Can Twitter delete a person's account?

Here's a case from December 2020 in the United States Court of Appeals for the Eleventh circuit.  Here's a map of the circuits.

This case is called ILLOOMINATE MEDIA, INC. and LAURA LOOMER v CAIR FLORIDA, INC. and TWITTER, INC, and is an appeal from the United States District Court for the Southern District of Florida.

Twitter banned Laura Loomer, a political activist and journalist, from its platform, because it claimed one of her tweets violated its Terms of Service.  Loomer claimed that CAIR, a Muslim civil rights group, "conspired with Twitter to ban her for her political beliefs." She alleged that CAIR interfered with her business relationship with Twitter.

To show that CAIR’s alleged instruction to ban Loomer constituted tortious interference with a business relationship, Loomer was required to show that she had “existing or prospective legal or contractual rights” in the use of her Twitter account.  Twitter’s Terms of Service, which Loomer did not dispute, allow Twitter to ban Loomer from its platform for any reason at all.  So even if CAIR instructed Twitter to ban her account, it did not tortiously interfere with a business relationship because Loomer did not have legal or contractual rights in the continued use of her account.

The court determined that the failure to meet the above requirement meant it did not need to consider whether Twitter’s decision to ban Loomer was protected under Section 230 of the Communications Decency Act.

This decision did not directly state that Twitter can ban an account, but it gives an idea of how the court would have probably ruled if that issue was directly decided.

Do you agree with the court's conclusion?  Why or why not?

What is the legal effect of a backslash?

Here's a case from December 2020 in the United States Court of Appeals for the Federal circuit.  Here's a map of the circuits.

This case is called BRACCO DIAGNOSTICS INC. v MAIA PHARMACEUTICALS, INC and is an appeal from the United States District Court for the District of New Jersey.

This is a patent infringement case that involves chemistry and is way too technical for me.  Blog readers who have a science or chemistry background will undoubtedly understand these arguments much more than I do.  But what I find interesting is that the court interpreted the meaning of a backslash /  [I always thought / was a forward slash and \ was a backslash, but that distinction doesn't appear relevant to the court's opinion.]
 

Maia stated the / meant "and."  Bracco stated it meant "and" or "or."  The court analyzed the use of the / in the patent application and various tables and charts within that application.  The court then concluded - We agree with Bracco that the district court correctly construed the backslash in surfactant/solubilizer to mean “and” or “or.”

In another case, a court analyzed the effect of the lack of an Oxford comma and determined that no Oxford comma meant one party owed $5 million!

Now we have the interpretation of / as a determining factor in a court's ruling.

Grammar, spelling, and punctuation matter!

Religious discrimination not allowed, even in a pandemic

Here's a case from December 2020 in the United States Court of Appeals for the Ninth circuit.  Here's a map of the circuits.

This case is called Calvary Chapel Dayton Valley v Steve Sisolak, Governor of Nevada and is an appeal of a case from the District Court for the District of Nevada.

To slow the spread of COVID-19, the State of Nevada issued an emergency order limiting social gatherings.  Several businesses and other entities were limited to "50% of fire code capacity", others were limited to "the lesser of 50% of fire code capacity or 50 persons".  Indoor, in-person services in houses of worship were limited to 50 persons.  The church argued that this limitation was specifically directed at, and discriminated against, houses of worship and did not meet the requirements which would allow the State to do that.

The First Amendment states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  This applies to state governments by the Fourteenth Amendment.

In determining whether a law prohibits the free exercise of religion, courts ask whether the law “is neutral and of general applicability.”  If it is, the law must only be rationally related to the government interest.  If not, the law must satisfy the stricter requirement of "narrowly tailored to meet a compelling government interest".

Calvary Chapel argued that §11 of the Directive was not neutral and generally applicable, because it expressly treats at least six categories of secular assemblies [casinos, restaurants and bars, amusement and theme parks, gyms and fitness centers, movie theaters, and mass protests] better than it treats religious services.  And because religious services are subject to First Amendment protection, the State must have a compelling interest in the regulation, and the regulation must be narrowly tailored to meet that compelling interest.  The church argued that the State had no valid reason to treat the church differently than those six commercial enterprises.
 

Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. Therefore, it is not neutral and of general applicability.  To survive strict scrutiny review, the Directive must be narrowly tailored to serve a compelling state interest.

Instead of a fifty-person cap, the Directive could have imposed a limitation of 50% of fire-code capacity on houses of worship, just like retail stores, restaurants, and casinos. Therefore, though slowing the spread of COVID-19 is a compelling interest, the Directive is not narrowly tailored to serve that interest.

The court ruled that Calvary Chapel was likely to win the case on the Free Exercise claim. The court also decided that enforcing the occupancy limitations would cause irreparable harm.  Therefore, the court issued an injunction, stopping the limitation of 50 persons on houses of worship.

Do you agree with the court's conclusion?  Why or why not?

"Fair Use" of a copyrighted work?

Here's a case from December 2020 in the United States Court of Appeals for the Ninth circuit.  Here's a map of the circuits.

This case is called Dr. Seuss Enterprises v ComicMix LLC and is an appeal of a case from the District Court for the Southern District of California.

Several entities filed Amicus Curiae ["friend of the court"] briefs, including Motion Picture Association Of America, Inc., The Copyright Alliance, and Sesame Workshop.

Defendants wrote a book called Oh, the Places You'll Boldly Go! ("Boldly")  They claimed it was a "fair use" of the Dr. Seuss book Oh, the Places You'll Go! ("Go")

The opinion includes this awesome line - The creators thought their Star Trek primer would be “pretty well protected by parody,” but acknowledged that “people in black robes” may disagree. Indeed, we do.

Fair Use requires analysis of the following four concepts under §107 of the Copyright Act of 1976:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The court analyzed each factor above:

(1) Whether and to what extent the new work is transformative. A transformative work adds something new, altering the first with new expression, meaning, or message.  This includes criticism, comment, news reporting, teaching, scholarship, and research.

The benchmarks of transformative use -
(1) the creation of new information, new aesthetic, new insights and understanding;
(2) new expression, meaning, or message,  the addition of value to the original; and
(3) the use of quoted matter as “raw material,” instead of merely repackaging it

Because Boldly left the inherent character of the book unchanged, it was not a transformative use of Go.

(2) The nature of the copyrighted work.  Factual versus creative.  There is less protection for factual [non-fiction] works.  But Boldly copied a creative and expressive work.  Therefore, Go is entitled to more protection.

(3) The amount [percentage] and substantiality [core features] of the portion used in relation to the copyrighted work as a whole.

Percentage: ComicMix’s copying was considerable, including 14 of Go’s 24 pages, close to 60% of the book. ComicMix’s verbatim copying of the original drawings also weighs against fair use.

Core features: The qualitative analysis often asks if the copyist took the “heart,” the most valuable and pertinent portion of the work.  The court found that ComicMix copied the substance or heart of Dr. Seuss's style of writing and artwork.

(4) The extent of market harm caused by the copying, whether the copying would result in a substantially adverse impact on the potential market for the original and derivative works.

ComicMix intentionally targeted and aimed to capitalize on the same graduation market as Go. The planned release date for the first publication of Boldly was scheduled to launch in time for school graduations.

Seuss has already vetted and authorized multiple derivatives of Go.  Therefore, targeting the same market without permission from Seuss harmed the market for the original and authorized derivative works.

The court ruled that the ComicMix infringed on Seuss's copyrighted work.

Do you agree with the court's conclusion?  Why or why not?