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Journal of Intellectual Property Law

Abstract

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these two cases, noting that the success of a products liability theory in circumventing the statute highlights the commodified state of today’s internet. Considering this difference between early and current online landscapes, Section 230’s conception of the internet is dated and problematic. After reaching this conclusion, the Note synthesizes intellectual property principles and Section 230’s parallel policy aims. The Note finally proposes that IP methods on a broad level could prove helpful in a rethinking of Section 230 for a modern and complex online world.

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