The Federal Communications Commission has released a long-awaited notice of proposed rulemaking (NPRM) with the goal of bringing back its 2015 net neutrality rules that classified broadband internet as a common carrier and prohibited the blocking, throttling, and paid prioritization of content. The 2015 rules, promulgated under the Obama administration, were repealed in 2017 by former Commissioner Ajit Pai.

Though many expected President Biden’s 2020 victory to result in re-adoption of the 2015 rules, President Biden did not appoint a fifth Commissioner to the FCC until recently, leaving the agency at a 2-2 standstill down party lines for the past two years. With the appointment of Commissioner Anna Gomez, Biden’s FCC is now at full operating capacity to move forward on major actions and reestablish the net neutrality rules. And with the NPRM, the Commission has demonstrated that there are a multitude of changed conditions that necessitate re-adopting the 2015 rules: the NPRM establishes “the increased importance of [broadband internet access service] to consumers since the onset of the pandemic,” that consumers’ perception of broadband internet access service as a standalone telecommunications service is “more pronounced now than it was in 2015,” and that “developments in recent years have highlighted national security and public safety concerns arising in connection with the U.S. communications sector[.]”

Continue Reading FCC Issues Draft Net Neutrality Order For October 2023 Meeting

Steptoe has been tracking the fast-moving developments in artificial intelligence both in the United States and internationally. Below is an update on recent legal and policy developments related to AI, with a focus on intellectual property and high-profile policy issues. 

Continue Reading AI Legal & Regulatory News Update—Week of 9/24/23

Steptoe has been tracking the fast-moving developments in artificial intelligence both in the United States and internationally. Below is an update on recent legal and policy developments related to AI, with a focus on intellectual property and high-profile policy issues. 

Continue Reading AI Legal & Regulatory News Update—Week of 9/17/23

A Federal Court ruled that works that are entirely created by artificial intelligence (“AI”) systems cannot receive a copyright under United States law. Contrary to how this decision has been reported in news summaries, the case was decided on a relatively narrow issue, and kept the door open for future decisions to expand on this new area of the law.

The plaintiff used an AI system called the “Creativity Machine” to generate a piece of visual art called “A Recent Entrance to Paradise” (reproduced below):

The plaintiff claimed that the work had been “autonomously created by a computer algorithm running on a machine,” and attempted to register the work with the Copyright Office.  The Copyright Office denied the application on the ground that copyright law only extends to works created by human beings.

Continue Reading 100% AI-Generated Works Cannot Receive A Copyright (But Works Created Jointly By Humans And AI May Be Copyrightable)

Since the release of OpenAI’s ChatGPT, artificial intelligence, specifically the rise of large language models (LLMs), has become a topic of discussion for media, pop culture, and businesses alike. As these entities have begun to grapple with the new technology, Federal regulators have also begun to grapple with the new technology. The FCC and FTC have begun to take somewhat divergent paths in their approaches toward the new technology.

Continue Reading Artificial Intelligence Regulation: The Dueling Approaches of the FCC and FTC

Please join Steptoe’s Tod Cohen, along with in-house counsel, executives, academics, and policymakers on Thursday, February 23, for the first installment of the 2023 Internet Law and Policy Roundtable.

During this interactive virtual event series, we’ll discuss recent developments, evolving issues, and trends in internet law and policy. We’ll save time at the end of each session to address your questions. Our February installment will focus on data privacy and protection issues in a post-Dobbs world. We hope to see you online! 

Register for this free virtual event here: https://email.steptoecommunications.com/139/9049/landing-pages/rsvp-blank.asp

On October 3, 2022, the Supreme Court granted cert in Gonzalez v. Google, marking the first time that the Court will consider the scope of Section 230.  As discussed previously on this blog, Section 230 has increasingly taken center stage in debates about censorship and content moderation.  Yet, for the most part, courts have continued to interpret it expansively.  The Court faces a delicate balancing act in considering the scope of immunity granted by Section 230.

The instant case arises from the 2015 terrorist attacks in Paris.  Reynaldo Gonzalez’s daughter, Nohemi Gonzalez, was murdered in the terror attacks by ISIS terrorists.  Her family members brought an action against Google, alleging that Google had aided and abetted ISIS by hosting their videos.  Although simply hosting a video would normally be protected by Section 230, the plaintiffs additionally alleged that YouTube had affirmatively recommended ISIS videos, which helped ISIS recruit new terrorists.  The district court, though, disagreed and dismissed the claim.

The district court’s decision was consistent with existing precedent.  However, after the appeal had been briefed, Judge Katzmann in the Second Circuit wrote a dissent in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), arguing that recommendation of content should not be protected by Section 230.  The Ninth Circuit subsequently ruled in Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) that recommending content does not remove Section 230 protection.  The panel hearing the Gonzalez appeal therefore found itself in an unusual situation.  Dyroff was Ninth Circuit precedent that governed the decision, which led the panel to uphold the dismissal.  Two judges, though, were troubled by this outcome.  One, Judge Berzon, concurred in the opinion but wrote separately to state that she would have held otherwise if not for Dyroff.  The other, Judge Gould, dissented and argued that Judge Katzmann in the Second Circuit had been correct.   After a petition for en banc rehearing was denied, Gonzalez sought cert on the specific issue of whether Section 230(c)(1) immunizes Internet companies for making targeted recommendations provided by other parties or if the liability is limited to only traditional editorial functions.

Despite there being no circuit split or even intra-circuit split, as every court to have considered the issue has agreed that targeted recommendations are protected by Section 230, the Supreme Court granted cert.

Continue Reading The Internet Under Siege: The Future of Section 230?

In a blog post released on August 3, 2021, FTC Bureau of Competition Acting Director, Holly Vedova, announced that, in response to “a tidal wave of merger filings,” the FTC had begun to send standard form letters “alerting companies that the FTC’s investigation remains open and reminding companies that the agency may subsequently determine that the deal was unlawful.” Merging parties receiving such letters were warned by the blog post that although they may “choose to proceed with transactions that have not been fully investigated, they are “doing so at their own risk.”

Technically, the blog post reiterates what the law already provides. The Hart-Scott-Rodino Act already states that “any failure of [the FTC or the DOJ] to take any action … shall not bar any proceeding or any action with respect to such acquisition at any time,” and that nothing in the HSR Act limits the authority of the FTC or DOJ to obtain documents, testimony, or information under the Antitrust Civil Process Act, the FTC Act, or otherwise. 18 U.S.C. § 18a(i).

But, notwithstanding the recent FTC challenge to Facebook’s acquisition of Instagram and WhatsApp (albeit under §2 of the Sherman Act rather than §7 of the Clayton Act), such post-consummation challenges (or even investigations) of transactions that have previously been subject to HSR review are exceedingly rare.

Accordingly, we have four take-aways from Holly Vedova’s blogpost:

  • The blogpost is another indication that the FTC under Chairwoman Lina Khan may be more serious about challenging mergers — including consummated mergers.
  • Parties need carefully to consider this new policy in negotiating merger agreements, because closing conditions predicated on the expiration of relevant waiting periods are likely unaffected by the receipt of such a warning letter. Parties may wish to consider whether closing conditions predicated on the absence of a pending or threatened investigation are satisfied where the FTC has issued such a warning letter stating that the “investigation remains open and ongoing.”  And parties may wish explicitly to address in their merger agreements the effect of the receipt of such a warning letter.
  • Unless the Antitrust Division of the DOJ adopts a similar policy, this creates another meaningful distinction between the federal antitrust enforcement agencies in terms of merger review practice.
  • Because prior challenges to consummated HSR-reviewable transactions have been so rare, institutionalizing the issuance of this type of warning letter – and the potential for the perpetuation of investigations with no statutory or other limit on their duration – introduces an element of uncertainty into deal planning that runs counter to the almost 50-year course of practice under the HSR Act.

Parties should pay close attention to how aggressively the FTC proceeds under this new policy over the next few months. The policy injects another dose of uncertainty at a time when merger review practice is already being changed.

Judge gavel on a computer keyboard

In a little over 18 months, Vimeo has three times vindicated its rights under Section 230 to take down objectionable content.  Vimeo’s victory came first in the Southern District of New York; the decision there was affirmed by the Second Circuit.  In a rare procedural twist, the Second Circuit panel vacated its decision, but issued an opinion upholding Vimeo’s right to take down objectionable content the following week.  The cases illustrate that Section 230’s strength is not solely in subsection (c)(1) but also in (c)(2), which protects a website’s ability to “in good faith . . .  restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  47 U.S.C. § 230(c)(2).  The trilogy of cases underscores the continued importance of Section 230 to Internet companies, even as it comes under increasing criticism from the public, politicians, and the judiciary. Continue Reading Not Once, Not Twice, But Thrice: Vimeo’s Victory in Taking Down Objectionable Content

Recently, an obscure provision of the Communications Act has been thrust into the limelight.  Section 230 is now discussed nearly daily on talk shows and in newspapers, and is gaining increasing criticism from the courts. The result of this attention is that Congress is now working on reforming Section 230, with a bevy of bills proposed that could dramatically affect the free and open Internet, with the consequences difficult to predict.

First, as a bit of background, Section 230 has two main subsections. The first subsection is direct:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 U.S.C. § 230(c)(1). In the words of the Fourth Circuit, Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).

Continue Reading Section 230: Major Legislation and Its Future in 2021