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Socially Aware Blog

The Law and Business of Social Media

Status Updates

Posted in Status Updates

Search stripped? European regulators have several beefs with Google—the digital giant has been accused of tax avoidance and violations of data protection laws—but right now they’re focused on whether the company, which reportedly controls 90% of the online search market in Europe, is wielding illegal monopolistic power. Based on allegations that Google is manipulating search results to the detriment of its potential competitors, the European Parliament is expected to vote on Dec. 4 on a non-binding resolution to break up Google on the continent.  The parliamentary vote won’t have the force of law, but a vote recommending a Google take-down could influence the European Commission—which does have the power to act—to make demands of the company or to take it to court to force its breakup.  The EU’s top official for digital markets has said that such an outcome is far from inevitable, however.

Toy story. With Black Friday approaching, we’re reminded that, not too long ago, parents, toy manufacturers and retailers had little to go on in seeking to determine what would be the most popular toys over the holiday season. Not so today, thanks to the convergence of big data and social media.  Data analytics companies are delving into the social media universe to identify patterns and look for developing trends. Based on its analysis of hundreds of millions of posts and tweets, one company informs us that the video game “Call of Duty: Advanced Warfighter” will be popular, as will child-friendly versions of adult gadgets like the Vtech Kidizoom Smart Watch and My Friend Cayla.  Another data analytics company says that LeapFrog and Minecraft-related toys will be hot. And all the companies agree that Elsa from the Disney movie Frozen is likely to be as ubiquitous over the winter holidays as she was at Halloween.  So, for those parents who are sick of hearing that Frozen song, just let it go—it’s going to be a long winter for you.

Yik Yak backed. Yik Yak, the messaging app that we recently reported has become a popular means of communicating deeply offensive remarks because of its promise to protect users’ anonymity, has raised $63 million in venture capital in its third round of funding.  As a result, its market valuation is now between $300 million and $400 million.  The backer is Sequoia, the venture capital firm that hit record pay dirt when WhatsApp was sold to Facebook in February of this year. The Yik Yak deal confirms what we’ve been saying here for some time—as consumer privacy concerns continue to grow over traditional social media platforms, there’s a huge demand for new platforms that provide (or at least purport to provide) users with greater anonymity—we’re calling it asocial media.

Mark Your Calendar: Dec. 4th Digital Media Bootcamp for NYC Area Lawyers & Artists

Posted in IP, Online Promotions

The Volunteer Lawyers for the Arts will be presenting an all-day “bootcamp” covering digital media and related legal issues on Thursday, December 4, 2014, at Morrison & Foerster LLP’s New York office. The courses will be directed to both attorneys and artists, and will focus on issues such as online advertising, social media law, interactive media and video games, and current events in digital media. Presenters include Socially Aware contributor Anthony Ramirez of Morrison & Foerster LLP. Attorneys are eligible for up to six CLE credits, and discounted rates are available for artist attendees. To register, please visit http://bit.ly/1y9PTcg.

Status Updates

Posted in Status Updates

Forget me not. Twitter launched just eight years ago with this tweet from company co-founder, Jack Dorsey:








(Not nearly as dramatic as “Mr. Watson—come here—I want to see you”— but I digress.)  Since that inaugural tweet, hundreds of billions of tweets have flowed through Twitter’s network, with 500 million new tweets every day. Yet, consistent with Twitter’s eccentric ways (no message over 140 characters, please), there has never been a way to search this massive treasure trove of tweets. Indeed, Twitter didn’t even get around to incorporating search functionality into its platform until 2011 (five years after that first tweet), and that functionality was limited to searching only very recent tweets—there was no way to access tweets more than a week or so old. Enter Twitter’s new search engine, just out this month, allowing users to search tweets new and old. This new functionality is limited to fairly basic keyword searches right now, but Twitter expects to expand it very soon to encompass more flexible and complex queries. In the meanwhile, if you’re gearing up for a job search any time soon, you might want to delete those ill-advised drunken tweets from three years ago.

Dead air. There’s a common view in the tech industry that cutting-edge, transformative business models simply move too quickly for the law to regulate effectively—by the time that the courts get around to addressing the legal issues raised by such a business model, the genie is out of the bottle, the transformation has occurred and any resulting court decisions are too late to have any real impact. But then there’s Aereo. The once high-flying TV-over-the-Internet start-up promised to transform how we access television programming, to the acclaim of cord cutters everywhere (or at least in those carefully selected judicial circuits where Aereo had rolled out its service). And then the U.S. Supreme Court intervened, clipping the company’s wings—in a landmark decision, the court held that Aereo ran afoul of copyright law by engaging in unauthorized public performances of TV programs (our summary of that decision can be found here.)  In a stark reminder that Supreme Court decisions have very real consequences—even for hot start-ups using cool, disruptive technologies—Aereo has now filed for Chapter 11 bankruptcy. Even in defeat, however, Aereo will live on, at least in spirit—it has inspired a new generation of entrepreneurial companies in the TV space, and perhaps has prodded traditional media companies to explore online streaming of their TV programs. And, of course, despite the Supreme Court’s efforts to limit the scope of its ruling, the Aereo decision will be endlessly debated by courts, litigants and copyright scholars for years to come, shaping the future of our media landscape.

This is your refrigerator speaking—you’re low on milk. To date, the Internet of Things (IoT)—which includes digitally connected thermostats, medical devices, refrigerators, toaster ovens, bread boxes, toothbrushes and the like—hasn’t seemed to live up to its hype. But maybe it’s just a matter of time. In a recent report, BI Intelligence predicts that, by 2019, IoT will result in $1.7 trillion in value added to the world’s economy and the total value of IoT devices will be more than double the size of the smartphone, PC, tablet, connected car and the wearable market combined. Perhaps—but, looking into our own crystal ball, we’re skeptical that these massive numbers will be reached in that time frame unless the IoT industry effectively addresses the privacy and data security concerns raised by IoT devices in the home.

Forced to Cyber-Spy: Court Rules Parents Can Be Held Negligent for Child’s Facebook Activity

Posted in Litigation, Terms of Use

Are parents now liable for what their kids post to Facebook?  According to a recent decision in the Georgia Court of Appeals, they are.

The Georgia Court of Appeals held that the parents of a seventh-grade student could be found negligent for failing to ensure that their son deleted an offensive Facebook profile that defamed a fellow classmate.  The fake Facebook account depicted a fat-face caricature of the female student and featured sexual, profane and racist postings.  Facebook eventually took the page down at the urging of the bullied girl’s parents, more than 11 months after the school first disciplined the male student.  According to the court, the failure of the boy’s parents to take any action to get their son to delete the profile for nearly a year after the school alerted them about the Facebook page could constitute negligence.

“Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the [parents’] negligence proximately caused some part of the injury [the girl] sustained from [the boy’s] actions (and inactions),” the court stated.

The appeals court found that because the boy’s parents made no attempt to view the Facebook page, learn what content their son had distributed or demand that their son delete the page, they could be held negligent for failing to police their son’s social media account.  For this reason, the appeals court reversed the trial court’s decision to grant summary judgment to the boy’s parents.  The court, though, agreed with the lower court’s dismissal with respect to holding the parents responsible for allowing the page to be posted in the first place.

If upheld, this ruling by the Georgia Court of Appeals could usher in a new era of parental responsibility, imposing a significant duty upon parents to monitor their children’s online activity and remedy any problems once they are put on notice.

But will parents be upset about this holding, or welcome it as they seek ways to justify their cyber-spying?  More than 37% of teens own smartphones, and parents are increasingly looking for ways to keep tabs on their kids.  According to the Family Online Safety Institute, 78% of parents have logged into their child’s Facebook account to monitor their private messages.  In 2012, 20 million people had already downloaded Life360, a location app that allows families to track each other’s movements with by-the-minute updates.  According to the co-founder of TeenSafe, an invisible tracking app that allows parents to monitor their kid’s location, social media activity and text messages, more than 500,000 users have used the service to help identify online bullying and keep teens out of dangerous situations.

So the next time a teenager yells at a parent for violating her civil liberties by tracking all of her online activities, the parent can simply point to the Georgia Court of Appeals decision and say they were forced to cyber-spy, for everyone’s protection.

Facebook Dislikes Fake Likes

Posted in Terms of Use

Money may not be able to buy happiness, but it can buy phony Facebook “likes.” And those can go a long way toward making a small business owner’s dreams come true, right?

Wrong, explains Facebook site integrity engineer Matt Jones in a recent post on the company’s official blog.

Businesses that purchase fake likes “won’t achieve results and could end up doing less business on Facebook if the people they’re connected to aren’t real,” Jones observes.

Phony likes don’t help companies to reach their target audiences on Facebook because, for one thing, the creators of phony likes—which usually originate from fake Facebook accounts or real ones that have been hacked into—aren’t actual paying customers with whom the business would benefit from communicating, digital marketing gurus explain.

Nor do phony likes represent people who are likely to be Facebook friends with consumers looking for peer recommendations.

Further, fake likes won’t increase the likelihood that the business purchasing them will reach a relevant wider audience because, according to Jones, the Facebook algorithm that decides when and where to deliver a page’s legitimate ads and content takes page engagement rates into account, and “the people involved [in creating a fake like] are unlikely to engage with a page after liking it initially.”

As one digital marketing blogger notes, “[Q]uantity [is] not the metric that [is] important with Facebook marketing; it’s all about the quality. Having 10,000 fans in India is great, but they’re not going to buy anything or visit you if you’re a furniture store in Sydney, Australia.”

And so, for these reasons, and for the sake of maintaining its own advertising-dependent business model, Facebook is doing all it can to rid the social network of phony likes, reports Jones. The company’s efforts to achieve this end include automated measures such as algorithms that block spam and help Facebook to identify fraudulent activity. The company also asks for verification from accounts with particularly high like activity.

Indeed, Facebook’s recent ban on the practice of “like” gating appears to be part of this same initiative to ensure the legitimacy—and marketing value—of each individual like.

There is one group of businesses for whom bogus likes make economic sense: Those that profit from selling such likes. Pssst—wanna buy a like? For $480, you can reportly purchase 10,000 likes, while $1,200 gets you 50,000 new likes. It’s big business; a 2013 study estimated that fake Facebook activities generate $200 million a year. But Facebook is fighting back.

Jones’s Facebook blog post highlights the nearly $2 billion in legal judgments that the social media platform obtained by filing lawsuits against spammers. The most publicized of those suits concern more traditional spamming—the gaining of unauthorized access to Facebook user accounts for the purpose of sending unsolicited commercial electronic messages. But Facebook has filed at least one suit against a seller of phony likes, and, based on Jones’s statements, one can expect Facebook to commence more such suits in the future.

And while Facebook isn’t likely to see much money from these lawsuits—the defendants often file for bankruptcy or simply disappear—the resulting judgments are likely to deter parties from selling phony likes.

As we’ve recently discussed, the Facebook like has now achieved legal status—as property, as protected speech under the First Amendment and as protected “concerted activity” under the National Labor Relations Act. So it’s not surprising that, with the growing business and legal importance of the like, we’re seeing a greater effort on Facebook’s part to ensure the integrity of the like.

And, if it is to have integrity, a like needs to be earned, not bought.

Status Updates

Posted in Uncategorized

Invisible hits. What could possibly be meant by the following tweet? “CA-40/43-44/49-44/44-50/36-44/49-10/16/14-52–>49/476-10s.” According to a recent CNN report, GOP groups tweeted such seemingly meaningless gibberish in order to communicate key, up-to-the-minute polling data for U.S. House of Representatives races just before the recent midterm elections. Campaign operatives who followed the House races closely could decipher the tweets. So, chalk up a new use for social media – but perhaps a legally dubious one, as some federal election law experts say tweets like these might constitute illegal “coordination” between outside political groups and political campaigns. The Huffington Post reports that Democrats also used similar techniques on Twitter back in 2012. Does communicating such information by hiding it in plain sight on Twitter, which after all is a public forum, violate the law regarding coordination? Election lawyers aren’t sure, and the vice chair of the Federal Election Commission told CNN that this is a “murky” area. Experts doubt that the FEC will actually take enforcement action, but it’s certainly an interesting question, and we’re sure we haven’t seen the end of creative efforts to use social media in campaigns.

Duty now for the future. People often wish to donate documents containing sensitive information to libraries or archives with instructions that the documents not be made publicly available until a specified time in the future.  But it sometimes becomes impossible for the library or archive to comply with such instructions – for example, when the documents are subpoenaed. Jonathan Zittrain, director of the Berkman Center for Internet and Society at Harvard University, recently received a $35,000 grant from the Knight Foundation to develop an encrypted “time capsule” that would make early disclosure impossible. One idea is to use extremely complicated code that today’s computers can’t decipher but that (it is assumed) will be breakable by more advanced computers in the future. Given the unpredictability of technological progress, however, Mr. Zittrain’s  preferred solution is a divided key where several archives possess only  part of the encryption key. The FBI, predictably, isn’t happy with any of these options.

 Know your product. As the holiday shopping season approaches, retailers want to know the best way to reach consumers. One possibility: Twitter. A recent survey conducted for Twitter by a consulting firm indicates that more than half of 2,100 Twitter users ages 13 and up said that a Twitter promotion motivated them buy something they might not otherwise have purchased. Fifty-four percent checked Twitter while shopping – yet another indication that the future of social media is in the mobile sphere. It’s elsewhere been reported that 76 percent of Twitter users take the mobile route. Among the products most often purchased because of Twitter mentions: clothing, shoes, gift certificates, movies, and electronics.

Status Updates

Posted in Status Updates

Commercial free content. Would you pay to diminish the number of ads that appear on your screen while you surf the Web? Google is testing a service that will allow users to do just that. The service, called Contributor, will give visitors to ten web sites that Google has partnered with the opportunity to pay a monthly fee of between $1 and $3 to avoid being subjected to on-screen promotions. In exchange for forking over the funds, a small portion of which will go to Google, readers of content on sites including Mashable and The Onion will see banners thanking them for their patronage in the spots where on-screen advertisements would otherwise appear. According to the New York Times, this isn’t the first time that the tech giant has tested Internet users’ willingness to pay for content, and it probably won’t be the last.

Flying less-than-friendly skies. The bankruptcy-plagued airline industry is finally turning to its customers’ personal information as a source of potential revenue. Airlines are late to the customer-data-mining party because, compared to traditional retailers, airlines need to track their patrons over a much longer time period to get a sense of their spending habits (most people purchase plane tickets a lot less frequently than they buy, for example, coffee). But, faced with ticket prices that barely cover costs, airlines are turning to tech-savvy global distribution service companies for several years’ worth of a customer’s transactions and information gleaned from patrons’ social media profiles and interactions. The airlines hope the information will allow them to deliver more targeted offers to air travelers, but—for frequent flyers—it poses yet another privacy concern. As if turbulence weren’t enough to worry about?

Status Updates

Posted in Status Updates
  • A saving grace for search results. In the first case since 2007 to address the issue, a California state court judge recently held that Google’s search results are in fact protected by U.S. free speech laws, and that Google is therefore entitled to rank  the results it delivers in response to queries however it determines will be most useful to its users.  The California judge issued the holding in the context of dismissing a lawsuit filed by Louis Martin, the operator of a web site called CoastNews, who claimed Google’s exclusion of his site from search results is biased. The California court categorized Martin’s suit as a “SLAPP” case—a lawsuit intended to intimidate or censor critics. This move by the U.S. court system is in distinct contrast to what’s going on in Europe, where Google’s pervasive Internet presence is at risk of being curtailed as a result of regulators’ investigation into the search engine’s possible violations of antitrust law.
  • Picture perfect captions.  We’ve written about visual recognition software before.  Now Google has gotten into the act.  The company has developed new artificial intelligence software that can automatically produce captions that, according to Google’s research blog, “accurately describe images the first time it sees them.”  The potential practical implications are significant.  A blind person could conceivably click on a photo and have its contents described using voice technology.  The new software might also improve people’s ability to search on Google for photos that they vaguely remember but don’t recall in detail.

Big Data: Big Business, Big Privacy Issues

Posted in Privacy

Big data is now big business.

In recent years, due to the exponential growth of databases (spurred at least in part by social media and cloud storage) and of the capability of technology to undertake data analytics on a massive scale, organisations have started to appreciate the potential hidden value that could be derived from their data.

Indeed, in March 2014, Neelie Kroes (Vice President of the EU Commission responsible for the Digital Agenda) reflected this view when she hailed a “data gold rush… a new industrial revolution… a digital revolution fuelled by big data”.

It’s certainly clear that big data analytics can drive potential significant benefits. Information produced from analytics can help companies to forecast and make better decisions, make savings and efficiencies, and improve agility. However, big data can also produce significant legal risks, in particular, in terms of data privacy and security. In this blog post, we highlight how different data protection authorities around the world are addressing big data and discuss how organisations can best manage their privacy compliance when embarking upon big data projects.

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Monkey Selfie Redux

Posted in Trademark

This is the famous Monkey Selfie.

When we last examined the intellectual property issues raised by a self-portrait taken by a talented female Indonesian crested black macaque—popularly known as the “Monkey Selfie”—we concluded that there was unlikely to be any copyright protection in the work, under either U.S. law or U.K. law.

Following that analysis, the U.S. Copyright Office further clarified its views on the subject.  In its public draft of the third edition of the Compendium of U.S. Copyright Office Practices, the Copyright Office specified in Section 306 (“The Human Authorship Requirement”) that “[t]he Office will not register works produced by nature, animals, or plants. . . .  Examples:  A photograph taken by a monkey.”


Now there is yet another wrinkle in the saga of what may be the world’s most photogenic monkey.

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item).  The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken.  Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate.  But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.

This is the image from the trademark application.

We note that the application is in its very early stages, and has not yet been assigned to an examining attorney.

Having made an impact on copyright law, is the monkey now turning her sights to trademark law? What next? The right of publicity? A patent application? Will any area of intellectual property law be left untouched by this simian shutterbug? Stay tuned.