74 Am. U. L. Rev. F. 181 (2024).

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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.

* Senior Staff, American University Law Review, Volume 73; J.D., American University Washington College of Law, 2024; B.A. Political Science, University of Michigan, 2020. Thank you to the ABA National Appellate Advocacy Competition for sparking my interest in this subject and to my Moot Court team—Reed Widdoes, Sabrina March, and Kile Suiter—for delving into it with me. I am also grateful for Professor Elizabeth Beske’s guidance and support. Thank you to the American University Law Review staffers for their thoughtful feedback and hard work editing this piece. Most importantly, thank you to my family and friends for listening to me talk about Section 230 for months on end and encouraging me to turn my passion into this Note.