USA – CALIFORNIA Trends and Developments Contributed by: Rey Barceló, Barceló, Harrison & Walker, LLP
a takedown, suspension or delisting can be immedi - ate. Platform decisions also shape litigation posture: if a party wins reinstatement, settlement leverage changes; if a party loses access, the pressure to seek emergency relief increases. Clients should treat platform submissions as a form of mini-litigation. The quality of the record matters, and the submissions must be understandable to non- lawyer reviewers. A clear ownership packet, concise infringement narrative and well-organised exhibits often matter more than the sophistication of legal citations. Online Contracting: The Continuing Decline of “Browsewrap” California’s e-commerce environment is also shaped by online contract formation and arbitration enforce - ability. In 2025, the Ninth Circuit continued to empha - sise that users must receive reasonably conspicuous notice of terms and must unambiguously manifest assent. Cases such as Godun v JustAnswer (9th Cir. April 2025) underscore the Ninth Circuit’s continued scrutiny of online sign-up and payment flows where the terms are presented only by hyperlink and the interface does not clearly tell users that clicking the button will bind them to those terms. For clients, the takeaway is operational. If arbitration and terms are part of a risk-management strategy, the checkout and sign-up flows must be designed for enforceability. Clear language near the action button (“By clicking Pay Now, you agree to the Terms of Ser - vice”) and a conspicuous hyperlink remain the most defensible approach. Practical Takeaways for 2026 For AI developers and deployers: • audit provenance and keep an evidentiary record that you can produce in discovery; • separate use cases in policy and practice: training, fine-tuning, evaluation, and general library reten - tion;
• align marketing statements with reality, especially claims about ethical sourcing and commercial safety; and • prepare for market-harm arguments by under - standing where your product may substitute for human-created works. For creators and rights holders: • build market evidence early, especially if the theory is indirect substitution or market dilution; • focus on concrete conduct that courts can remedy: unlawful acquisition mechanics, retention, and distribution; and • consider targeted relief and operational commit - ments where broad injunctions are unlikely on an early record. For brands and e-commerce operators: • treat product and feature naming as a clearance issue, not a branding exercise; • review comparative advertising for implied equiva - lence and substantiation; and • develop platform-ready enforcement and defence packets, because platform decisions often set the litigation posture. Conclusion California’s 2025 IP landscape reflects a shift from speculative debates to operational scrutiny. Courts and platforms increasingly expect proof about data sourcing, market effects, and the realities of how products reach consumers. For clients, that means legal risk is now tied to governance, documentation, and process – often long before any complaint is filed. The unifying theme is operational readiness. The strongest positions in 2026 may well belong to par - ties who can demonstrate a coherent provenance story, develop credible market evidence, and man - age platform disputes with the same discipline applied to court filings. Those who treat these disputes as abstract policy debates may find that the real deci - sions are being made elsewhere, faster, and with higher immediate commercial stakes.
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