When Platforms Infringe: Defining the Scope of Section 230’s Intellectual Property Carve-Out
Journal
American University Law Review Forum
Volume
74
Abstract
Section 230 of the Communications Decency Act broadly immunizes social media companies and other internet platforms from being held liable for content created by users. However, Section 230(e)(2) creates an exception to this sweeping immunity, allowing companies to be held accountable for user-generated content that violates intellectual property laws. The statute, however, does not define “intellectual property.” This ambiguity is the focus of this Note. Federal courts are split on whether Section 230(e)(2), the so-called “intellectual property carve-out,” includes state-based intellectual property claims. This Note argues that it does not. Including state-based intellectual property law in the carve-out would mean the scope of Section 230 would differ from state to state. Compounding the issue, there is substantial disagreement about whether certain state-based claims, such as the right of publicity, qualify as intellectual property laws at all. This fuzzy patchwork of state laws would lead to inconsistent liability and impose nearly insurmountable compliance challenges for platforms, threatening their ability to facilitate interstate communications. Ultimately, a clear and consistent interpretation of Section 230(e)(2)—one that is limited to the well-defined categories of federal intellectual property law—is essential to ensure uniform application of the law across jurisdictions.
Repository Citation
Annabel Weinbach,
When Platforms Infringe: Defining the Scope of Section 230’s Intellectual Property Carve-Out,
74
(2024).
Available at:
https://digitalcommons.wcl.american.edu/stusch_lawrev/42