Will Section 230 and DMCA carry over to the Metaverse?

Wilson Sonsini provides comprehensive and cutting-edge legal services for innovators, technology pioneers and disruptors. As part of our focus on emerging technologies, our attorneys will publish a series on the application and adaptation of existing law in the Metaverse throughout 2022. This is the third article in our Metaverse series. Earlier warnings and notices include Antitrust: Into the Metaverse and Heading to the Metaverse? Be “The One” to minimize the risk of money laundering.

In recent months, many tech companies have hinted that the “Metaverse” is the next big thing. Proponents claim that the Metaverse will be far more immersive and all-encompassing than traditional web interfaces.1 As with traditional web-based services, User Generated Content is likely to be hosted by or organized by service providers. If the metaverse becomes the dominant method of communication, these metaverse service providers could become even more prominent brokers of content than existing web platforms. The question then is how?

Two of the most notable pieces of legislation regulating the Internet — Section 230 of the Communications Decency Act (Section 230) and the Digital Millennium Copyright Act (DMCA) — were designed for, and have been widely applied to, web-based intermediaries such as search engines and social media networks and online journals . Because the Metaverse is still a concept rather than a product, case law applying Section 230 and the DMCA is scarce. However, if a dispute arises, it is likely that both teachings hold as strong in the metaverse as they do on the internet.

Section 230

The most frequently accessed portion of Section 230 is Section 230(c)(1): “No provider or user of an interactive computer service shall be treated as a publisher or speaker of information provided by another information content provider.” This immunity is so influential that she’s been dubbed the “twenty-six words that created the internet.”2

Under this provision, providers of services will generally not be held liable for claims aimed at treating the providers as if they were the publishers of third-party content. Courts have consistently held that Section 230(c)(1) grants broad immunity regardless of how a plaintiff formulates their claims, whether the service provider is notified of alleged problems with the content, and the service provider’s motivation for hosting or the Providing Access to Content. Where immunity applies, service providers can invoke it to obtain dismissal at the earliest stage of a case, thereby avoiding costly litigation.3

There are three elements to a Section 230 defense of immunity: 1) the defendant must be a “provider…of an interactive computer service”; 2) the content in question should be “provided by another information content provider” (ie a third party); and 3) the claim under consideration should seek to treat the interactive computer service provider as the “publisher or speaker” of that third-party content.4

It is likely that all three of these elements will apply with equal force to user-created content in the Metaverse. For example, a user could create a defamatory shirt that their avatar could wear when displayed to other users in the vendor’s metaverse. Section 230 would immunize the provider (but not the user who designed the shirt) from a defamation lawsuit because the provider provides an interactive computer service that third-party users generate the content, and the hypothetical claim would treat the provider as the publisher of the shirt.

DMCA

The DMCA provides online service providers with several safe havens from copyright infringement for i) content stored at the direction of a user (ie, user-generated content); ii) system caching; or iii) tools for finding information.5

To qualify for such safe havens, a defendant must be a service provider, “must establish a “repeat infringer” policy to facilitate termination of infringing accounts,” and “may use “standard technical measures” that “may be used by copyright owners.” , do not hinder”. identify or protect copyrighted works.'”6 In addition, the online service provider must also register an online account with the copyright office, among other measures, and promptly log infringing matters upon becoming aware or aware of the matter.7

Cases affecting the game Second Lifewhich many see as a precursor to the Metaverse currently being envisaged,8th show that DMCA rules that apply to websites and existing service providers should apply with equal force to the Metaverse. The most notable case of this kind was a tangled dispute over the copyrightability of a script used to create virtual animals Second Life. Ozimals Inc. filed a DMCA takedown notice Second Life Provider, Linden Research, alleges that Amaretto Ranch’s virtual horses infringed on Ozimals copyright of the script. In response to the removal notice, Amaretto sued, claiming that the removal of Ozimals was an abuse of the DMCA. The court concluded that Ozimals did not have exclusive rights to the script. In particular, the court never questioned the applicability of the DMCA to the virtual horses.

In another court case FireSabre Consulting LLC v. Sheehythe court found that Linden had removed allegedly infringing content after the plaintiff filed DMCA takedown notices.9

Wilson Sonsini has extensive experience litigating Section 230 and DMCA cases and advising clients on Section 230 DMCA issues. If you have any questions about Section 230 or the DMCA generally, please contact members of the Firm’s Internet Strategy and Litigation Practice. For more information on any Metaverse-related issue, please do not hesitate to contact one of the firm’s attorneys electronic gaming Group.

Ariel Friedman and brian levy contributed to the creation of this guide.


[1] See egAndrew Hayward, What is the metaverse? The immersive, NFT-powered internet of the futureDecrypt.io (February 17, 2022), https://decrypt.co/resources/what-is-the-metaverse-immersive-nft-virtual-world.

[2] See egjeff koseff, The 26 words that created the internet (2019).

[3] See Lauren Gallo White and Amit Q Gressel, Section 230 Implementing Order to Strengthen Regulatory Examination of Online ServicesWilson Sonsini Goodrich & Rosati (June 3, 2020), https://www.wsgr.com/en/insights/executive-order-directed-to-section-230-to-increase-regulatory-scrutiny-of-online – services.html.

[4] 47 USC § 230(c)(1); match, e.g, Universal Commc’ns Sys. against Lycos, Inc.478 F.3d 413 (1st Circle 2007).

[5] Brian M. Willen and Lauren Gallo White, Court Allows First Amendment Copyright Act Challenge Wilson Sonsini Goodrich & Rosati (July 8, 2019), https://www.wsgr.com/en/insights/after-three-year-wait-court-allows-first-amendment-challenge-to-copyright-law- continue.html.

[6] Obodai v Demand Media, Inc., No. 11 Civ. 2503 (PKC), 2012 US Dist. LEXIS 83109, at *7-8 (SDNY June 13, 2012).

[7] 17 U.S.C. § 512.

[8] See egtyler wilde, The creator of Second Life has a lot to say about all of these new “metaverses.”, PCGamer (April 1, 2022), https://www.pcgamer.com/second-life-metaverse-interview/ (“Second Life[ is] arguably the closest thing to the metaverses first described by science fiction novels: a 3D user-created world where residents take on custom avatars, socialize, and conduct real business.

[9] FireSabre Consulting LLC v. Sheehy, No. 11-CV-4719 (CS), 2013 US Dist. LEXIS 139550, at *18 (SDNY September 26, 2013) (“[I]It is undisputed that Plaintiff entered Second Life and removed content after August 1, 2008, and that content was removed by Linden in response to Plaintiff’s DMCA takedown request. . . . . ).

Comments are closed.