Facebook Can’t Challenge Warrants for User Information
This week a New York appellate court (In re 381 Search Warrants Directed to Facebook) held that Facebook cannot litigate the constitutionality of a warrant pre-enforcement nor can it warn its users about the pending search. According to the court, “there is no constitutional or statutory right to challenge an alleged defective warrant before it is executed.”
In the years since passage of the Digital Millennium Copyright Act (“DMCA”), the copyright industries have demanded that online intermediaries — both those covered by the DMCA and those falling outside the statute’s ambit — do more than the law requires to protect their intellectual property rights. In particular, they have sought new ways to reach and shutter “pirate sites” beyond the reach of United States law. Their demands have been answered through an expanding regime of nominally voluntary “DMCA-plus” enforcement.
This chapter surveys the current landscape of DMCA-plus enforcement by dividing such enforcement into two categories: Type 1 and Type 2. Type 1 DMCA-plus enforcement is cooperation by DMCA-covered intermediaries over and above what is required for safe harbor. Type 2 DMCA-plus enforcement is cooperation by intermediaries whose activities fall outside the scope of the DMCA’s safe harbors and who are not liable for their customers’ copyright infringements under secondary liability rules.
As the gap widens between what the law requires and what intermediaries are agreeing to do on a voluntary basis, there is reason to be concerned about the expressive and due process rights of users and website operators, who have no seat at the table when intermediaries and copyright owners negotiate “best practices” for mitigating online infringement, including which sanctions to impose, which content to remove, and which websites to block without judicial intervention.
I have seen the term “cyber banging” in news articles. I have even referenced the term in prior posts. However, I have not, until today, seen it appear in an actual published case. The First Appellate court in California recently used the term in reviewing a juvenile proceeding. In the case of in re G.H., the appellate court described cyber banging as follows:
Many of the photographs and messages on appellant’s Facebook page amounted to “cyber-banging,” which Gault described as using the Internet to promote one’s own gang or to disrespect rival gangs. In one such exchange, appellant responded to posts that disrespected the Swerve Team by making threats and posting pictures of himself pointing what appeared to be a gun. Gault recognized Deandre and two other individuals in the group photographs on appellant’s Facebook page to be Swerve Team members. Deandre was on appellant’s list of Facebook “friends.”
In 2013, the Trademark Manual of Examining Procedure (TMEP) was amended to specify that a mark including the hash symbol (#) is registrable “only if it functions as an identifier of the source of the applicant’s goods or services”; the inclusion of a hashtag at the front of a mark, just like that of a top-level domain at the end, does not make the mark more distinctive than it would be without. But the TMEP does not go far enough — not only does the addition of a hash symbol fail to transform a descriptive term into a protectable mark, it can render an otherwise registrable mark unregistrable. The symbol can transform a phrase from a viable trademark into a mere hashtag: consumers perceive it as a branding effort that directs them to social media to discuss, follow, or learn more about a particular campaign, or invites them to participate in an online conversation. Since the advent of the hashtag on Twitter, approximately six hundred hashtag marks (“hashmarks”) have been registered successfully on the Principal Register; approximately two thousand more use- or intent-to-use-based applications are currently pending, under examination, or have been abandoned or refused. The time is ripe for the Trademark Office to adopt a uniform approach in reviewing these applications and treat them consistently to ensure putative marks actually function as marks, which includes requiring distinctiveness, nonfunctionality, and use as a mark in interstate commerce in connection with the identified goods and services. Courts will inevitably need to adjudicate claims of infringement or dilution from hashmark owners as an issue of first impression. This article sets forth a taxonomy of hashmarks, explores the problems in granting them protection under the Lanham Act, and proposes a framework for ensuring their treatment serves the goals of trademark law, including protecting consumers, maximizing economic efficiency, and providing incentive and reward for producer creation of goodwill.