U.S. Supreme Court rules on key internet and content matters

May 18, 2023 -- The Supreme court’s rulings on several key issues have been closely watched by content creators, some of whom feared that it would widen the scope of copyrighted material that could be used for further derivative works. Here’s what their findings were.

The Andy Warhol Foundation and Lynn Goldsmith

The Supreme Court sided with a photographer in a dispute with the Andy Warhol Foundation over the late artist’s use of her photos as the basis for his own series of portraits of Prince. The court’s ruling was closely watched by content creators, some of whom feared that it would widen the scope of copyrighted material that could be used for further derivative works.

The justices issued a narrow ruling focused on one of four factors used by courts to determine the “fair use” of a copyrighted work. That is the “purpose and character” of the use. On May 18, 2023, the Supreme Court sided with a photographer in a dispute with the Andy Warhol Foundation over the late artist’s use of her photos as the basis for his own series of portraits of Prince. The justices issued a narrow interpretation focused on one of several factors used by courts to determine the “fair use” of a copyrighted work and the “purpose and character” of the use. The factors include “the nature of a copyrighted work,” “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” and “the effect of the use upon the potential market for or value of the copyrighted work.”

The Motion Picture Association filed a friend-of-the-court brief in the case that was not in favor of either party, but its lawyers expressed concerns that the case could create a broader definition of what constitutes a “fair use.” Mitch Glazier, the CEO of the Recording Industry Association Of America, suggested that the court’s ruling would have an impact on questions over artificial intelligence stating, “We hope those who have relied on distorted – and now discredited – claims of ‘transformative use,’ such as those who use copyrighted works to train artificial intelligence systems without authorization, will revisit their practices in light of this important ruling.”

Twitter, YouTube and The Family of Nohemi Gonzalez of California and The Family of Nawras Alassaf of Jordan

The Supreme Court rejected an effort to hold Twitter and other platforms responsible for “aiding and abetting” terrorism because the extremist groups posted fund-raising and recruiting content on their platforms. The judges, though, avoided a ruling on Section 230, the provision of a 1996 law that generally protects social media from liability over their moderation of third-party content. 

The family of Nawras Alassaf, a victim of a terrorist attack on an Istanbul nightclub sued Twitter and other platforms under a 2016 antiterrorism statute. The law permits those injured by a terrorist act to sue anyone “who aids and abets, by intentionally providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” In a unanimous opinion written by Justice Clarence Thomas, the court ruled that the plaintiffs had failed to prove that the tech platforms aided ISIS.

“As alleged by plaintiffs, defendants designed virtual platforms and knowingly failed to do ‘enough’ to remove ISIS-affiliated users and ISIS related content—out of hundreds of millions of users worldwide and an immense ocean of content—from their platforms,” Thomas wrote. “Yet, plaintiffs have failed to allege that defendants intentionally provided any substantial aid to the Reina attack or otherwise consciously participated in the Reina attack—much less that defendants so pervasively and systemically assisted ISIS as to render them liable for every ISIS attack.”

The justices declined to rule on the applicability of Section 230 in a separate case, brought by the family of Nohemi Gonzalez who was of a victim of a 2015 ISIS attack in France against (YouTube) Google. Given the ruling in the Twitter case, they sent the case back to the 9th Circuit Court of Appeals. 

February 20, 2023 -- In a major case to be argued before the U.S. Supreme Court on Tuesday, the nine justices will adjudicate the scope of Section 230, a part of the Communications Decency Act of 1996 that frees platforms from legal responsibility for content posted online by their users. A ruling that could expose internet companies to litigation from every direction.

The justices will hear arguments in an appeal by the family of Nohemi Gonzalez, a 23-year-old woman from California shot dead during a 2015 rampage by Islamist militants in Paris, of a lower court's ruling dismissing a lawsuit against YouTube's owner Google LLC seeking monetary damages, citing Section 230. Google and YouTube are part of Alphabet.

The family claimed that YouTube, through its computer algorithms, unlawfully recommended videos by the Islamic State militant group, which claimed responsibility for the attacks, to certain users. A ruling against the company could create a "litigation minefield," Google told the justices in a brief. Such a decision could alter how the internet works, making it less useful, undermining free speech and hurting the economy, according to the company and its supporters. It could threaten services as varied as search engines, job listings, product reviews and displays of relevant news, songs, or entertainment, they added.

Section 230 guards "interactive computer services" by making sure they cannot be treated as the "publisher or speaker" of information provided by users. Legal experts note that companies could employ other legal defenses if Section 230 protections are curbed.

Calls have come from across the ideological and political spectrum - including Democratic President Joe Biden and his Republican predecessor Donald Trump - for a rethink of Section 230 to ensure that companies can be held accountable. Biden's administration urged the justices to revive the Gonzalez family's lawsuit.

Gonzalez, who had been studying in Paris, died when militants fired on a crowd at a bistro during the rampage that killed 130 people.

The 2016 lawsuit by her mother Beatriz Gonzalez, stepfather Jose Hernandez and other relatives accused YouTube of providing "material support" to Islamic State in part by recommending the group's videos to certain users based on algorithmic predictions about their interests. The recommendations helped spread Islamic State's message and recruit jihadist fighters, the lawsuit said.

The lawsuit was brought under the U.S. Anti-Terrorism Act, which lets Americans recover damages related to "an act of international terrorism." The San Francisco-based 9th U.S. Circuit Court of Appeals dismissed it in 2021. The justices will hear the family's appeal of a lower court's decision largely based on immunity granted to social media companies under Section 230 of the Communications Decency Act of 1996. 

They will hear a related case involving Twitter Inc. on Wednesday.  American relatives of a Jordanian man named Nawras Alassaf slain in 2017 in an Istanbul nightclub shooting that killed 39 people - with Islamic State again claiming responsibility - accused Twitter in a lawsuit of aiding and abetting the group by failing to police the platform for its accounts or posts.  Twitter is appealing after a lower court allowed that lawsuit to proceed and found that the company refused to take "meaningful steps" to prevent Islamic State's use of the platform. 

Google has attracted support from various technology businesses, scholars, legislators, libertarians and rights groups worried that exposing platforms to liability would force them to remove content at even the hint of controversy, harming free speech. The company defended its practices. Without algorithmic sorting, it said, "YouTube would play every video ever posted in one infinite sequence - the world's worst TV channel."

 "This court should not undercut a central building block of the modern internet," Google told the justices in a filing. "Eroding Section 230's protection would create perverse incentives that could both increase removals of legal but controversial speech on some websites and lead other websites to close their eyes to harmful or even illegal content," it added.