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Socially Aware Blog

The Law and Business of Social Media

Hot Off the Press: The May Issue of Our Socially Aware Newsletter Is Now Available

Posted in Copyright, DMCA, First Amendment, FTC, Infographic, Internet of Things, IP, Privacy, Terms of Use

150514SociallyAwareThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we discuss a recent decision in Virginia protecting the anonymity of Yelp users; we examine the FTC’s much anticipated report, “Internet of Things: Privacy & Security in a Connected World;” we explore the major social media platforms’ approaches to handling deceased users’ accounts; we highlight a recent CJEU case holding that extracting large amounts of data from public websites—commonly known as “web scraping”—may violate website’s terms of use; we highlight the first-ever award of “any damages” for fraudulent DMCA takedowns; we drill down on important precedents that are defining the multi-channel programming distribution industry; and we take a look at cross-device tracking in interest-based advertising.

All this—plus an infographic featuring some intriguing online dating statistics.

Read our newsletter.

#Trademarks?: Hashtags as Trademarks

Posted in Litigation, Trademark

hashtag_iStock_000047220610_Illustration_650pxHashtags have become ubiquitous in social media, but their status as intellectual property—particularly as trademarks—is still developing. First adopted by Twitter users to link user posts, hashtags are character strings preceded by the “#” symbol that generate a link to all other posts containing the same tag. Today, in addition to providing the search-related functionality for which they were first developed, hashtags provide businesses new ways to engage with consumers. Hashtag marketing campaigns by businesses generate brand awareness by encouraging social media users to post with the campaign tag and, in return, offer users discounts, prizes or even a chance to become a model.

But can a hashtag be registered as a trademark? The functional nature of hashtags led to initial uncertainty on this question, which the U.S. Patent and Trademark Office settled in 2013 when it added a new section to the Trademark Manual of Examination Procedure on registration of hashtag marks. The USPTO defines a hashtag as “a form of metadata comprised of a word or phrase prefixed with the symbol ‘#’” and states that a hashtag mark may be registerable, but only if it functions as an identifier of the source of the applicant’s goods or services. For example, #ingenuity would be registerable for business consulting services as a distinctive term, while #skater for skateboard equipment would be merely generic and non-registerable. In addition, to obtain a registration, the applicant must provide evidence of the use of the mark in connection with the relevant goods or services, which means that, like any other trademark, a hashtag mark must actually be used in commerce to be registrable.

Unlike traditional tag lines, which are meant to be used primarily by the mark owner, hashtags are typically intended to be disseminated by social media users. For example, the makers of Mucinex have registered #blamemucus, which allows potential consumers to commiserate about their colds through social media, as well as spread the word about Mucinex and participate in drawings for prizes. The #blamemucus registration covers both the pharmaceutical products themselves (with a store display bearing the mark as a specimen of use) and services consisting of providing information in the field of respiratory and pulmonary conditions via the internet (with the company website as a specimen). By covering both the core goods and online services, the registration provides broad protection for the hashtag mark against use by competitors. Companies may also attempt to register a phrase that has already become an internet meme. For instance, an application for #throwbackthursday has been filed by producers of an entertainment and comedy series, while #fixitjesus has been claimed by a maker of T-shirts.

As one might expect, the widespread use of hashtags has resulted in trademark disputes from time to time. In 2010, for example, a Wyoming-based chain of Mexican restaurants called Taco John’s, which owns a federal registration for the mark “Taco Tuesday,” sent a cease-and-desist letter to an Oklahoma restaurant called Iguana Grill seeking to stop Iguana Grill’s use of the phrase “Taco Tuesday” and the hashtag #tacotuesday for its own taco promotion. Iguana Grill did agree to stop using the name for its taco night; as of this writing, the restaurant’s Facebook page exhorts customers to “Keep a look out for our taco specials . . . for Iguana Tuesday!” But, as is often the case with arguably heavy-handed trademark enforcement efforts, Taco John’s cease-and-desist letter also resulted in considerable public criticism of Taco John and outspoken support for Iguana Grill.

In March 2015, clothing maker Fraternity Collection brought trademark infringement claims in federal district court in Mississippi against a former designer based on use of the tags #fratcollection and #fraternitycollection on social media. The court accepted at the pleading stage “the notion that hashtagging a competitor’s name or product in social media posts could, in certain circumstances, deceive consumers.” Accordingly, the court held that Fraternity Collection’s complaint stated a claim for false advertising under the Lanham Act and for trademark infringement under state law, and denied the designer’s motion to dismiss those claims. This was, as far as we are aware, the first time that a court has found that use of a competitor’s mark in a hashtag, rather than on the product itself, could result in consumer deception.

The Fraternity Collection case involved a clearly competitive use of the hashtags. What remains unclear, however, is how trademark law will treat hashtags used for non-competitive goods and services. The traditional test for infringement is the likelihood of consumer confusion. This inquiry weighs a number of factors, including the similarity of the respective marks, similarity of the respective goods or services and the advertising channels used by the parties. Thus, courts have generally found consumer confusion to be unlikely when similar or identical marks are used for unrelated goods or services that tend to be advertised in different channels. The use of identical hashtags, however, creates a single feed of all posts under same tag, regardless of how different the advertised goods or services may be. Unlike in the physical world, where businesses can stake out non-overlapping niches for unrelated goods or services, the tag itself acts as an advertising channel on social media platforms. It remains to be seen how this functional aspect of hashtags will be weighed by the courts in the consumer confusion analysis.

As competition for attention among social media users increases, trending tags may become an increasingly prized commodity. On the other hand, given the ephemeral nature of some hashtags and the fleeting popularity of social media fads, companies should consider the long-term viability of a particular hashtag before expending time and resources to protect it. In any event, before adopting hashtags for social media campaigns, it is imperative to research potential conflicts, which may include trademark clearance searches to identify conflicting uses. And if a hashtag has already become an effective marketing tool, it may be time to consider registering it as a trademark.

Are You Socially Aware? Take Our Millennial Influencers Quiz

Posted in FTC, Marketing

Fan-Frenzy-iStock_000007106900_Illustration_650pxOK, Socially Aware readers, we’ve got a pop-culture quiz for you today. How many of the following names are familiar to you?

  1. Smosh
  2. The Fine Brothers
  3. PewDiePie
  4. KSI
  5. Ryan Higa

If any of those monikers rings a bell, we’re guessing you’re a millennial, the parent of a millennial or a marketer who targets millennials. Those of us who don’t fall into any of those categories might be surprised to learn that, according to a survey conducted for Variety by a celebrity brand strategist, the people on the above list are the five most influential celebrities among U.S. teens aged 13-17. These celebrities are unfamiliar to most of us because they didn’t rise to fame in the mainstream media but on social media—YouTube, specifically.

The brand strategist conducting the survey, Jeetendr Sehdev, presented 1,500 teenage respondents with the names of the ten most popular English-language YouTube personalities (based on the number of their subscribers and video views) and the names of the ten mainstream media celebrities with the greatest clout among 13- to17-year-olds (as determined by an accepted set of criteria used to measure consumer appeal).

In an effort to compare the 20 celebrities’ influence, Sehdev then asked the respondents to rate these celebrities based on several criteria, such as authenticity and approachability. Based on the teens’ responses, all 20 public figures were ranked. Six of the top ten were social media personalities. The respondents’ comments revealed that, for the teens, the rawness of the YouTube celebrities’ appearances translated into trustworthiness.

The lesson for marketers is obvious: When you’re vying for teens’ time, attention and allowance money, your spokesperson shouldn’t be overly polished, and your message shouldn’t be overly produced. Otherwise, your target audience will feel like the endorsement is disingenuous—a quality that’s unlikely to make them ask their parents for the credit card.

Of course, advertisers enlisting these or any other YouTube stars to promote products and services need to be aware of the Federal Trade Commission’s (FTC) Endorsement Guides and related legal concerns; as we’ve discussed on this blog, the FTC takes the position that, where a social media influencer endorses a company’s products or services in return for consideration from such company, such consideration needs to be clearly disclosed in order to avoid deceiving consumers.

By the way, here’s the entire Variety list, complete with the occupations of the listed celebrities (so you can feel like you’re in the know):

  1. Smosh (comedy duo)
  2. The Fine Brothers (producers, writers and directors known for their React video series)
  3. PewDiePie (Swedish producer of Let’s Play videos)
  4. KSI (English video game commentator)
  5. Ryan Higa (YouTube personality and actor)
  6. Paul Walker (American television and film actor)
  7. Jennifer Lawrence (American film actor)
  8. Shane Dawson (American YouTube personality, actor, comedian, and film director)
  9. Katy Perry (American singer, songwriter and actor)
  10. Steve Carell (American actor)
  11. Seth Rogan (American actor)
  12. Betty White (American actor)
  13. Vin Diesel (American actor, filmmaker and producer)
  14. Johnny Depp (American actor)
  15. Daniel Radcliffe (English actor)
  16. Jenna Marbles (American entertainer and YouTube personality)
  17. Michelle Phan (American make-up demonstrator and entrepreneur)
  18. Ray William Johnson (American video blogger, producer and actor)
  19. Bethany Mota (American video fashion-blogger)
  20. Leonardo DiCaprio (American actor)

Yes, 93-year-old Betty White is up there, only a couple of rungs beneath the top ten. Feel better now? We sure do.

 

Rolling With the Punches: The Fight Over Livestreaming

Posted in Copyright, IP, Litigation

BizFight_iStock_000027343182_Illustration_600pxBoxing fans eagerly awaited the May 2, 2015, championship match between boxers Floyd Mayweather, Jr. and Manny Pacquiao. But the fight also drew the interest of those following online video apps Meerkat and Periscope. Launched at the end of February 2015, Meerkat is a livestreaming iPhone app that allows Twitter users to stream videos from their phones to their Twitter accounts in real time. The Periscope app, which Twitter acquired in January for a reported $100 million, provides similar livestreaming functionality, though Periscope’s streams remain online for playback for an additional 24 hours, while Meerkat’s streams can only be watched live or saved to users’ individual camera rolls.

As joint producers of the Mayweather-Pacquiao fight, premium networks HBO and Showtime had exclusive rights to transmit the event live. Unless you had a ticket to the MGM Grand in Las Vegas, the only authorized way to view the fight was on pay-per-view at a cost of up to $100. Some fans, however, avoided the pay-per-view fee by watching livestreams of the event through Meerkat and Periscope. A number of Meerkat and Periscope users streamed the fight either from their seats at the arena or, more commonly, simply by pointing their phones at their television screens. Although a livestream of a TV screen may not provide great quality, it was apparently good enough for viewers to figure out what was happening in the fight. At least one stream was reported to have over 6,000 people watching at one point. Assuming a pay-per-view charge of $100 per viewer, that meant $600,000 of pay-per-view fees not being paid to HBO and Showtime.

Prior to the fight, HBO and Showtime had already taken steps to prevent piracy from eating into their pay-per-view revenues. Five days before the fight, Showtime and HBO filed a complaint in the Central District of California against nine websites advertising that they would stream the fight for free. In the complaint, the plaintiffs, as the copyright owners of the coverage to be filmed by the single authorized camera crew, alleged direct, contributory and vicarious copyright infringement and asked for an injunction prohibiting defendants from “hosting, linking to, distributing, reproducing, performing, selling, offering for sale, making available for download, streaming or making any other use of the [c]overage.” The plaintiffs also asked for damages and attorneys’ fees. On April 28, 2015, the court granted plaintiffs’ request for a temporary restraining order and ordered the defendants to show cause why the terms of the temporary restraining order should not be entered as a preliminary injunction.

But HBO and Showtime were unable to take similar preventive action against piracy by individual users of Meerkat and Periscope. However, after the streams began appearing, they did issue takedown requests to Periscope under the notice and takedown procedures of the Digital Millennium Copyright Act (DMCA). According to a Twitter spokesperson, Periscope, which operates independently of Twitter, received 66 takedown requests and took action against 30 broadcasts in response to the requests; the remaining Periscope streams had already ended or were no longer available. Compared to Periscope, Meerkat presents even greater challenges for broadcasters when it comes to policing piracy, because everything on Meerkat is live and there is no storage of streams for future viewing. As such, the policing of Meerkat streams requires real-time vigilance and action (indeed, it is unclear to what extent if any the DMCA’s notice and takedown procedures would apply to Meerkat’s current business model). According to Meerkat chief executive Ben Rubin, however, “[Meerkat] worked closely with the content owners and contacted users they alerted us about.”

The Mayweather-Pacquiao fight was not HBO’s first time in the ring with Periscope on piracy issues. In mid-April 2015, HBO sent takedown notices to Periscope after Periscope users livestreamed episodes of the HBO show Games of Thrones. Periscope reportedly took action against the infringing account holders.

All of this sparring between content owners and users of livestreaming apps highlights the tension between the legitimate interests of content providers in preventing piracy and the equally valid interests of technology companies (and the general public) in encouraging the growth of this new technology. For its part, HBO has suggested that DMCA takedown notices may not be sufficient and that app developers should “have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications.” Others have opined that livestreaming apps should develop tools like Google’s Content ID system, which automatically scans videos uploaded to YouTube against a database of files submitted by verified content owners and gives the owners the option of muting, blocking, monetizing or tracking the content.

It should also be noted that, depending on the circumstances and content being streamed, users of livestreaming apps may also be able to assert a fair use defense under Section 107 of the US Copyright Act. For example, it would not be difficult to imagine a case similar to Lenz v. Universal arising in the livestreaming context. In Lenz, Universal Music Publishing Group objected to a YouTube video uploaded by Stephanie Lenz that showed her children dancing along to the Prince song “Let’s Go Crazy.” Universal issued a DMCA takedown notice to YouTube and Ms. Lenz sent a counter-notice claiming fair use. Eventually YouTube restored the video, and the litigation between Ms. Lenz and Universal continues to this day. The difference, of course, is that issues of fair use (and takedown notices and counter-notices) will quickly become moot in the livestreaming context due to the ephemeral nature of the medium.

Only time will tell how long and how violent the fight between content owners and users of livestreaming apps like Periscope and Meerkat will be. At least for the moment, however, it does not seem that the content owners within the mainstream entertainment industry are immune to the commercial and promotional opportunities that livestreaming apps offer. In an ironic twist, HBO itself used Periscope as part of its pre-fight hype, streaming content to its Twitter feed from Manny Pacquiao’s dressing room.

Social Media Assets in Bankruptcy: Facebook and Twitter Accounts Subject to Reach of Creditors

Posted in Bankruptcy

iStock_000038943470_MediumSocial media accounts can be “property of the estate” in a bankruptcy case of a business, and thus belong to the business, even when the contents of the accounts are intermingled with personal content of managers and owners. This principle was recently confirmed by the Bankruptcy Court for the Southern District of Texas in In re CTLI, LLC (Bankr. S.D. Tex. Apr. 3, 2015), which featured a battle among equity holders over Facebook and Twitter accounts promoting a business called Tactical Firearms.

Tactical Firearms was a gun store and shooting range. Prior to filing for bankruptcy, the business had used Facebook and Twitter accounts in its marketing. The original majority shareholder and managing office, Jeremy Alcede, had mixed his quasi-celebrity personal activities and personal politics with the promotion of the business, frequently taking to Facebook and Twitter for both personal purposes and for the promotion of the business. When the company filed for bankruptcy, Alcede ultimately lost ownership and control of the company to another investor through a Chapter 11 plan of reorganization.

Despite the loss of the business, Alcede fought to retain control over the Facebook and Twitter accounts. However, although he had changed the names of the accounts to reflect his personal name rather than that of the company, the Bankruptcy Court held that the accounts belonged to the business. The court applied Bankruptcy Code § 541, which provides that a bankruptcy estate includes “all legal or equitable interests” of a debtor, in holding that the social media accounts belonged to the debtor and thus constituted property of the bankruptcy estate.

As the court recognized, Alcede had originally created the Tactical Firearms business, and the accompanying social media accounts, as “an extension of his personality” and, “like many small business owners, closely associated his own identity with that of his business.” The court, however, rejected Alcede’s definitions of “personal” versus “business related” media posts, finding that the best marketing for business through social media is “subtle” and can involve the use of celebrities to promote the business.

The core results of the CTLI decision were as follows:

  1. Rejecting Alcede’s property and privacy arguments, the court determined that the social media accounts were property of the bankruptcy estate, much like subscriber or customer lists, despite some intermingling with Alcede’s personal social media rights. The court then exercised various remedies and contempt powers to protect the successor-owned business from Alcede’s further interference and to assure that the successor could take control of the assets, including requiring delivery of possession and control of passwords for the accounts.
  2. The court concluded that the “likes” that the Facebook page received belonged to the bankrupt entity, even though Alcede had registered as a Facebook user and page administrator with his personal Facebook profile. The court noted that Tactical Firearms had a Facebook page that was (a) directly linked to the Tactical Firearms web page, (b) used by Alcede and certain employees to post status updates for promoting the business, and (c) created in the name of the business rather than (until it was later improperly changed) in the name of the individual. Personal content interjected into the business page content did not change that result. Additionally, business messages to customers were communicated through the Facebook page and business-related posts.
  3. The court noted that, while the business content on Tactical Firearms’ Facebook page had to be accessed through Alcede’s personal Facebook profile, which he had created as the registered administrator, that fact was not controlling. The business pages could be managed by multiple individuals with their profiles, and access to personal information was not necessary to manage those business pages.
  4. The court also held that the Twitter account belonged to the business, given that the Twitter handle was “@tacticalfirearm” and that the account description included a description of the business.
  5. The court also rejected Alcede’s privacy concerns by analogizing to cases finding that parties had waived the attorney-client privilege by sharing privileged information with non-clients, or to cases where an employee used the employer’s computer system and thereby waived privacy rights as to personal emails. Because the social media accounts were for the benefit of the business, Alcede lost any personal privacy right in his content and was forbidden to modify either the Facebook or Twitter account by adding or deleting any material.

Therefore, the court ordered Alcede to transfer control of the account to the new owner of the reorganized business.

The decision is noteworthy because disputes regarding social media assets, like many other rights newly created in the digital age, have generally been addressed below the public radar in bankruptcy cases and other commercial settings. This is changing, and parties in bankruptcy cases and related proceedings are increasingly focused on capturing the value of these kinds of assets.

CTLI also highlights the need to properly structure and document the various rights associated with social media accounts, as is customarily done with the intellectual property rights of inventors, authors and other creators of content or employees who are providing innovation to the business that employs them. The decision illustrates that equity holders and managers should discuss and plan for how to deal with their separate assets in advance of bankruptcy or other litigation.

Even if an individual wishing to preserve and shield his or her personal social media assets from related business entities has properly structured the use of the assets, a variety of other issues may arise in that individual’s personal bankruptcy. In such a case, most of his or her personal social media assets would be subject to the bankruptcy and could be lost in sales for the benefit of creditors. Other social media issues that arise in bankruptcy cases of individuals are also worth considering. For example:

  • Exempt Assets. Only individuals (as opposed to business entities) can have personal assets that are exempt from the reach of creditors in bankruptcy. A social media account or blog and its copyrighted material could be argued to be a “tool of the trade” for a blogger and thus be exempt; however, even if that argument were to succeed (perhaps unlikely), most exemptions in bankruptcy are capped at a very low value, and the statutory exemptions are usually narrow and predate more modern classes of assets. Exemptions are thus unlikely to protect these accounts.
  • Automatic Stay. When a bankruptcy case is filed, all acts against a debtor or its assets, including litigation against a debtor or efforts to take control of its property, are automatically stayed. However, secured lenders, who often have blanket liens on all of a borrower’s assets (including social media assets), may have the ability to get relief from the automatic stay in order to foreclose on assets or pursue other remedies.
  • Rights of Publicity. In a bankruptcy of a high-profile individual, his or her social media assets will become part of the bankruptcy estate and may be sold. However, the individual may still be able to use his or her “persona,” or in the words of the CTLI court, “the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or others.” While that “persona” interest, particularly of celebrities in states like California, has value as a type of intellectual property, there are questions as to the extent to which the assets could be marketed, particularly at the exclusion of the individual from using his or her own name and likeness in the future. Additionally, it will be inherently awkward for both the buyer and that person to compete using the same assets. Nevertheless, those assets may have strategic value to the debtor’s adversaries.

As social media assets become increasingly valuable, such assets will mean more to both the owner and to the owner’s creditors. Valuable assets are always in play in bankruptcy cases. A bankrupt debtor may face significant challenges in starting over without the use of those social media assets in which so much was invested. These assets will increasingly be a source of disputes and will require close scrutiny.

Status Updates

Posted in Status Updates

Social discovery. Are the photos and status updates that you post to your social media accounts discoverable regardless of the privacy settings you choose? If they contain information that is especially relevant to the case, they probably are. Take, for example, two recent cases in which courts have required litigants to produce information contained in their Facebook accounts. In Nucci v. Target the Florida Court of Appeals denied a personal injury claim plaintiff’s petition to quash an order compelling her to produce photographs from her Facebook account from two years before the accident to the present. The plaintiff sought emotional and economic damages stemming from a fall that she alleged was caused by a foreign substance on the floor of a Target store. The Florida court held that the photographs were “powerfully relevant” to the plaintiff’s damages claim since the quality of her life before and after the accident was at issue, and because surveillance videos of the plaintiff called her account of her post-accident life into question. The court held that this relevance “overwhelms” the plaintiff’s privacy interest in photos posted to a Facebook account despite privacy settings that prevented the photos from being seen by the general public. In the second case, Crowe v. Marquette Transportation Co., a federal district court in Louisiana ordered the plaintiff to produce a complete copy of his entire 4,000-page Facebook history, including the private messages he sent via the Facebook platform. The defendant Marquette alleged that investigators had discovered that the plaintiff in this worker’s compensation case had sent a Facebook message admitting that he was injured while fishing, not while working for Marquette. When, during a deposition, the defendant was shown a printout of the Facebook message, which appeared to have been sent from an account bearing his name, the defendant denied sending the message and testified that his account had been hacked. The district court held that “Marquette is entitled to analyze the thousands of pages of Facebook messages [that the plaintiff] exchanged with others… particularly given his [Facebook-account related] testimony.”

Smartphoning it in. A recent survey from Pew Research Center shows that the number of Americans with smartphones has jumped to 64%—a 29% increase since 2011. Despite the fact that the great majority of those smartphone owners (90%) have other means of accessing the Internet from home, 35% of them “frequently” use their phones to follow along with breaking news, 62% of them have used their phones to look up information about a health condition, and 57% have used their phones to do online banking. Whether someone has used his or her smartphone to access career opportunities, according to Pew, is largely dependent on whether a person is what the research firm calls “smartphone-dependent”—i.e., one of the 10% of Americans with no high-speed Internet access beyond their smartphones’ data plan. Of the smartphone-dependent people surveyed by Pew, 63% used their phones to access job openings in the last year, and 39% used their phones to submit job applications in the last year. Of the overall pool of cell phone owners surveyed by Pew, only 43% and 18% performed those job-search related activities, respectively.

Schadenfacebook. Bummed out by all of your friends’ check-ins at swanky restaurants and photos of their perfect offspring in your newsfeed? It turns out that you can get a handle on the depression that we’ve come to associate with social media use without swearing off your virtual networks altogether. Forbes reports that two new studies—one by the Journal of Social and Clinical Psychology and one out of the University of Houston—have attributed the negative feelings that social media users sometimes experience to the same underlying mechanism: social comparison. And that’s something you can control. So the next time you find yourself clicking back through your old college buddy’s montage of his trip to Machu Picchu, remember: Most people only post the highlights of their experiences, not the reality of their daily lives. And, Forbes’s contributor suggests, “it wouldn’t hurt to post about those quieter, less glamorous moments, too. That might actually go a long way in making people feel more connected, instead of just the opposite.”

Court Protects Anonymity of Yelp Users

Posted in Defamation, First Amendment, Litigation, Privacy

 

0428_BLOG_iStock_000034491882_LargeVirginia’s highest court recently held that Yelp could not be forced to turn over the identities of anonymous online reviewers that a Virginia carpet-cleaning owner claimed tarnished his business.

In the summer of 2012, Joseph Hadeed, owner of Hadeed Carpet Cleaning, sued seven anonymous Yelp reviewers after receiving a series of critical reviews. Hadeed alleged that the reviewers were competitors masking themselves as Hadeed’s customers and that his sales tanked after the reviews were posted. Hadeed sued the reviewers as John Doe defendants for defamation and then subpoenaed Yelp, demanding that it reveal the reviewers’ identities.

Yelp argued that, without any proof that the reviewers were not Hadeed’s customers, the reviewers had a First Amendment right to post anonymously.

A Virginia trial court and the Court of Appeals sided with Hadeed, ordering Yelp to turn over the reviewers’ identities and holding it in contempt when it did not. But in April 2015, the Virginia Supreme Court vacated the lower court decisions on procedural grounds. Because Virginia’s legislature did not give Virginia’s state courts subpoena power over non-resident non-parties, the Supreme Court concluded, the Virginia trial court could not order the California-headquartered Yelp to produce documents located in California for Hadeed’s defamation action in Virginia.

Although the decision was a victory for Yelp, it was a narrow one, resting on procedural grounds. The Virginia Supreme Court did not address the broader First Amendment argument about anonymous posting and noted that it wouldn’t quash the subpoena because Hadeed could still try to enforce it under California law.

After the ruling, Yelp’s senior director of litigation, Aaron Schur, posted a statement on the company’s blog stating that, if Hadeed pursued the subpoena in California, Yelp would “continue to fight for the rights of these reviewers under the reasonable standards that California courts, and the First Amendment, require (standards we pushed the Virginia courts to adopt).” Schur added, “Fortunately the right to speak under a pseudonym is constitutionally protected and has long been recognized for the important information it allows individuals to contribute to public discourse.”

In 2009, a California law took effect, allowing anonymous Internet speakers whose identity is sought under a subpoena in California in connection with a lawsuit filed in another state to challenge the subpoena and recover attorneys’ fees if they are successful. In his Yelp post, Schur added that Hadeed’s case “highlights the need for stronger online free speech protection in Virginia and across the country.”

Had Hadeed sought to enforce the subpoena in California, the result may have been the same but possibly on different grounds. In California, where Yelp and many other social media companies are headquartered, the company would have been subject to a court’s subpoena power. Still, Yelp may have been protected from having to disclose its users’ identities. California courts have offered protections for anonymous speech under the First Amendment to the U.S. Constitution and the state constitutional right of privacy.

Nevertheless, there is no uniform rule as to whether companies must reveal identifying information of their anonymous users. In 2013, in Chevron v. Danziger, federal Magistrate Judge Nathanael M. Cousins of the Northern District of California concluded that Chevron’s subpoenas seeking identifying information of non-party Gmail and Yahoo Mail users were enforceable against Google and Yahoo, respectively, because the subpoenas did not seek expressive activity and because there is no privacy interest in subscriber and user information associated with email addresses.

On the other hand, in March 2015, Magistrate Judge Laurel Beeler of the same court held, in Music Group Macao Commercial Offshore Ltd. v. Does, that the plaintiffs could not compel nonparty Twitter to reveal the identifying information of its anonymous users, who, as in the Hadeed case, were Doe defendants. Music Group Macao sued the Doe defendants in Washington federal court for anonymously tweeting disparaging remarks about the company, its employees, and its CEO. After the Washington court ruled that the plaintiffs could obtain the identifying information from Twitter, the plaintiffs sought to enforce the subpoena in California. Magistrate Judge Bheeler concluded that the Doe defendants’ First Amendment rights to speak anonymously outweighed the plaintiffs’ need for the requested information, citing familiar concerns that forcing Twitter to disclose the speakers’ identities would unduly chill protected speech.

Courts in other jurisdictions have imposed a range of evidentiary burdens on plaintiffs seeking the disclosure of anonymous Internet speakers. For example, federal courts in Connecticut and New York have required plaintiffs to make a prima facie showing of their claims before requiring internet service providers (ISPs) to disclose anonymous defendants’ identities. A federal court in Washington found that a higher standard should apply when a subpoena seeks the identity of an Internet user who is not a party to the litigation. The Delaware Supreme Court has applied an even higher standard, expressing concern “that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously.”

These cases show that courts are continuing to grapple with social media as a platform for expressive activity. Although Yelp and Twitter were protected from having to disclose their anonymous users’ identities in these two recent cases, this area of law remains unsettled, and companies with social media presence should be familiar with the free speech and privacy law in the states where they conduct business and monitor courts’ treatment of these evolving issues.

Status Updates

Posted in Status Updates

Photo negative. Daniel Morel, the photojournalist who was awarded $1.2 million in damages from news agencies that distributed his iconic Haiti earthquake pictures without his permission after he posted those pictures on Twitter, will not be collecting attorneys’ fees. A federal district court in New York has denied Morel’s motion for an order compelling Agence France Presse and Getty Images to pay the attorneys’ fees and costs that Morel incurred while pursuing his copyright infringement claim against those two companies. In her opinion, Judge Alison Nathan wrote that one “particularly important consideration” factoring into her decision to deny attorneys’ fees was the fact that the Morel’s underlying copyright infringement suit “raised a relatively novel issue, the adjudication of which may… help further define the contours of copyright law in the digital age.” Indeed, Judge Nathan’s opinion in the underlying case, which held that Twitter users do not lose ownership rights in their content simply by posting that content to Twitter, was one of the first cases to examine the rights of a user posting his own (as opposed to someone else’s) copyrighted works to a social media platform vis-à-vis other users of the same platform (we suspect that we’ll see many more such cases over the coming years). Moreover, although Morel’s fee motion was denied, the case remains a stark reminder to companies that just because content has been made available on a social media network, that content isn’t necessarily available for use off of the platform, absent consent from the copyright owner or the platform provider (assuming such provider has acquired the necessary rights from the copyright owner).

Photo shop. And while on the topic of photographs, social media and copyright law, one enterprising company—Lobster—is trying to create an efficient, low-cost way for companies to license photographs posted to social media platforms for off-platform use. People post countless new images to social media regularly; Seventy-million new photographs are posted to Instagram alone every day. That’s a lot of content, especially when you consider that Getty Images, a go-to source for many businesses’ graphics needs, has an archive with 80 million images total. Lobster seeks to create a market for the almost unimaginable pool of photos posted to social media by facilitating the licensing of those images. Having secured approximately $386,000 in funding so far, the company just recently added a search function that, according to TechCrunch, “allows users, usually corporate marketers, digital agencies or publishers, to run a search across various social media for specific imagery and then request a license for that content through the platform.” Images cost $0.99 or $1.99, depending on the platform. For now, only photos posted to Instagram and Flickr are available on Lobster, but the start-up hopes to expand its service to include pictures that have been posted to Twitter, Vine, Facebook and Vimeo. To make their content available for licensing, Instagram and Flickr users need only include the hashtag #ilobsterit.

Photo (over)sharing. You know them: Those parents who assume their kid’s every move will be as fascinating to their entire social network as it presumably is to their immediate family. They post photos of their children engaged in all kinds of activities—even intimate ones like potty training and bathing—to Facebook and Instagram several times a day. This “oversharenting” is popular: 74% of the people who responded to a recent poll of parents with children four-years-old and younger said they know of another parent who has shared too much information about a child on social media. And 27% said they know of another parent who has shared inappropriate photos of a child. Now, according to ABC News, some people tired of the endless parade of kid photos in their Facebook newsfeeds are fighting back by telling the oversharenters how they feel. One objector has even created an entire blog dedicated to criticizing the oversharenters. If that’s not enough to make oversharenters reconsider their posting habits, perhaps this advice from the University of Michigan’s Child Health Evaluation and Research Unit will: “The federal Children’s Online Privacy Protection Act (COPPA) limits the collection or release of information via the Internet prior to 13 years of age; ironically, by that age, many children have a lengthy ‘digital profile’ based on their parents’ social media use. Parents need to be thoughtful about their use of social media to discuss parenting issues, and are encouraged to be diligent about understanding privacy policies that could impact the way their child’s information is shared.” Let’s face it: It’s hard enough for recent college grads searching for a job to live down those drunken party photos posted to Facebook—do they need to worry about those embarrassing potty training videos as well?

Status Updates

Posted in Status Updates

Home(page) renovation. In an effort to encourage return visits from the 150 million Internet users who visit Twitter every month without signing in, the social media giant has revamped its home page. Now, instead of just “a background photo, a few lines of text, and a prompt to sign up or log in,” Twitter’s home page features boxes with the names of several of the platform’s most popular content topics, including “Actors & Actresses,” “Cute Animals” and “General News Sources.” A click on one of the boxes will take you to a timeline of tweets from some of the most popular commentators who tweet on that topic. Whether the new homepage will be enough to help Twitter expand its active-user base remains to be seen. LexBlog’s Kevin O’Keefe thinks that, to get more attorneys to join, the platform will need to go a few steps further by breaking down its content into niche areas of law.

Teen traffic. A new Pew Research study shows that Facebook is still the most popular social media platform among the members of an age group that many companies consider a crucial target market: 13- to 17-year-olds. Of the 1060 teens surveyed, 71% reported using Facebook. Snapchat, the vanishing messaging app that seems to be make news almost every day (for some reason or other) is up there (41%), too, right behind the photo sharing site Instagram (52%). Interestingly, teens from households with incomes greater than $75,000 are much more likely than teens whose families earn less than $30,000 to call Snapchat their top social media platform (14% compared to 7%). And teenage girls are more likely than teenage boys to use what Pew classified as “visually-oriented social media platforms”: Instagram (61% of girls vs. 44% of boys); Snapchat (51% of girls vs. 31% of boys); online pinboards like Pinterest (33% of girls vs. 11% of boys); and Tumblr (23% of girls vs. 5% of boys).

Rules for the nude and rude. Instagram has amended its Community Guidelines, which formerly simply asked users to be polite and respectful, to specify that the photo sharing platform will remove “content that contains credible threats or hate speech, content that targets private individuals to degrade or shame them, personal information meant to blackmail or harass someone, and repeated unwanted messages.” Instagram also amended its original guidelines to amplify its blanket prohibition on nudity. The new guidelines specify that Instagram will allow nudity in photos of paintings and sculptures, and “photos of post-mastectomy scarring and women actively breastfeeding,” but will not allow “close-ups of fully nude buttocks.” And, in the interest of discouraging users from posting images that they have “copied or collected from the Internet,” something the platform’s guidelines always proscribed, the new guidelines contain a link to a page that informs users about their intellectual property rights. But Techcrunch notes that because Instagram, unlike Youtube, still “doesn’t offer any copyright fingerprinting system to automatically remove infringing media,” there remains a gap between the photo sharing platform’s intellectual property policy and its enforcement.

Status Updates

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Searching social. At long last, tweets will appear in Google search results as soon as they’re sent, as the result of a deal that the two Internet giants recently struck. As part of its efforts to increase user growth and attract more eyeballs to its social media platform, Twitter is finally giving Google immediate access to the content produced by its 284 million users. Previously, Google had to crawl through Twitter’s data, allowing Google to include in search results only a relatively small percentage of tweets. The announcement of the deal, which Mashable suggests should cause “trigger-happy users” to “think twice now before they tweet,” was followed by a 1.3%  rise in Twitter’s share price to $41.26. And this week Twitter shares rose as high as $52 each amid speculation that Google or some other company is trying to buy the social media giant.

Don’t worry, be app-y. Feeling blue? There’s an app for that. At least there will be, come this fall. A man named Robert Morris developed a prototype for the world’s first social network for people suffering from depression while he was a psychology PhD candidate at MIT, where he felt like everyone—except him—was a “brilliant coder.” Crowdsourcing answers to his computer programming conundrums on Stack Overflow inspired Morris to create a similar online resource for people struggling with mental health issues. On Koko, the iPhone app that Morris is developing for release in the autumn, users will be able to post their negative feelings (e.g., depression and anxiety) and the problems to which they attribute those feelings (e.g., a job loss). The poster’s Koko social network will then presumably respond to the post by pointing out the bright side of the situation or errors in the poster’s thinking. Fast Company reports that the Koko community will be “coached at every turn to pin their answers down so that they fall within the guidelines of cognitive therapy techniques that are proven to work,” but it remains to be seen how such coaching will work in practice.

Meer-terial girl. In what The Guardian has dubbed “a sign of the music industry’s keen interest in the popularity of social apps,” Madonna has decided to premier her Ghosttown video on the fledgling video broadcasting app Meerkat, which currently has only around 1,000 subscribers. Launched in February, Meerkat is an iPhone app that makes livestreaming easier than ever by allowing users to link their live videos to their Twitter accounts, thereby giving a Twitter user the ability to live stream a video he’s shooting on his phone. (Twitter’s own Periscope app performs essentially the same function). Since the pop star likely won’t be live streaming the video, exactly how she’ll use Meerkat for its premier is unclear. Meerkat is the fourth social media platform that Madonna has used to promote material on her current album, Rebel Heart; she’s already run campaigns for it on Grindr, Instagram, and Snapchat.