Case: 20-2725 Document: 73 Page: 1 Date Filed: 09/23/2021
`
`PRECEDENTIAL
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`____________
`
`Nos. 20-2725 & 2885
`____________
`
`KAREN HEPP,
`Appellant in 20-2725
`
`v.
`
`FACEBOOK; IMGUR INC; REDDIT INC; GIPHY INC,
`WGCZ S.R.O.
`
`
`Imgur Inc.; Reddit Inc., Appellants in 20-2885
`
`____________
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`(D.C. No. 2-19-cv-04034)
`District Judge: Honorable John M. Younge
`____________
`
`
`
`Argued on June 2, 2021
`
`Before: HARDIMAN, PHIPPS, and COWEN, Circuit
`Judges.
`
`
`
`
`
`
`PRECEDENTIAL
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`____________
`
`Nos. 20-2725 & 2885
`____________
`
`KAREN HEPP,
`Appellant in 20-2725
`
`v.
`
`FACEBOOK; IMGUR INC; REDDIT INC; GIPHY INC,
`WGCZ S.R.O.
`
`
`Imgur Inc.; Reddit Inc., Appellants in 20-2885
`
`____________
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`(D.C. No. 2-19-cv-04034)
`District Judge: Honorable John M. Younge
`____________
`
`
`
`Argued on June 2, 2021
`
`Before: HARDIMAN, PHIPPS, and COWEN, Circuit
`Judges.
`
`
`
`
`
`
`Case: 20-2725 Document: 73 Page: 2 Date Filed: 09/23/2021
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`(Filed: September 23, 2021)
`
`
`Samuel Fineman [Argued]
`Cohen Fineman
`199 Marlton Pike East, Suite 4
`Cherry Hill, NJ 08003
`
`Counsel for Karen Hepp
`
`
`Joseph C. Gratz
`Vera Ranieri [Argued]
`Aditya V. Kamdar
`Durie Tangri
`217 Leidesdorff Street
`San Francisco, CA 94111
`
`Counsel for Imgur Inc. and Reddit, Inc.
`
`
`Dennis L. Wilson
`Kilpatrick Townsend & Stockton
`1801 Century Park East, Suite 2300
`Los Angeles California 90067
`
`Tywanda Lord
`Kilpatrick Townsend & Stockton
`1100 Peachtree Street, Suite 2800
`Atlanta, Georgia 30309
`
`Barry L. Cohen
`Royer Cooper Cohen Braunfeld
`100 N. 18th Street, Suite 710
`Philadelphia, Pennsylvania 19103
`
`Craig S. Primis [Argued]
`
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`Case: 20-2725 Document: 73 Page: 3 Date Filed: 09/23/2021
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`Kirkland & Ellis
`1301 Pennsylvania Avenue, N.W.
`Washington, DC 20004
`
`Counsel for Facebook, Inc.
`
`
`Michael T. Zeller [Argued]
`Quinn Emanuel Urquhart & Sullivan
`865 S. Figueroa St. 10th Floor
`Los Angeles, California 90017
`
`Samuel W. Silver
`Bruce P. Merenstein
`Schnader Harrison Segal & Lewis
`1600 Market Street, Suite 3600
`Philadelphia, PA 19103
`
`Counsel for WGCZ SRO
`
`
`Duncan Crabtree-Ireland
`Danielle S. Van Lier
`SAG-AFTRA
`5757 Wilshire Blvd., 7th Floor
`Los Angeles, CA 90036
`
`Ira L. Gottlieb
`Bush Gottlieb, A Law Corporation
`801 North Brand Boulevard, Suite 950
`Glendale, CA 91203-1260
`
`Counsel for Amicus SAG-AFTRA, in support of Karen
`Hepp
`
`
`Kit Walsh
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`Coryanne McSherry
`Electronic Frontier Foundation
`815 Eddy Street
`San Francisco, CA 94109
`
`Counsel for Amici Electronic Frontier Foundation, the
`Copia Institute,
`iFixit, Engine, and Center
`for
`Democracy and Technology, in support of Imgur, Inc.,
`Reddit, Inc., Facebook, Giphy, Inc., and WGCZ SRO
`
`___________
`
`OPINION OF THE COURT
`____________
`
`
`HARDIMAN, Circuit Judge.
`
`Section 230 of the Communications Decency Act of
`1996 bars many claims against internet service providers. See
`47 U.S.C. § 230(c). But Section 230 does not bar intellectual
`property claims. § 230(e)(2). The question presented in this
`appeal is whether a Philadelphia newscaster’s state-law claims
`for violating her right of publicity are precluded by § 230.
`Because those claims are encompassed within the intellectual
`property carve-out, § 230(e)(2), we hold they are not
`precluded.
`
`I
`
`Appellant Karen Hepp has worked in the news industry
`her entire adult life. Presently, she hosts FOX 29’s Good Day
`Philadelphia. As is often the case for television personalities,
`Hepp’s professional success as a newscaster depends in part on
`her reputation and social media following. She has built an
`“excellent reputation as a moral and upstanding community
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`leader” and has amassed a sizeable social media following. See
`App. 59–61. So Hepp’s endorsement can be valuable.
`Naturally, that value depends on her ability to control the use
`of her likeness.
`
`In 2018, Hepp was told by coworkers that her
`photograph was making its way around the internet. The image
`depicts Hepp in a convenience store, smiling in the center of
`the frame’s foreground. But the photograph was taken without
`Hepp’s knowledge or consent. She knows neither the
`convenience store’s location nor how the image was posted
`online. And she never authorized the image to be used in online
`advertisements for erectile dysfunction and dating websites.
`
`Hepp’s allegations included two sets of posts featuring
`her photograph. She alleged each violated her right of publicity
`under Pennsylvania law.
`
`The first post—which was an advertisement to a dating
`app, FirstMet—appeared on Facebook, which is one of the
`world’s largest social media companies. The advertisement
`used Hepp’s image to promote its dating service. And it
`encouraged Facebook users to “meet and chat with single
`women near you.”
`
`Second, a Reddit thread linked to an Imgur post of the
`photo. Reddit is an online forum that allows users to create
`communities organized
`around
`topics. Within
`each
`community, users can start conversations by making an initial
`post. Other users can note their approval by “upvoting” the
`See
`generally
`post.
`https://www.redditinc.com/;
`https://www.reddithelp.com/hc/en-us/categories/200073949-
`Reddit-101. Imgur is a photo sharing website where users share
`digital images. See generally https://imgurinc.com/. In this
`
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`case, someone uploaded Hepp’s image to Imgur. Then a Reddit
`user posted a link to the Imgur post. The Reddit post spurred
`indecent user commentary and was upvoted over one hundred
`times.
`
`Hepp sued Facebook, Reddit, and Imgur. The
`complaint, as amended, alleges two state-law claims: one for
`violating Pennsylvania’s right of publicity statute, 42 PA.
`CONS. STAT. § 8316, and the other for violating its common
`law. The companies each moved to dismiss the amended
`complaint. The District Court dismissed Hepp’s case with
`prejudice, holding all three companies were entitled to § 230
`immunity. The Court held the § 230(e)(2) limitation—which
`prevents § 230 from affecting “any law pertaining to
`intellectual property”—did not apply to violations of state law.
`
`Hepp appealed. And Imgur and Reddit filed a joint
`cross-appeal to challenge personal jurisdiction.
`
`II
`
`The District Court, exercising diversity jurisdiction
`under 28 U.S.C. § 1332, dismissed Hepp’s amended complaint
`with prejudice. So our jurisdiction lies under § 1291, and our
`review is plenary. See Martinez v. UPMC Susquehanna,
`986 F.3d 261, 265 (3d Cir. 2021).
`
`III
`
`jurisdiction. Facebook
`We begin with personal
`conceded it was amenable to suit in the District Court. But
`Reddit and Imgur claimed the District Court lacked personal
`jurisdiction over them. We agree. Applying the Supreme
`Court’s decision in Ford Motor Co. v. Montana Eighth Judicial
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`District Court, 141 S. Ct. 1017 (2021), we hold the District
`Court did not have personal jurisdiction over Reddit or Imgur.
`
`Personal jurisdiction can be general or specific. General
`jurisdiction extends to all claims against a defendant and exists
`where a company is “essentially at home.” Id. at 1024. Because
`none of the companies are at home in Pennsylvania, we turn to
`the Supreme Court’s specific jurisdiction doctrine, which
`extends only to particular claims. Id.
`
`There are two prongs to the specific jurisdiction
`analysis. First, there must be purposeful availment: minimum
`contacts with the forum state that show the defendant took a
`deliberate act reaching out to do business in that state. Id. at
`1024–25. Second, the contacts must give rise to—or relate to—
`plaintiff’s claims. Id. at 1025. Imgur and Reddit concede that
`the first prong is satisfied here. Oral Argument at 47:28–47:34.
`So we focus on the second.
`
`For the contacts to satisfy the second prong, there must
`be “a strong ‘relationship among the defendant, the forum, and
`the litigation.’” Id. at 1028 (quoting Helicopteros Nacionales
`de Colombia, S. A. v. Hall, 466 U.S. 408, 414 (1984)). Here,
`that connection is too weak.
`
`Consider the strong connection in Ford Motor. That
`case involved products liability suits stemming from car
`accidents in Minnesota and Montana. Id. at 1022. The contacts
`between those states and the company were legion. By “every
`means imaginable” Ford urged state residents to buy the types
`of cars in the accidents. Id. at 1028. The company
`“systematically served a market in Montana and Minnesota for
`the very vehicles that the plaintiffs allege malfunctioned and
`injured them in those States.” Id. So there was the requisite
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`strong relationship among the defendant, the forum, and the
`litigation. Id.
`
`In contrast, Hepp’s allegations focus on how Imgur and
`Reddit purposefully availed themselves of the Pennsylvania
`market. But those contacts do not relate to this litigation. Hepp
`alleges Imgur and Reddit targeted their advertising business to
`Pennsylvania. And she alleges Imgur has an online
`merchandise store that sells products to Pennsylvanians.
`Finally, she points to Reddit’s premium membership business
`and an online community organized around Philadelphia. But
`none of these contacts forms a strong connection to the
`misappropriation of Hepp’s likeness. Hepp did not allege the
`merchandise featured her photo. Nor did she allege Imgur and
`Reddit used her likeness to sell advertising. Finally, she did not
`claim
`the photo was
`taken, uploaded, or hosted
`in
`Pennsylvania.
`
`to
`the alleged contacts do not relate
`In sum,
`misappropriation, and the alleged misappropriation does not
`relate to any of the contacts. Because Hepp failed to establish
`the strong connection present in Ford Motor, we hold the
`District Court lacked personal jurisdiction over Imgur and
`Reddit.1
`
`
`1 Hepp also named a Czech company, WGCZ, in connection
`with a pornographic website that hosted her image after a user
`posted it to an illicit gallery. The District Court granted
`WGCZ’s motion to dismiss because it did not operate the
`website during the relevant time. Hepp concedes WGCZ did
`not run the pornography website at issue. Oral Argument at
`1:18:50–1:19:05. So there were no relevant contacts to
`
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`IV
`
`With Facebook as the only remaining party to this
`appeal, we consider whether it is immune under § 230.
`
`A
`
`Passed in 1996, Section 230 of the Communications
`Decency Act was intended to promote the internet. See
`47 U.S.C. § 230(b). It specifically sought to preserve “the
`vibrant and competitive free market”—“unfettered by Federal
`or State regulation.” § 230(b)(2). The Act also promoted
`filtering technology and the vigorous enforcement of criminal
`obscenity laws. § 230(b)(5). In essence, Congress fostered a
`largely unregulated free market online while snuffing out
`certain objectionable content.
`
`Section 230(c) strikes the balance. It provides “Good
`Samaritan” protection, which enables “blocking and screening
`of offensive material” as follows:
`
`(1) TREATMENT OF PUBLISHER OR
`SPEAKER. No provider or user of an
`interactive computer service shall be
`treated as the publisher or speaker of
`
`
`establish personal jurisdiction, and the District Court correctly
`held it lacked personal jurisdiction over WGCZ. The District
`Court also concluded § 230 barred Hepp’s claims, so it denied
`her leave to add the appropriate website owner. As explained
`below, we disagree with the District Court about § 230. See
`infra Part IV. So while Hepp’s suit against WGCZ was
`properly dismissed for lack of jurisdiction, we will vacate the
`District Court’s decision denying leave to amend.
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`any information provided by another
`information content provider.
`
`(2) CIVIL LIABILITY. No provider or
`user of an
`interactive computer
`service shall be held liable on account
`of—
`
`(A)
`
`(B)
`
`any action . . . to restrict
`access to . . . objectionable
`. . . [material]; or
`
`any action taken to enable
`. . . the technical means to
`restrict access to material
`described in paragraph [A].
`
`§ 230(c). This provision bars attempts to treat websites as
`publishers or speakers of content posted by others. Id. And it
`encourages companies to host and moderate third-party content
`by immunizing them from certain moderation decisions. Id. In
`other words, it forgoes some publisher liability and paves the
`way for service providers to make their own moderation
`decisions.
`
`Lest the liability provisions in § 230(c) be read too
`broadly, however, the Act also carves out five limitations in
`§ 230(e). Subsection (e) ensures several legal domains remain
`unaffected by § 230(c). Most relevant here, § 230 has “[n]o
`effect on intellectual property.” § 230(e)(2). Indeed, “[n]othing
`in [§ 230] shall be construed to limit or expand any law
`pertaining to intellectual property.” Id. Similarly, § 230(c) does
`not affect federal criminal law, communications privacy law,
`or sex trafficking law. § (e)(1), (4), (5). Among these
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`limitations, state law is mentioned several times. For instance,
`in the communications privacy and sex trafficking domains,
`“similar” or coextensive state laws also fall outside § 230(c)’s
`scope. See § (e)(4), (5). Finally, the Act also provides a general
`state law limitation, stating consistent state laws are not
`affected. See § 230(e)(3). In sum, § 230(e) cabins the reach of
`the Act’s liability provisions.
`
`This appeal turns on whether § 230(c) makes Facebook
`immune or whether § 230(e)(2) places Hepp’s claims outside
`§ 230(c)’s reach. We resolve that issue in two steps. First, we
`consider whether § 230(e)(2) can apply to any state law claims.
`We then turn to whether § 230(e)(2) applies to Hepp’s
`statutory claim.
`
`B
`
`1
`
`In the twenty-five years since the Communications
`Decency Act was passed, there are precious few cases
`interpreting § 230’s intellectual property provision. The first
`noteworthy case is Universal Communication Systems, Inc. v.
`Lycos, Inc., 478 F.3d 413 (1st Cir. 2007). There, a company
`sued internet message board providers alleging that some posts
`contained “false, misleading” content about the company’s
`financial prospects. See id. at 415–16. The suit alleged
`violations of federal law, as well as trade name dilution in
`violation of Florida law. Id. at 417. The First Circuit treated the
`Florida dilution claim separately because “[c]laims based on
`intellectual property laws are not subject to Section 230
`immunity.” Id. at 422–23 (citing 47 U.S.C. § 230(e)(2)). As to
`the merits of the state-law claim, the court reasoned that
`“[t]rademark injury arises from an improper association
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`the mark and [someone else’s] products or
`between
`services”—not from “criticism” leading to reputational harm.
`See id. at 423. Ultimately, the court held “that even though
`Section 230 immunity does not apply, the claim was properly
`dismissed as a matter of [Florida] trademark law” “because of
`the serious First Amendment issues that would be raised by
`allowing [Plaintiff’s] claim.” See id. at 423 & n.7. But that
`decision was necessary only because the court held § 230(e)(2)
`preserved the state law claim.
`
`Soon after the First Circuit announced its decision in
`Lycos, the Ninth Circuit went the other way in Perfect 10, Inc.
`v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007). There, a website
`operator alleged violations of federal law and a state right of
`publicity law. Id. at 1108. The district court dismissed the
`complaint and the Ninth Circuit affirmed, reasoning that
`federal intellectual property’s scope was more established
`compared to state laws. Id. at 1118. And it explained the Act’s
`policy goal—to insulate the internet from regulation—would
`be hindered if federal immunity varied based on state laws. Id.
`In the Ninth Circuit’s view, § 230(e)(2) includes only “federal
`intellectual property.” Id. at 1119 (emphasis added).
`
`Another notable case is Atlantic Recording Corp. v.
`Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009).
`There, record companies brought copyright claims under both
`state and federal law. See id. at 694 & n.5. The district court
`found the statute’s text was clear. Id. at 703. It emphasized that
`Congress specified whether local, state, or federal law applied
`four times in subsection (e): once discussing federal criminal
`law, § (e)(1); twice in the general state law provision, § (e)(3);
`and again in the communications law context, § (e)(4). Id. The
`court held that “if Congress wanted the phrase ‘any law
`pertaining to intellectual property’ to actually mean ‘any
`
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`federal law pertaining to intellectual property,’ it knew how to
`make that clear, but chose not to.” Id. Indeed, when Congress
`added the sex trafficking provision to the limitations in § (e), it
`referenced state laws twice more. See Allow States and
`Victims to Fight Online Sex Trafficking Act of 2017, § 4(a),
`Pub L. No. 115-164, 132 Stat. 1253, 1254 (2018) (adding
`47 U.S.C. § 230(e)(5)).
`
`With those precedents in mind, we turn to the parties’
`arguments.
`
`2
`
`In dismissing Hepp’s amended complaint, the District
`Court adopted the Ninth Circuit’s approach, holding that
`§ 230(e)(2)’s limitation applies only to federal intellectual
`property. Facebook asks us to affirm that holding on three
`bases: the text and structure of § 230(e); the statute’s own
`policy provision, § 230(b); and practical policy reasons.
`
`Facebook’s appeal to text and structure rightly urges us
`to read § 230 as an integrated whole. It suggests § 230(e)
`makes federal limitations the default and includes state laws
`only when specified. In other words, § 230(e)’s limitations are
`“directed to certain federal statutes and include state laws only
`where they are coextensive with federal law.” Facebook Br. 17.
`Because state-law rights of publicity do not mirror an
`analogous federal law, Facebook argues Hepp’s claim is not
`included in § 230(e)(2)’s intellectual property limitation.
`
`Hepp counters that her claims arise under state law
`“pertaining to intellectual property,” so § 230(c) cannot block
`them. And she cites Atlantic Recording as support. We agree
`with Hepp.
`
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`3
`
`In our view, Facebook’s interpretation strays too far
`from the natural reading of § 230(e)(2). We disagree that “any
`law pertaining to intellectual property” should be read to mean
`“any federal law pertaining to intellectual property.” To
`support this “federal” reading, Facebook points to the statute’s
`structure. But the structural evidence it cites cuts both ways.
`Facebook is correct that the explicit references to state law in
`subsection (e) are coextensive with federal laws. But those
`references also suggest that when Congress wanted to cabin the
`interpretation about state law, it knew how to do so—and did
`so explicitly. Because the evidence cuts both ways, the
`structure does not change the natural meaning. So the text and
`structure tell us that § 230(e)(2) can apply to federal and state
`laws that pertain to intellectual property.
`
`Facebook also points to the policy enacted as part of
`§ 230. As the company would have it, “Congress enacted
`Section 230 to avoid subjecting internet service providers to a
`web of inconsistent, ‘fettering’ state regulations like the laws
`governing rights of publicity.” Facebook Br. 20–21. In support
`of this argument, Facebook focuses on § 230(b)(2). That
`provision seeks “to preserve the vibrant and competitive free
`market that presently exists for the Internet and other
`interactive computer services, unfettered by Federal or State
`regulation.” § 230(b)(2). Facebook contends that because
`rights of publicity vary from state to state, increasing those
`protections would require censorship, limit free speech, and
`impair the online marketplace.
`
`Facebook’s premise is right: Congress enacted a pro-
`free-market policy. But its desired conclusion does not
`necessarily follow. Section 230’s policy goals do not erase
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`state intellectual property rights as against internet service
`providers. Facebook errs by downplaying the role of property
`in markets. After all, state property laws—along with contract
`laws—enable “the resulting formation of effective markets.”
`Ford Motor, 141 S. Ct. at 1029. Because state property rights
`can facilitate market exchange, interpreting the § 230(e)(2)
`limitation to include state intellectual property laws tracks
`Congress’s pro-free-market goal. So the enacted policies do
`not require an alternate reading.
`
`Third, Facebook offers policy arguments independent
`of the statute’s text. According to Facebook, our reading would
`increase uncertainty about the precise contours of immunity in
`cases involving state intellectual property law. See Facebook
`Br. 29 (citing Perfect 10, 488 F.3d at 1119 n.5). But policy
`considerations cannot displace the text. For that reason, other
`courts have rejected such considerations, at least implicitly. In
`Lycos, the First Circuit decided the case on state law grounds
`because “Section 230 immunity does not apply.” 478 F.3d at
`423 n.7. And in Atlantic Recording, the district court took a
`similar approach. Well over a decade has passed since those
`cases were decided, yet neither Facebook nor its amici provide
`evidence that the rulings created the disarray they now predict.
`
`Even if we considered policy outside the statute’s text,
`it too could cut the other way. For example, if likeness interests
`are disregarded on the internet, the incentives to build an
`excellent commercial reputation for endorsements may
`diminish. Cf. Zacchini v. Scripps-Howard Broad. Co.,
`433 U.S. 562, 573 (1977) (explaining the economic theory
`underlying the right of publicity). That would cut against the
`statute’s explicit policy objectives because
`information
`provided by promotional advertisements can enhance market
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`efficiency and vibrancy. So these policy arguments do not
`carry the day for Facebook either.
`
`The parties present a clear split of persuasive authority.
`Facebook and its amici offer arguments based on the statute’s
`text and policy considerations. But there are strong textual and
`policy arguments to the contrary. Because we adhere to the
`most natural reading of § 230(e)(2)’s text, we hold that
`§ 230(e)(2) is not limited to federal laws. Simply put, a state
`law can be a “law pertaining to intellectual property,” too.
`
`C
`
`Having held the § 230(e)(2) limitation applies to state
`intellectual property law, we turn to whether Hepp’s statutory
`cause of action against Facebook constitutes such a claim.
`
`1
`
`Facebook argues the right of publicity is rooted in
`privacy. But it acknowledges the right has been categorized as
`“both a ‘privacy right’ . . . and a ‘property right’.” Facebook
`Br. 24–25 (quotation omitted). Amici supporting Facebook
`take a different tack. They argue we should read “any law
`pertaining to intellectual property” to “embrace its traditional
`core”—exclusively federal copyright and patent law. EFF Br.
`8 & n.5 (excluding trademarks). These amici also warn us of
`the “parade of horribles,” EFF Br. 19, that would ensue should
`we adopt Hepp’s interpretation, especially limitations on free
`speech.
`
`For her part, Hepp contends the right to publicity is an
`intellectual property right. See Hepp Br. 11. And she argues
`that she “has dedicated considerable time, effort and money
`
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`into building her brand.” Hepp Br. 17. Her amicus adds that
`state courts have long recognized individuals have property
`interests in their personas. They cite a 1907 case involving the
`legendary Thomas Edison. SAG Br. 19. There, the New Jersey
`court confirmed Edison could enjoin the use of his picture as
`an endorsement for a product he did not sell. See Edison v.
`Edison Polyform Mfg. Co., 67 A. 392, 394 (N.J. Ch. 1907). The
`court reasoned there was no distinction between the intellectual
`property protections afforded a person’s name and trademark-
`like protections for likenesses used on a label. See id.
`
`2
`
`With these arguments in mind, we return to the statute’s
`text. “Nothing in [§ 230] shall be construed to limit or expand
`any law pertaining to intellectual property.” § 230(e)(2). So to
`decide whether Hepp’s statutory claim against Facebook falls
`within § 230’s intellectual property limitation, we must first
`establish whether it arises from a “law pertaining to intellectual
`property.” That requires us to determine the meaning of the
`phrase “intellectual property.” To do so, we turn to several
`sources.
`
`starters, Black’s Law Dictionary defines
`For
`“intellectual property” to include “publicity rights.” See
`Intellectual Property, BLACK’S LAW DICTIONARY (11th ed.
`2019); accord id. (7th ed. 1999). But not every dictionary does.
`For instance, Ballentine’s defines the term as “those property
`rights which result from the physical manifestation of original
`Intellectual Property, BALLENTINE’S LAW
`thought.”
`DICTIONARY (3d ed. 1968). Absent unanimity about the
`meaning of “intellectual property,” we survey dictionary
`definitions. See infra Appendices A and B. See generally
`ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 417
`
`17
`
`
`
`Case: 20-2725 Document: 73 Page: 18 Date Filed: 09/23/2021
`
`(2012) (explaining “comparative weighing of dictionaries is
`often necessary”).
`
`We begin by noting that “intellectual property” is best
`understood as a compound term—not a generic two-word
`phrase—because both legal and lay dictionaries treat it as such.
`See infra Appendices A and B. So we do not combine the
`definitions of “intellectual” and “property” in isolation; we
`interpret the compound term as a unified whole.
`
`Second, legal dictionaries take precedence here. See
`infra Appendix A. Section 230(e) addresses the Act’s impact
`on other laws. Because the term is used in a legal sense, the
`proper definition of “intellectual property” is the term’s
`ordinary legal meaning. See SCALIA & GARNER, supra, at 73.
`
`Our survey of legal dictionaries reveals “intellectual
`property” has a recognized meaning which includes the right
`of publicity. This conclusion
`follows
`from
`several
`observations.
`
`First, two of the legal dictionaries explicitly list the right
`of publicity as an intellectual property right. See infra
`Appendix A (Black’s and McCarthy’s). These dictionaries are
`especially apt. Black’s is renowned, and McCarthy’s directly
`addresses the subject. A third legal dictionary, Bouvier’s,
`provides more support. It sets forth a test that Pennsylvania’s
`right of publicity statute satisfies because the statute grants
`people monopolies in their likenesses. The statute also
`provides for property-like relief, including the ability to obtain
`damages and injunctions against trespassers. Compare 42 PA.
`CONS. STAT. § 8316(a) (allowing for damages and injunctions
`when one’s monopoly over her likeness is infringed), with
`infra Appendix A (Bouvier’s test, requiring the same). In sum,
`
`18
`
`
`
`Case: 20-2725 Document: 73 Page: 19 Date Filed: 09/23/2021
`
`these definitions provide strong evidence that the term
`“intellectual property” includes Pennsylvania’s statutory right
`of publicity.
`
`Along with that explicit evidence, the legal definitions
`provide implicit support as well. For instance, one definition
`does not mention the right of publicity—but it includes
`trademark. See infra Appendix A (Dictionary of Modern Legal
`Usage). And that inclusion implies the right to publicity by
`analogy. Cf. Zacchini, 433 U.S. 562.
`
`In Zacchini, the Supreme Court explained the right of
`publicity is an individual property right that is “closely
`analogous to . . . patent and copyright” because it focuses “on
`the right of the individual to reap the reward of his endeavors
`and [has] little to do with protecting feelings or reputation.” Id.
`at 573. That focus also fosters market function by preventing
`the “unjust enrichment by the theft of goodwill.” See id. at
`575–76. And just as the right is “closely analogous” to patent
`and copyright, so too for trademark. Like the right to publicity,
`secure commercial goodwill. USPTO v.
`trademarks
`Booking.com, 140 S. Ct. 2298, 2302 (2020). Trademarks also
`foster the marketplace because they protect consumers’ ability
`to distinguish between competitors. Id. So the right of publicity
`and trademark are close analogues.2
`
`
`2 For an academic account, see Stacey L. Dogan & Mark A.
`Lemley, What the Right of Publicity Can Learn from
`Trademark Law, 58 STAN. L. REV. 1161, 1164, 1190 (2006)
`(contending trademark law “is by far the closest analogy to the
`right of publicity”).
`
`19
`
`
`
`Case: 20-2725 Document: 73 Page: 20 Date Filed: 09/23/2021
`
`And this analogy has been recognized in the courts for
`over a century. For example, a New Jersey court in Edison
`analogized the right in one’s likeness to trademark. 67 A. at
`393–94. That same year, a federal court granted an injunction
`to stop the “deceptive use of the Emperor Franz Josef’s name
`and portrait” because it falsely implied his endorsement. See
`Von Thodorovich v. Franz Josef Beneficial Ass’n, 154 F. 911,
`913 (C.C.E.D. Pa. 1907). More recently, the Florida Supreme
`Court explained the harm caused by a right to publicity
`violation is that “it associates the individual’s name or . . .
`personality with something else.” Tyne v. Time Warner Ent.
`Co., 901 So. 2d 802, 806 (Fla. 2005) (cleaned up). Because
`trademark and the right to publicity are analogues, the legal
`definition including trademark also supports including the right
`of publicity as “intellectual property.”
`
`Like the legal dictionaries, many lay dictionaries
`explicitly include trademark. See Appendix B. So they too
`favor including the right to publicity within “intellectual
`property.” It is true that a handful of definitions fail to mention
`trademark. See infra Appendix A (Ballentine’s); see also infra
`Appendix B (American Heritage and Merriam Webster). But
`those three dictionaries are a distinct minority compared to the
`majority view that includes the right to publicity either
`explicitly or by analogy. And the statute’s context favors
`adopting the majority view. Dictionary definitions tend to
`“state[] the core meaning of a term,” omitting the “periphery.”
`SCALIA & GARNER, supra, at 418. And here, statutory context
`clarifies we should include the periphery. Section 230(e)(2)
`uses the modifiers “any” and “pertaining to”—“any law
`pertaining to intellectual property.” So not only are core
`intellectual property laws included, but so are laws pertaining
`to the subject. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214,
`
`20
`
`
`
`Case: 20-2725 Document: 73 Page: 21 Date Filed: 09/23/2021
`
`218–19 (2008) (“any”); cf. Morales v. Trans World Airlines,
`Inc., 504 U.S. 374, 383 (1992) (“relating to”). And not some of
`them—any of them. Thus the term’s statutory context confirms
`our holding.
`
`In conclusion, we hold that Hepp’s statutory claim
`against Facebook arises out of a law pertaining to intellectual
`property. For that reason, the § 230(e)(2) limit applies, and
`Facebook is not immune under § 230(c). So we will reverse the
`District Court’s order dismissing Hepp’s amended complaint
`against Facebook with prejudice.
`
`D
`
`We close by emphasizing the narrowness of our
`holding. First, it does not threaten free speech. Hepp’s statutory
`claim against Facebook clarifies the point. She alleges her
`likeness was used to promote a dating service in an
`advertisement. And she claims that misappropriated the effort
`she spent to build a valuable reputation, so it could confuse
`consumers by suggesting she endorses the service. Again, the
`analogy to trademark is striking. Just as a counterfeit item can
`misappropriate a trademark owner’s goodwill, so too might the
`unauthorized use of Hepp’s image in the ad. Further, both
`misappropriations could create consumer confusion and
`undercut efficient incen
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