Article · Technology

Section 230, the IP Carve-Out, and Platform Liability for User-Generated Infringement

Type
Article
Jurisdiction
National
Date
2026-01-21
Topic
Technology

Section 230 of the Communications Decency Act shields online platforms from being treated as the publisher of what their users say, but its own text, 47 U.S.C. § 230(e)(2), lifts that shield for "any law pertaining to intellectual property." This article maps the two-track world the exception creates: copyright claims run through the DMCA's Section 512 notice-and-takedown safe harbor, while trademark and other IP claims are fought on the merits under common-law doctrines like contributory infringement. It brings the doctrine current through the Supreme Court's 2026 decision in Cox Communications v. Sony Music Entertainment, which replaced the fifty-year-old "knowledge plus material contribution" test with an intent-and-tailoring standard, alongside Moody v. NetChoice, Gonzalez, Taamneh, Anderson v. TikTok, and the three-way circuit split over whether the carve-out reaches state law. It explains why reform aimed entirely at non-IP harms would still reshape infringement enforcement through the shared machinery of content moderation, and why the burden falls hardest on small platforms and remix creators. A comparison with the EU's Digital Services Act and a running hypothetical tie the doctrine to the concrete decisions platforms, rights holders, and creators actually face.

Section 230, the IP Carve-Out, and Platform Liability for User-Generated Infringement

Technology > Internet | Published 21 January 2026 - Updated 8 February 2026 | UpLaw - uplaw.us

Section 230 is famous for the shield it raises over user content, but its own text never raised that shield over intellectual property. Understanding where the shield ends, where the DMCA begins, and where trademark law is left to fend for itself is the whole game for anyone hosting, policing, or posting online.

The full text of this document is available to Executive subscribers and above. See plans.