exempt sports, and basically every other piece of information that could tell me whether the Ministry could declare curling or bowling or table tennis or any other indoor sport "not a sport" for purposes of the exemption due to public health reasons.
And if you want to go and grab me a link that makes that distinction, great! You've now done more work than Mr. Geigner, who wrote a "Schrodinger's Swedish Law" of an article where the point is only true if we look in the box and find out that there's no public health consideration or that it wasn't considered here.
"Dumb" really depends on assuming that Nintendo's business and culture are what you think they are, and no one has established that.
But I don't really want to argue Nintendo's business model, because I think the "need" for fan engagement relative to Nintendo's branding as a more "casual" or "toy-like" console is complicated enough that everyone will walk away insisting that their portion of the elephant is the most important one.
So, instead, before talking about "the facts," I want to talk about principles. What if an IP holder doesn't want your business, and is willing to lose money because of it? Why is that dumb?
I'm frustrated that this piece doesn't actually examine Nintendo's decision.
There's some assumptions here more or less along the lines of:
Nintendo gets a lot of money from "fans," and
Nintendo shouldn't give up the "fan" dollars.
And there's a lot packed into the second that I don't think can be snarked away if we want to talk about the ethos of copyright rather than just "good business decisions."
What if there was a conscious decision by Nintendo to leave money on the table because of some animus towards "fans" or desire for control beyond what money could provide?
Is there an argument that they shouldn't be able to lose/waste money exercising their rights if they want to, or is it just economic?
Without reading the complaint (why haven't you linked it, TechDirt? Don't you guys complain about that all the time?) my guess is that it's sort of a lateral argument.
Oatly isn't blue-colored, but a lot of Swedish brands are (see, e.g., logos for Ikea, Skanska, or SAAB) because blue is one of the two colors of the Swedish flag.
So the argument is, if someone's saying, "hey, I want the Swedish oat drink with the 'oat + y' name," they might pick Oaty instead of Oatly, being confused because lots of Swedish things are blue.
I can't comment about the merits of it because I don't know UK/EU trademark law, which for all I know has different standards for confusion than American law.
Both state and federal law are chock-full of "unfair and deceptive practices" laws like the Federal Trade Commission Act and the California Consumers Legal Remedies Act that hack away at the concept of "caveat emptor" and replace it with a variety of more restrictive allowed business practices.
So, for purposes of this argument, I'd like you to go find whichever one of the 50 states and District of Columbia has consumer rights law that most offends your libertarian sensibilities regarding "sins of omission" to the customer, the one that you would find most paternalistic and intrusive, and argue to me that, under any implication from the brief hypothetical I proposed, there's no case under established state law.
I'm not sure what you mean that the suit should have been tossed "walking in the door."
Judges don't on their own initiative throw out suits on the basis of being ridiculous unless they're by prisoners trying to waive the filing fee to sue, or the plaintiff is trying to sue Satan or some other individual who does not exist physically or legally in this plane of reality to show up and file a defense.
For everything else, ridiculous or otherwise, the judge waits for a motion to dismiss. That's the earliest time a case gets thrown out.
Now, Snap did that. And they did say the case was pretty dumb on the merits.
And you know what? The district judge mostly agreed! The appellate decision points out that the judge at the lower level said something along the lines that, if there was no Section 230 defense, the case would be "dismissed with leave to amend," meaning the plaintiffs would have to plead more facts (which they probably didn't have) to show how there was liability in this case.
Why would the District Court want more facts before it dismissed with prejudice? Well, there's a choice of law question -- whether it's a California or Wisconsin law case -- and it would be nice to have that cleared up in the pleadings so that wasn't a point of appeal. And requiring the plaintiffs to come back with more facts avoids an appeal on the basis of, "the court should have taken these super-broad pleadings in the best possible light." And keeping it to the pleadings is still the cheapest stage of the lawsuit.
But the district court went on to say that it didn't have to dismiss with leave to amend because Section 230 immunity dismissed the whole case right now.
That was a bad call because Section 230 doesn't fit well to this products suit. So it's back to the district court to dismiss with leave to amend, see if the plaintiffs can actually find some facts that make a case, and then it'll be dismissed.
So, for me, I don't get the dudgeon here. Let's say, instead of Section 230, which seems to apply to this case if you squint while tilting the pleadings the right way, Snap made an argument for something more left field to dismiss the case, like the Tax Anti-Injunction Act. And the district judge agreed, and then the Ninth Circuit said, "no! This isn't a case about a tax," would you then be saying, "because this case is so ridiculous, the court should let it be dismissed for any reason claimed, even if it makes no legal sense?"
You know this is irrelevant to the Ninth Circuit's decision, right?
The way the District Court looked at the case, which is the way a lot of courts look at legal defenses, was to say something like:
"Section 230 is a complete immunity if the actions fall under its umbrella. Since I think Section 230 applies, I'm not going to decide the underlying case as it doesn't matter whether it's a strong or weak case absent Section 230 immunity."
And then the Ninth Circuit said:
"Snap wants us to notice that the underlying lawsuit seems crazy dumb. Problem is, the judge below didn't rule on that. So we have no ruling to review; the district judge will have to decide that when the case gets back there."
Snap may ultimately not be responsible because California or Wisconsin law isn't plaintiff-friendly enough to allow this case to go forward. But that's totally separate from the 230 analysis, which is whether the camera app part of SnapChat is covered by Section 230.
Section 230 is only for communications by third parties on the internet.
If I make a "memeable chainsaw" that people hurt themselves doing avoidably stupid things with for the internet, and my products liability jurisdiction is one where it says, "yes, you have to go the extra mile to prevent morons from doing stupid things or we make you pay them bags of money," then Section 230 doesn't stop me from being sued for the chainsaw.
The question here is closer, because it's a non-communicative function of a social media app (you can save your snaps to memories and to your phone gallery without ever transmitting them, after all), but the issue is the characterization of the app as communication or non-communication, not the thought process of the user.
Only Snap was sued. Look in the C.D. Cal. PACER for the same case (complaint was filed May 23, 2019).
Your analysis, though, misses part IV of the 9th Circuit's decision (starting on pg. 17), which I'd paraphrase as:
"So, Snap asks us to say that this is a dumb products liability suit. The lower court judge didn't decide that, and didn't even decide if this was governed by California or Wisconsin law so we would really be considering stuff for the first time -- an appellate court no-no -- to make that judgment. Because of that, we have to assume that, but for Section 230, this would be a perfectly OK products liability suit."
So, because the court has to assume that having a camera app with a speedometer incurs liability, the Section 230 question becomes, to the Ninth Circuit:
"Does the fact that the camera app with speedometer is integral to a social media platform give Section 230 protection to the camera app?"
And I don't think it's crazy to say that the answer is no.
Imagine a hypothetical where Snap is actually Snap Holding, and there are two subsidiaries:
Snap Posting Things on the Internet, and
Snap Creating a Containerized, Black Box Camera App by Folks in a Faraday Cage Who Deliver a Physical Medium Containing the Code to Any Licensee and Never Personally or Professionally Connect to the Internet
And Snap Posting licenses the camera app from Snap Creating.
If the plaintiffs in this case were suing Snap Creating (either because they were smart or because Snap Holding won a motion substituting them as the real party), would Section 230 protection apply? I don't think it would, because the app itself isn't a content service.
In the real world, it's messy, there's no obvious division, everything's blended together. But that doesn't make the camera programming inseparable conceptually from the social app.
And, once again, whether this is fundamentally a bad tort claim doesn't matter because, in front of the Ninth Circuit, procedurally they have to assume it's viable.
I think there's a more nuanced argument to be made, although neither Ohio nor the poster made it.
The question is, in my mind, whether Google makes any sort of consumer protection law-covered guarantee that you get a particular kind of information retrieval service. I'm not convinced that it does, but if it did, it would change things.
Say the Ohio argument was as follows:
The AG has done a survey of Ohio consumers, and they believe, based on these advertising statements made by Alphabet, that what the Google search page provides is a service akin to consulting a reference librarian.
Here's a bunch of sworn statements from my experts, professors of library science and major figures in library and knowledge management trade associations, setting forth the standards for what a reference librarian provides the user, including the common standards of library practice in the field when users ask for controversial/incorrect/offensive material.
Google does not follow these standards and does not make it clear that it does not follow these standards.
Therefore, as Ohio consumers are not getting the information retrieval service they have been advertised in violation of consumer protection law.
I don't think this in reality is a winner of an argument if Ohio did it because I think the actual facts related to claims (1) through (3) are much less clear-cut than my hypothetical.
But I do think that the hypothetical argument avoids the First Amendment. If I hired a newspaper clipping service to send me relevant news items but they didn't give me any reason to know that they were run by extremely religious people who don't look at periodicals with pictures of women in them, I would have a reason to feel that I was deceived as to the nature of the service even if they had a First Amendment right to run the service as they see fit.
Tort law is, basically, taking a scale of behavior from "obviously fine" and "obviously horrible" and drawing an infinite number of hairsplitting distinctions between it, then picking one particular point of distinction to say, "yeah, it's this one thing that makes someone responsible."
(An aside: this line is not arbitrary, but it's not "objective"; based on your philosophy, your first principles of things like "the greatest good" and/or "do no harm" will lead you to different places than other people)
There's a line between what Snapchat did and your examples. Snapchat made the risk-taking behavior easier. Snapchat's functionality took the camera and the GPS and the other existing components and made it easier (and possibly more entertaining) to take one's picture at high speed than it would have been otherwise.
So, what's the line of liability for a device or function that makes high-speed selfies easy? Is it always on the user to be safe? Is there some level of "gamification" that makes using the app too attractive to adrenaline junkies that would create liability?
We can't have a society where people have no personal responsibility or obligation to make proper risk assessments. That way madness lies.
Is this a statement of what you think California law is, or what California law should be?
Because my understanding is that California's pretty liberal (i.e., what the U.S. Chamber of Commerce might call "jackpot justice" or a "judicial hellhole") when it comes to products liability.
It's reasonable for you to think that kind of law is insane and society-breakingly bad, but just thinking that doesn't make it less likely to be the law.
Regardless, the whole reason this is on Techdirt instead of a tort reform blog is the Section 230 defense, which is what the original commenter was speaking to; if California's general products liability law gives bags of money to morons, Section 230 isn't a great defense when the app as-installed without any communication or publication is claimed to be defective.
Once again, this is an argument against a Section 230 decision which is really, "I think this part of not-specific-to-the-internet law is dumb and I wish the internet was allowed to disrupt it," which is not how Section 230 works.
If this was a camera with a speedometer that, even though almost exclusively used for meme posting, required attaching a cable or moving a memory card to upload the pictures to the internet, this wouldn't be a Section 230 issue. The makers of the camera and its programming are not "content publishers." What would happen to the picture after it's taken does not change that it's the ability to take it that's the issue.
And so, as I see it, Snap slapped a camera with a speedometer on its social app. When it gets sued over the camera with a speedometer bit, it can't say, "well, we're a social app" to get out of it.
The same is true for the Homeaway decision. The law said, "if you get a taste of the money that flows to renting apartments, you have to follow the regulations." Facilitating payments is, on its own, regulatable, and giving people who use your Section 230-protected apartment listing app payment facilitation services doesn't somehow get you out of money handling regulation.
I'm not anti-libertarian and I am sympathetic to the arguments that current US product liability law and the extent that a municipal government can put its hand into your pocket are BAD POLICY.
But Section 230 doesn't automatically invalidate bad policy. It only prevents regulation of hosting what other people say.
How is it obvious that an oversight mechanism is insufficient?
Because the oversight mechanism, being automated, is designed to allow some infringement to occur.
But that's not the right question. The right question is whether the internet, which allows things at a scale that would seem impossible if using analog technologies, means that we apply different standards.
Yes, human review is impossible at internet scale. Does that mean that we must allow business models where human review is impossible, or is it just legally impossible to do certain things at internet scale (at least until we change the law)?
It's bad, but it's not inconsistent.
I think this analysis tries to hard to "gotcha" the pleading.
This is not a winner of a case, IMO, for two reasons:
But I don't think the complaint is internally inconsistent in getting to that point, just that it's not a winning argument.
First, at the complaint stage,
is just plain wrong. As I read the caselaw:
Sikkelee v. Precision Airmotive Corp., 907 F. 3d 701, 710 (3d Cir. 2018) (citations omitted; emphasis mine). See also Colgate v. Juul Labs, Inc., 345 F.Supp.3d 1178, 1193 (N.D. Cal. 2018) (holding that for a California strict liability design defect claim, "a plaintiff has met his burden if he establishes that there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injury.")
Proximate cause is part of strict liability, AFAIK, unless there's some split on the understanding of the Restatement that I don't know about.
Even if proximate cause was a negligence-only concept, the Federal Rules of Civil Procedure allow pleading in the alternative; see Fed. R. Civ. P. 8(d)(3), " A party may state as many separate claims or defenses as it has, regardless of consistency" (emphasis mine).
The plaintiff can claim that it was both strict liability and negligence at the pleadings stage, and if those can't both be true at the same time, that's not a problem until summary judgment.
Next, I don't think Plaintiff's attempts to get her kid off of the apps once the kid was addicted tank a failure-to-warn claim on straight "these facts don't prove this case" grounds.
The pleadings imply that the warning should have made the parent keep the kid off the apps basically from the moment they were downloaded, sort of like "this is like early 1990's TV depiction of one-hit-and-you're-a-junkie drug addiction; once eyeballs touch the screen you're doomed" level of dangerousness. Parent's gotta get warned before the eyeballs touch the screen, after that first taste the parent didn't prevent their kid's a social media junkie and the damage has been done.
There's room for a Twombly/Iqbal plausibility argument there, that it's ridiculous to say that the apps are that dangerous or if they were that there was any sort of warning that would suffice. So depending on how "liberal" the judge is with products cases, it could be dismissed at the motion to dismiss stage.
But that's not what Tim Cushing said, which is that the pleadings themselves doom the claims by contradicting themselves. The pleadings just push the time for the warning far into the early moments of using the app, possibly to before it's even downloaded. And they don't necessarily harm the design defect claim.
Re: Re: Terms of Service
That's kind of a "slippery slope" fallacy, isn't it?
Because "don't republish this information" is a lot less onerous a condition, especially to the individual consumer actually looking for tickets rather than trying to have some sort of middle-man or information business that doesn't buy tickets, than "lose your house."
Arguing about whether traditional principles of contract would find an extreme clickwrap enforceable (I would argue not) doesn't actually speak to why this particular bargain shouldn't be enforceable.
Re: Re: Terms of Service
I think the CFAA (which, although Southwest did plead it in the Kiwi.com case in addition to the breach of contract claim, is arguably not applicable to TOS violations post-Van Buren v. US and may very well be dismissed) should be judged like any other addition to the basic law of contract; i.e., if you want to alter the conditions under which people bargain, you have to put forth a reason for additional regulation.
So, I can say that I think the CFAA is a bad law because it adds excessive civil and criminal penalties to conduct; there's no reason you need the "extra power" of the CFAA to enforce contract law.
But that "justify the law" principle is true for any proposed "solution" to Southwest's use of contract law to restrict Kiwi.com or Skiplagged from publishing its otherwise publishable fare information. You have to pass a law to change the basic principles of contract.
This is the converse of a complaint I often see with Techdirt's arguments against regulation of Google or Facebook or similar; that even though the "bigness" of the companies allow them to do something that "seems bad" for individual consumers or society at large, there's no reason the law should step in to stop it. The market will correct if the practice is "bad enough."
Southwest is a big company, but what's the special reason justifying us to prevent it from making the kind of contracts you and I could make with each other?
(You're not asking, but in case anyone else does, I think the IP claims are crap, but once again, trademark and copyright law are special extra statutes that add additional constraints on the ability to contract not present in the basic underlying theory of how/why contracts should be enforced.)
Terms of Service
I'm not sure why this is so ridiculous, because of the terms of service violations.
Because, whether or not the information is the kind of public, factual information that isn't protected from dissemination by IP law, there's no law that says that Southwest has to provide that information free of contractual restrictions.
Contract law, as I understand it, says you can put before a person a one-sided printout, blank side up on the table, and say, "if you want to turn this piece of paper over, you agree not to repeat the information you find on the other side to anyone, even if it's a printout of Wikipedia," and that's an enforceable contract.
Or, similarly, "you can get my mail order catalog for free, but you have to promise not to publish the price list within it."
What's unenforceable about these contracts?
So, similarly, why can't Southwest put on its website, "if you interact with our fare database and make us serve you information, you can only use that information for yourself, and to purchase itineraries where you intend to fly every leg of a journey"?
Just to reiterate: why can't Southwest do this? Is there some conditions on being an air passenger carrier, or state or federal unfair trade practices law, or any other law or regulation that prevents contractual restriction of pricing data (i.e., "you only get to know the prices if you agree to the conditions under which we choose to publish them") only to end consumers who only buy itineraries Southwest wants to sell?
Different Definitions of "Silly"
I know you guys at Techdirt are mostly non-lawyers, but when saying, "this case is silly," can we distinguish:
1) In the jurisdictions I'm most familiar with this argument wouldn't fly and I consider it bad policy, but I haven't actually done the research to find out whether we'll be unpleasantly surprised that DC law allows such general averments to incur consumer protection liability
from
2) I have carefully examined the consumer protection act at issue to determine that it is not as liberal as the plaintiffs claim as to what counts as a misrepresentation under DC law
?
Because I feel like I'm flying blind trying to comment on this lawsuit; I don't want to have to spend half an hour looking up caselaw on the DC CPPA to determine how far out of the usual realm of claims against statements by services plaintiffs are.
Re: Where's the context?
Sorry, hit enter too early; apparently you comment by hitting enter in the subject bar.
Anyway, this bit just rehashes a brief Kotaku article. I looked around and didn't find much that elaborated it elsewhere.
And I feel there's not enough on exactly how much public health responsibility the Ministry of Sport has, the discretion it has in its ability to exempt sports, and basically every other piece of information that could tell me whether the Ministry could declare curling or bowling or table tennis or any other indoor sport "not a sport" for purposes of the exemption due to public health reasons.
And if you want to go and grab me a link that makes that distinction, great! You've now done more work than Mr. Geigner, who wrote a "Schrodinger's Swedish Law" of an article where the point is only true if we look in the box and find out that there's no public health consideration or that it wasn't considered here.
Where's the context?
Re: Re: Okay, they hate fans. So?
"Dumb" really depends on assuming that Nintendo's business and culture are what you think they are, and no one has established that.
But I don't really want to argue Nintendo's business model, because I think the "need" for fan engagement relative to Nintendo's branding as a more "casual" or "toy-like" console is complicated enough that everyone will walk away insisting that their portion of the elephant is the most important one.
So, instead, before talking about "the facts," I want to talk about principles. What if an IP holder doesn't want your business, and is willing to lose money because of it? Why is that dumb?
Just having money isn't a good in itself.
Okay, they hate fans. So?
I'm frustrated that this piece doesn't actually examine Nintendo's decision.
There's some assumptions here more or less along the lines of:
And there's a lot packed into the second that I don't think can be snarked away if we want to talk about the ethos of copyright rather than just "good business decisions."
What if there was a conscious decision by Nintendo to leave money on the table because of some animus towards "fans" or desire for control beyond what money could provide?
Is there an argument that they shouldn't be able to lose/waste money exercising their rights if they want to, or is it just economic?
Re:
Without reading the complaint (why haven't you linked it, TechDirt? Don't you guys complain about that all the time?) my guess is that it's sort of a lateral argument.
Oatly isn't blue-colored, but a lot of Swedish brands are (see, e.g., logos for Ikea, Skanska, or SAAB) because blue is one of the two colors of the Swedish flag.
So the argument is, if someone's saying, "hey, I want the Swedish oat drink with the 'oat + y' name," they might pick Oaty instead of Oatly, being confused because lots of Swedish things are blue.
I can't comment about the merits of it because I don't know UK/EU trademark law, which for all I know has different standards for confusion than American law.
Re: Re: Re: Re:
Caveat emptor isn't a thing.
Both state and federal law are chock-full of "unfair and deceptive practices" laws like the Federal Trade Commission Act and the California Consumers Legal Remedies Act that hack away at the concept of "caveat emptor" and replace it with a variety of more restrictive allowed business practices.
So, for purposes of this argument, I'd like you to go find whichever one of the 50 states and District of Columbia has consumer rights law that most offends your libertarian sensibilities regarding "sins of omission" to the customer, the one that you would find most paternalistic and intrusive, and argue to me that, under any implication from the brief hypothetical I proposed, there's no case under established state law.
Re: Re: Re: Wtf!
I'm not sure what you mean that the suit should have been tossed "walking in the door."
Judges don't on their own initiative throw out suits on the basis of being ridiculous unless they're by prisoners trying to waive the filing fee to sue, or the plaintiff is trying to sue Satan or some other individual who does not exist physically or legally in this plane of reality to show up and file a defense.
For everything else, ridiculous or otherwise, the judge waits for a motion to dismiss. That's the earliest time a case gets thrown out.
Now, Snap did that. And they did say the case was pretty dumb on the merits.
And you know what? The district judge mostly agreed! The appellate decision points out that the judge at the lower level said something along the lines that, if there was no Section 230 defense, the case would be "dismissed with leave to amend," meaning the plaintiffs would have to plead more facts (which they probably didn't have) to show how there was liability in this case.
Why would the District Court want more facts before it dismissed with prejudice? Well, there's a choice of law question -- whether it's a California or Wisconsin law case -- and it would be nice to have that cleared up in the pleadings so that wasn't a point of appeal. And requiring the plaintiffs to come back with more facts avoids an appeal on the basis of, "the court should have taken these super-broad pleadings in the best possible light." And keeping it to the pleadings is still the cheapest stage of the lawsuit.
But the district court went on to say that it didn't have to dismiss with leave to amend because Section 230 immunity dismissed the whole case right now.
That was a bad call because Section 230 doesn't fit well to this products suit. So it's back to the district court to dismiss with leave to amend, see if the plaintiffs can actually find some facts that make a case, and then it'll be dismissed.
So, for me, I don't get the dudgeon here. Let's say, instead of Section 230, which seems to apply to this case if you squint while tilting the pleadings the right way, Snap made an argument for something more left field to dismiss the case, like the Tax Anti-Injunction Act. And the district judge agreed, and then the Ninth Circuit said, "no! This isn't a case about a tax," would you then be saying, "because this case is so ridiculous, the court should let it be dismissed for any reason claimed, even if it makes no legal sense?"
Re: Wtf!
You know this is irrelevant to the Ninth Circuit's decision, right?
The way the District Court looked at the case, which is the way a lot of courts look at legal defenses, was to say something like:
"Section 230 is a complete immunity if the actions fall under its umbrella. Since I think Section 230 applies, I'm not going to decide the underlying case as it doesn't matter whether it's a strong or weak case absent Section 230 immunity."
And then the Ninth Circuit said:
"Snap wants us to notice that the underlying lawsuit seems crazy dumb. Problem is, the judge below didn't rule on that. So we have no ruling to review; the district judge will have to decide that when the case gets back there."
Snap may ultimately not be responsible because California or Wisconsin law isn't plaintiff-friendly enough to allow this case to go forward. But that's totally separate from the 230 analysis, which is whether the camera app part of SnapChat is covered by Section 230.
Re: Re:
Section 230 is only for communications by third parties on the internet.
If I make a "memeable chainsaw" that people hurt themselves doing avoidably stupid things with for the internet, and my products liability jurisdiction is one where it says, "yes, you have to go the extra mile to prevent morons from doing stupid things or we make you pay them bags of money," then Section 230 doesn't stop me from being sued for the chainsaw.
The question here is closer, because it's a non-communicative function of a social media app (you can save your snaps to memories and to your phone gallery without ever transmitting them, after all), but the issue is the characterization of the app as communication or non-communication, not the thought process of the user.
Re: Re: Re: Re:
Only Snap was sued. Look in the C.D. Cal. PACER for the same case (complaint was filed May 23, 2019).
Your analysis, though, misses part IV of the 9th Circuit's decision (starting on pg. 17), which I'd paraphrase as:
"So, Snap asks us to say that this is a dumb products liability suit. The lower court judge didn't decide that, and didn't even decide if this was governed by California or Wisconsin law so we would really be considering stuff for the first time -- an appellate court no-no -- to make that judgment. Because of that, we have to assume that, but for Section 230, this would be a perfectly OK products liability suit."
So, because the court has to assume that having a camera app with a speedometer incurs liability, the Section 230 question becomes, to the Ninth Circuit:
"Does the fact that the camera app with speedometer is integral to a social media platform give Section 230 protection to the camera app?"
And I don't think it's crazy to say that the answer is no.
Imagine a hypothetical where Snap is actually Snap Holding, and there are two subsidiaries:
And Snap Posting licenses the camera app from Snap Creating.
If the plaintiffs in this case were suing Snap Creating (either because they were smart or because Snap Holding won a motion substituting them as the real party), would Section 230 protection apply? I don't think it would, because the app itself isn't a content service.
In the real world, it's messy, there's no obvious division, everything's blended together. But that doesn't make the camera programming inseparable conceptually from the social app.
And, once again, whether this is fundamentally a bad tort claim doesn't matter because, in front of the Ninth Circuit, procedurally they have to assume it's viable.
Re: Re:
I think there's a more nuanced argument to be made, although neither Ohio nor the poster made it.
The question is, in my mind, whether Google makes any sort of consumer protection law-covered guarantee that you get a particular kind of information retrieval service. I'm not convinced that it does, but if it did, it would change things.
Say the Ohio argument was as follows:
I don't think this in reality is a winner of an argument if Ohio did it because I think the actual facts related to claims (1) through (3) are much less clear-cut than my hypothetical.
But I do think that the hypothetical argument avoids the First Amendment. If I hired a newspaper clipping service to send me relevant news items but they didn't give me any reason to know that they were run by extremely religious people who don't look at periodicals with pictures of women in them, I would have a reason to feel that I was deceived as to the nature of the service even if they had a First Amendment right to run the service as they see fit.
Re: Re:
Tort law is, basically, taking a scale of behavior from "obviously fine" and "obviously horrible" and drawing an infinite number of hairsplitting distinctions between it, then picking one particular point of distinction to say, "yeah, it's this one thing that makes someone responsible."
(An aside: this line is not arbitrary, but it's not "objective"; based on your philosophy, your first principles of things like "the greatest good" and/or "do no harm" will lead you to different places than other people)
There's a line between what Snapchat did and your examples. Snapchat made the risk-taking behavior easier. Snapchat's functionality took the camera and the GPS and the other existing components and made it easier (and possibly more entertaining) to take one's picture at high speed than it would have been otherwise.
So, what's the line of liability for a device or function that makes high-speed selfies easy? Is it always on the user to be safe? Is there some level of "gamification" that makes using the app too attractive to adrenaline junkies that would create liability?
Re: Re:
Is this a statement of what you think California law is, or what California law should be?
Because my understanding is that California's pretty liberal (i.e., what the U.S. Chamber of Commerce might call "jackpot justice" or a "judicial hellhole") when it comes to products liability.
It's reasonable for you to think that kind of law is insane and society-breakingly bad, but just thinking that doesn't make it less likely to be the law.
Regardless, the whole reason this is on Techdirt instead of a tort reform blog is the Section 230 defense, which is what the original commenter was speaking to; if California's general products liability law gives bags of money to morons, Section 230 isn't a great defense when the app as-installed without any communication or publication is claimed to be defective.
Section 230 Does Not Mandate Libertarianism
Re:
Because the oversight mechanism, being automated, is designed to allow some infringement to occur.
But that's not the right question. The right question is whether the internet, which allows things at a scale that would seem impossible if using analog technologies, means that we apply different standards.
Yes, human review is impossible at internet scale. Does that mean that we must allow business models where human review is impossible, or is it just legally impossible to do certain things at internet scale (at least until we change the law)?
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