Bring on the Publicity Trolls: Federal Appeal Court Ruling Drastically Undermines Online Speech

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In a disastrous ruling for online expression, innovation and competition, a federal appeals court has held that internet intermediaries are on the hook for expensive litigation and potential damages for violating a person’s “right of publicity,” (i.e., the right to control the commercial use of your persona). All because some people think of this right as a form of “intellectual property.”

State law claims are normally barred under Section 230, a law has enabled decades of innovation and online expression. But Section 230 doesn’t apply to intellectual property claims, so if publicity rights are intellectual property (“IP”), the theory goes, intermediaries can be sued for any user content that might evoke a person.

If that’s the case, intermediaries will only be able to host as much speech as their lawyers, content moderators, and filters could screen beforehand, based on the most restrictive provisions in wildly varying state laws. In California, publicity rights protections apply to virtually anything that evokes a person, and last for 70 years after

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