Antitrust law, like patent law, is “aimed at encouraging innovation, industry and competition.” Some economists reason that the prospect of gaining monopoly power, and reaping some monopoly profits, is a critical source of incentive to innovate, invest, and consequently develop new products and services that confer value on society. Still, for years, the United States government has been trying to rein in “Big Tech,” pursuing some of the largest and most powerful companies on the Internet for allegedly gaining illegal monopoly power. Recently, the Federal Trade Commission (FTC) and Department of Justice (DOJ) filed suits alleging illegal monopolization against large technology companies such as Google, Amazon, and Meta. This paper will analyze the ongoing FTC v. Meta (originally, FTC v. Facebook) case and address how large technology companies can develop new cloud-based services designed for interoperability while staying competitive and adhering to antitrust laws. The parent company of Facebook is known as “Meta Platforms,” after its name was changed, to supposedly signal a strategic shift toward providing metaverse-related services (e.g., virtual reality services, augmented reality services). However, for consistency with the name “Facebook” in the initial court filing of FTC v. Facebook, “Meta Platforms” and its shorthand “Meta” are referred to as “Facebook” throughout this paper.

The influencer marketing business is predicted to grow to a $24 billion industry by the end of 2024. As the name suggests, influencers have a substantial effect on consumers. While the federal government has attempted to regulate the influencer business, the efficacy of these regulations is up for debate. The relationship between brands and influencers has gone largely unregulated and unenforced until recently. This gap in enforcement has emboldened both the brands and the individual influencers. False endorsements and trademark and copyright infringements occur daily, and the FTC, SEC, and intellectual property rights holders have started to notice.

Businesses must understand the potential direct and indirect liability they face when working with influencers, draft their contractual agreements accordingly, and implement a heightened review of sponsored influencer content. Influencers must understand regulations and review brand deals carefully to ensure the agreements comply with current laws or regulations. Lastly, as the lines between personal posts and sponsored content become increasingly blurred, it begs the question of whether influencers exceed their rights under the fair use doctrine.

This paper is organized in three parts. Part one introduces the idea of influencer marketing, provides definitions for classifying types of influencers, and explains the influencer marketing business. Part two reviews the different intellectual property ownership and liabilities issues that both influencers and brands encounter. Finally, part three offers two proposals for how to better regulate and enforce regulations on influencer marketing to reduce consumer harm and strengthen IP rights. The proposition is two-fold: (1) the burden to ensure content meets minimum legal requirements should be placed on the brands rather than individual influencers, and (2) a commercial purpose, for the purposes of the fair use analysis, can be found once an influencer has reached the level of a brand using a totality of the circumstances analysis.

Under Section 271 of the Delaware General Corporation Law (“DGCL”), “[e]very corporation may . . . sell, lease or exchange all or substantially all of its property and assets . . . when and as authorized by a resolution adopted by the holders of a majority of the outstanding stock of the corporation.” After the Delaware Supreme Court’s ruling in Stream TV Networks, Inc. v. SeeCubic, Inc., Section 271 probably applies to privately structured foreclosure transactions. Consequently, controlling shareholders will be able to use their authority under Section 271 to stop private foreclosure transactions and force their corporation into bankruptcy. This Note argues the Delaware General Assembly should amend Section 271 to allow directors of insolvent corporations to sell all or substantially all of the corporation’s assets without majority shareholder approval, because doing so will allow Delaware to more effectively carry out its goals.