Hot Topics In Social Media Law - SMX East 2012 Presentation

Current HOT TOPICS in Internet / Social Media Law

David Mink, [email protected]

@dmmink

mailto:[email protected]

Current HOT TOPICS in Internet/Social Media Law - @dmmink

First Things First

• There are MANY legal issues - This presentation will focus on a few of the current LEGAL HOT TOPICS related to Social Media and its use in business

• Avalaunch advocates the use of Social Media and encourages people NOT to be scared of using it

• Yes, I am an Attorney -- but this is no way to be taken as legal advice in ANY way and is ONLY informational

Current State of SM and Legal Cases• As of the end of 2011, there have been 647 “Social Media”

lawsuits that have settled in court– MySpace 326– Facebook 262– Twitter 49– LinkedIn 37

• Remember…this does not include those settled out of court (Typically, 2-3% of cases go to trial)


DON’T BE ALARMED!!

• 1st Step is educating yourself (or letting someone educate you) about the legal issues

• AVALAUNCH is here to help you! – Education Seminars– Working with Key Staff– Social Media Policies and Employee Contracts

• So let’s move forward…


BEFORE WE CHARGE AHEAD…

• AGENCY LAW (Boooooorrrring, BUT Important!!!)– Do you want ANY tweet/post by ANY employee to be

viewed as your business’s message?

PRINCIPAL AGENT 3rd PARTY (Your Business) (Employee/Contractor) (Your Customers)


BEFORE WE CHARGE AHEAD…

• AGENCY LAW (Boooooorrrring, BUT Important!!!)– Important to know what your Employees/Contractors

CAN and CANNOT do with Social Media in your business» Social Media Policy (Do you have one? Updated?)

» Employee/Contractor Contracts (Do E/C’s know boundaries?)

» Educate Employees (Do Employees know about Policy? Frequency?)


INTELLECTUAL PROPERTY TRAPS

• IP = Overarching Legal Term “Creations of the Mind”• With Social Media, it is so easy to “cut/paste” or “share”• Most companies are happy about the publicity, BUT when

you use their IP (i.e. pictures, videos, logos, slogans, etc.)

to promote your business….NOT GOOD


INTELLECTUAL PROPERTY/AGENCY - Case Study

• Google Music, “Mr. Brainwash”, and Jimi Hendrix

(Jim Marshall’s Original) (Google/Thierry Guetta’s Art)


INTELLECTUAL PROPERTY/AGENCY - Case Study

• Jim Marshall v. Thierry Guetta & Google» Google hired Guetta for Google Music art» Guetta’s Defense: Google "knew or should have known

[the art pieces] were infringing works” (It’s Your Fault…not mine!)

» It’s a question of “contributory liability” - RULE: "an actor may be contributorily liable for intentionally encouraging direct infringement if the actor knowingly takes steps that are substantially certain to result in such direct infringement."

See: http://www.hollywoodreporter.com/thr-esq/google-jim-marshall-lawsuit-music-store-napster-371543


INTELLECTUAL PROPERTY - Case Study

• WHO OWNS YOUR TWITTER ACCOUNTS?• Phonedog Media v. Noah Kravitz

» Phonedog hired Kravitz for SM marketing» Kravitz attracted 17,000 followers as @Phonedog_Noah» Left Phonedog and changed to @NoahKravitz» Phonedog currently battling in court for account rights


INTELLECTUAL PROPERTY - Case Study

• Phonedog Media v. Noah Kravitz• Lessons Learned/Best Practices:

» Be specific in your Social Media Policy and Employee Contracts about who owns your social media content (i.e. profiles, access info, content, followers, etc.)

» Outline clear distinctions between professional and personal accounts

» Review Social Media policies on a regular basis


INTELLECTUAL PROPERTY POLICIES• WHAT ARE YOU SIGNING UP FOR?• Facebook’s IP Policy =

Facebook respects the IP rights of others and is committed to helping 3rd protect their rights. Our Statement of Rights and Responsibilities prohibits users from posting content that violates another party's IP…You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition: For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. If we remove your content for infringing someone else's copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal. If you repeatedly infringe other people's intellectual property rights, we will disable your account when appropriate.


INTELLECTUAL PROPERTY POLICIES

• Twitter’s IP Policy =Twitter respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us….

We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Twitter will also terminate a user’s account if the user is determined to be a repeat infringer.

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).


INTELLECTUAL PROPERTY POLICIES• Pinterest’s IP Policy• Pinterest recently revised Terms relating to IP infringement.

»There is no "applied express consent that all pinners who pinned images made the legal representation that he or she explicitly owned the copyrighted material.” (What does this mean for you?)

• However, this still doesn't address the liability issue for pinners as indemnification clause stays the same --

»"You agree to indemnify and hold harmless Pinterest, and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees" ... related to copyright breaches.”


INTELLECTUAL PROPERTY POLICIES• Pinterest’s IP Policy• Lessons Learned/Best Practices:

• If you own IP, you have to decide if the Pinterest “publicity” is good for your business–If YES, you can take advantage of Pinterest’s “opt-out” option and provide pinners an “explicit license grant” so brand advocacy can be achieved

• If you are using other’s IP, you should have a company plan/policy for checking what is “safe” for repinning and what should be avoided

•NO CASE LAW yet…


EMPLOYER / EMPLOYEE SM PRIVACY

• Privacy issues with Social Media are becoming prevalent in Employer and Employee relationships

– Can an Employer fire an Employee based on a Facebook “like”? – Is it legal for Employers to require their Employees to provide

login/passwords for access to personal Facebook accounts?


EMPLOYER / EMPLOYEE PRIVACY - Case Study

• Bland v. Sherrif B.J. Roberts » Wrongful termination suit -- Roberts fired 6 employees for clicking “like” on his campaign opponent, Jim Adams’, Facebook page

» The employees filed a law suit claiming that a “like” was Constitutionally protected speech

» Judge stated:• "Simply liking a Facebook page is…not the kind of substantive statement

that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter's posts from one click of a button on Adams' Facebook page."


EMPLOYER / EMPLOYEE PRIVACY - Case Study

• Is it legal for Employers to require their Employees to provide login/passwords for access to personal Facebook accounts?» As of this year, 3 States have passed laws prohibiting employers from doing this:• Maryland / Delaware / Illinois

» Many other States are starting to look at this issue» Congress is also investigating this Employer practice

• KNOW THE LAW IN YOUR STATE


FINAL THOUGHTS…

• Educate yourself and your company on the legal risks• If you don’t have an Internet / Social Media Policy…GET ONE!

– Prepare, plan, and continually update a Social Media Policy for your business.

• Don’t be overly restrictive in using Social Media for your business (there’s a reason “everybody’s doing it”)….Use Common Sense!!!

• The Yeti can help you!!!


THANK YOU!!David Mink, CEO

[email protected]@dmmink

mailto:[email protected]

Hot Topics In Social Media Law - SMX East 2012 Presentation

Technology

Transcript of Hot Topics In Social Media Law - SMX East 2012 Presentation