How to Legally Survive and Prosper in Social Media By Andrew Berger, Esq.

For the Copyright Society’s Social Networking Program

November 8, 2010

The Internet Never Forgets

Social media is a Social media is a friend: friend: It allows you to reach It allows you to reach

a global audience with a global audience with the click of a mousethe click of a mouse

You can easily monitor You can easily monitor the marketplace/your the marketplace/your competitorscompetitors

You can use it for You can use it for unexpected other unexpected other purposespurposes

But social media may But social media may also be your enemyalso be your enemy

What You Post May Hurt You

Social media posts Social media posts may be used may be used against you by:against you by: adversaries in adversaries in

litigationlitigation debt collectorsdebt collectors search engines and search engines and

your own social your own social media sitesmedia sites

the FBIthe FBI potential employerspotential employers

Other Risks Arising From the Use of Social Media

Your posts may also expose you to traditional forms of liability: libel, breach of contract, fraud, etc.

The Take Away From All This

Whatever you say can’t be reeled back in

The internet is not anonymous

So be careful…..

Responding to a Responding to a Cyber Attack Cyber Attack

Is the attack directed at your product or your mark

If your product, the attack may be difficult to ignore

Turn the attack into a positive “The customer has a

point” or “we are changing our polices”

The Traditional Response The Traditional Response to Attacks Directed At Your to Attacks Directed At Your

Brand or MarkBrand or Mark Cease and

desist letter followed by a law suit

The Traditional Approach Is Still Followed By Some Brands on the Internet

Facebook v. Teachbook

eBay v. Perfumebay

Groupon v. Groupocity

But That Approach Has Special Risks In the Social

Media Context Recipient of a

cease/desist letter may post it

Along with an angry response

Some Creative Responses Focus on site’s terms

of service: are you dealing with an intent to mislead, a news feed, a fan site or a commentary

Obtain vanity URL sites before others grab them

If you’re releasing a new product create two Twitter accounts: in the name of the company and product

Other Non-Traditional Approaches

Agree to the infringer’s continued use of mark on the site under controlled circumstances

Require the infringing site to post a disclaimer

Partner with fan site; Coke did and the site now has 3.3 million fans

Offer the infringer reasonable time to migrate or contribute to infringer’s cost of changing the site

A Few Items For Your Social Media Policy

It should state: The company owns

electronic data sent or received on the company computer network none of which is private

Employees must identify their company association when commenting on its products

Employees may be discharged for disparaging the company, co-workers or customers on social media

Questions?

Contact Andrew Berger at (212) 702-3167 or berger@thshlaw.com.

Also visit www.ipinbrief.com