This is the famous Monkey selfie.

I confess: I have mixed emotions regarding the iconic “monkey-selfie” photo and all the hubbub it has created.

Don’t get me wrong; I think monkeys are wonderful, and the photo deserves its iconic status. Who can resist smiling while viewing that famous image of Naruto, the macaque monkey who allegedly snapped the self-portrait?

And the monkey selfie has been a boon to legal blogs. Our own posts regarding the photo have been among the most viewed content on Socially Aware (one of our posts prompted a call from my mother, who felt strongly that Naruto should be entitled to a copyright in the photo).

But, let’s face it, in an era where technology disruption is generating so many critical and difficult copyright issues, the law relevant to the monkey selfie is pretty straightforward, at least in the United States. As the U.S. Copyright Office states in its Compendium II of Copyright Office Practices, for a work to be copyrightable, it must “owe its origin to a human being,” and that materials produced solely by nature, by plants or by animals do not count. U.S. courts have reached the same conclusion. (Although I note that David Slater, the nature photographer whose camera was used to take the photo, claims that he—and not the macaque—is in fact the author of the photo for copyright purposes.) Continue Reading Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

Based on copyright infringement, emotional distress and other claims, a federal district court in California awarded $6.4 million to a victim of revenge porn, the posting of explicit material without the subject’s consent. The judgment is believed to be one of the largest awards relating to revenge porn. A Socially Aware post that we wrote back in 2014 explains the difficulties of using causes of action like copyright infringement—and state laws—as vehicles for fighting revenge porn.

The highest court in New York State held that whether or not a personal injury plaintiff’s Facebook photos are discoverable does not depend on whether the photos were set to “private,” but rather “the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case.”

A federal district court held that Kentucky’s governor did not violate the free speech rights of two Kentucky citizens when he blocked them from commenting on his Facebook page and Twitter account. The opinion underscores differences among courts as to the First Amendment’s application to government officials’ social media accounts; for example, a Virginia federal district court’s 2017 holding reached the opposite conclusion in a case involving similar facts.

Having witnessed social media’s potential to escalate gang disputes, judges in Illinois have imposed limitations on some juvenile defendants’ use of the popular platforms, a move that some defense attorneys argue violates the young defendants’ First Amendment rights.

A bill proposed by California State Sen. Bob Hertzberg would require social media platforms to identify bots—automated accounts that appear to be owned by real people but are actually computer programs capable of simulating human dialog. Bots can spread a message across social media faster and more widely than would be humanly possible, and have been used in efforts to manipulate public opinion.

This CIO article lists the new strategies, job titles and processes that will be popular this year among businesses transforming into data-driven enterprises.

A solo law practitioner in Chicago filed a complaint claiming defamation and false light against a former client who she alleges posted a Yelp review calling her a “con artist” and a “legal predator”  after, allegedly pursuant to the terms of his retainer, she billed $9,000 to his credit card for a significant amount of legal work.

Carnival Cruise Line put up signs all over the hometown of the 15-year-old owner of the Snapchat handle @CarnivalCruise in order to locate him and offer him and his family a luxurious free vacation in exchange for the transfer of his Snapchat handle—and the unusual but innovate strategy paid off. Who knew that old-school billboards could be so effectively used for one-on-one marketing?

In a decision that has generated considerable controversy, a federal court in New York has held that the popular practice of embedding tweets into websites and blogs can result in copyright infringement. Plaintiff Justin Goldman had taken a photo of NFL quarterback Tom Brady, which Goldman posted to Snapchat. Snapchat users “screengrabbed” the image for use in tweets on Twitter. The defendants—nine news outlets—embedded tweets featuring the Goldman photo into online articles so that the photo itself was never hosted on the news outlets’ servers; rather, it was hosted on Twitter’s servers (a process known as “framing” or “inline linking”). The court found that, even absent any copying of the image onto their own servers, the news outlets’ actions had resulted in a violation of Goldman’s exclusive right to authorize the public display of his photo.

If legislation recently introduced in California passes, businesses with apps or websites requiring passwords and enabling Golden State residents younger than 18 to share content could be prohibited from asking those minors to agree to the site’s or the app’s terms and conditions of use.

After a lawyer was unable to serve process by delivering court documents to a defendant’s physical and email addresses, the Ontario Superior Court granted the lawyer permission to serve process by mailing a statement of claim to the defendant’s last known address and by sending the statement of claim through private messages to the defendant’s Instagram and LinkedIn accounts. This is reportedly the first time an Ontario court has permitted service of process through social media. The first instance that we at Socially Aware heard of a U.S. court permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a social media account happened back in 2014.

Videos that impose celebrities’ and non-famous people’s faces onto porn performers’ to produce believable videos have surfaced on the Internet, and are on the verge of proliferating. Unlike the non-consensual dissemination of explicit photos that haven’t been manipulated—sometimes referred to as “revenge porn”—this fake porn is technically not a privacy issue, and making it illegal could raise First Amendment issues.

By mining datasets and social media to recover millions of dollars lost to tax fraud and errors, the IRS may be violating common law and the Electronic Communications Privacy Act, according to an op-ed piece in The Hill.

A woman is suing her ex-husband, a sheriff’s deputy in Georgia, for having her and her friend arrested and briefly jailed for posting on Facebook about his alleged refusal to drop off medication for his sick children on his way to work. The women had been charged with “criminal defamation of character” but the case was ultimately dropped after a state court judge ruled there was no basis for the arrest.

During a hearing in a Manhattan federal court over a suit brought by seven Twitter users who say President Trump blocked them on Twitter for having responded to his tweets, the plaintiffs’ lawyer compared Twitter to a “virtual town hall” where “blocking is a state action and violates the First Amendment.” An assistant district attorney, on the other hand, analogized the social media platform to a convention where the presiding official can decide whether or not to engage with someone. The district court judge who heard the arguments refused to decide the case on the spot and encouraged the parties to settle out of court.

Have your social media connections been posting headshots of themselves alongside historical portraits of people who look just like them? Those posts are the product of a Google app that matches the photo of a person’s face to a famous work of art, and the results can be fun. But not for people who live in Illinois or Texas, where access to the app isn’t available. Experts believe it’s because laws in those states restrict how companies can use biometric data.

The stock market is apparently keeping up with the Kardashians. A day after Kim Kardashian’s half-sister Kylie Jenner tweeted her frustration with Snapchat’s recent redesign, the company’s market value decreased by $1.3 billion.

In U.S. copyright law circles, one of the hottest topics of debate is the degree to which the fair use doctrine—which allows for certain unauthorized uses of copyrighted works—should protect companies building commercial products and services based on content created by others, especially where such products or services are making transformative uses of such content.

This debate is likely to become even more heated in the wake of the Second Circuit Court of Appeals’ issuance last week of its long-awaited decision in the copyright dispute between Fox News and TVEyes, in which the court sided with the copyright owner over the creator of a digital “search engine” for identifying and viewing television content. But regardless of which side of the debate you are on (or if you are just standing on the sidelines), the court’s decision provides important guidance on the scope of the fair use doctrine as applied to commercial products and services.

The Dispute

Using the closed-captioning data that accompanies most television programming, TVEyes provides a searchable database of video clips. TVEyes’ subscribers—who pay $500 a month—can search the database for keywords in order to identify and view video clips from the service; such video clips may be as long as ten minutes in duration.

In July 2013, Fox sued TVEyes for copyright infringement and, in August 2015, Judge Hellerstein of the U.S. District Court for the Southern District of New York held that the key features of the TVEyes service are protected under the fair use doctrine. Continue Reading All Eyes on Fair Use: The Second Circuit Delivers a Victory for Copyright Owners

The music industry came out on top in one of its first attempts to hold an internet service provider liable for its subscribers’ unauthorized peer-to-peer file sharing.

The decision, handed down by the Fourth Circuit Court of Appeals in a dispute between BMG Rights Management and Cox Communications, outlines the obligations an ISP must fulfill to receive safe harbor protection under the Digital Millennium Copyright Act for a subscriber’s infringement. It also explains when an ISP can be held contributorily liable for its subscribers’ actions.

Read my full analysis here.

Following a recent decision from the Sixth Circuit, anonymous bloggers and other Internet users who post third-party copyrighted material without authorization have cause for concern. They may be unable to preserve their anonymity.

In Signature Management Team, LLC v. John Doe, the majority of a panel of the U.S. Court of Appeals for the Sixth Circuit established a new “presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff” in a copyright infringement case. This unmasking presumption is intended to protect the openness of judicial proceedings. Whether to unmask the defendant in such circumstances requires an examination of factors such as the plaintiff’s and public’s interest in knowing the defendant’s identity. Continue Reading Anonymous Internet Users Beware: New Presumption in Favor of Unmasking the Losing Anonymous Defendant

Happy 2018 to our readers! It has become a Socially Aware tradition to start the New Year with some predictions from our editors and contributors. With smart contracts on the horizon, the Internet of Things and cryptocurrencies in the spotlight, and a number of closely watched lawsuits moving toward resolution, 2018 promises to be an exciting year in the world of emerging technology and Internet law.

Here are some of our predictions regarding tech-related legal developments over the next twelve months. As always, the views expressed are not to be attributed to Morrison & Foerster or its clients.

From John Delaney, Co-Founder and Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding Web Scraping

Web scraping is an increasingly common activity among businesses (by one estimate, web-scraping bots account for as much as 46% of Internet traffic), and is helping to fuel the “Big Data” revolution. Despite the growing popularity of web scraping, courts have been generally unsympathetic to web scrapers. Last August, however, web scrapers finally received a huge victory, as the U.S. District Court for the Northern District of California enjoined LinkedIn from blocking hiQ Labs’ scraping of publicly available user profiles from the LinkedIn website in the hiQ Labs, Inc. v. LinkedIn Corp. litigation. The case is now on appeal to the Ninth Circuit; although my sense is that the Ninth Circuit will reject the broad scope and rationale of the lower court’s ruling, if the Ninth Circuit nevertheless ultimately sides with hiQ Labs, the web scraper, the decision could be a game changer, bringing online scraping out of the shadows and perhaps spurring more aggressive uses of scraping tools and scraped data. On the other hand, if the Ninth Circuit reverses, we may see companies reexamining and perhaps curtailing their scraping initiatives. Either way, 2018 promises to bring greater clarity to this murky area of the law.

Regarding the Growing Challenges for Social Media Platforms

2017 was a tough year for social media platforms. After years of positive press, immense consumer goodwill and a generally “hands off” attitude from regulators, last year saw a growing backlash against social media due to a number of reasons: the continued rise of trolling creating an ever-more toxic online environment; criticism of social media’s role in the dissemination of fake news; the growing concern over social media “filter bubbles” and “echo chambers”; and worries about the potential societal impact of social media’s algorithm-driven effectiveness in attracting and keeping a grip on our attention. Expect to see in 2018 further efforts by social media companies to get out ahead of most if not all of these issues, in the hopes of winning over critics and discouraging greater governmental regulation.

Regarding the DMCA Safe Harbor for Hosting of User-Generated Content

The backlash against social media noted in my prior item may also be reflected to some extent in several 2017 court decisions regarding the DMCA safe harbor shielding website operators and other online service providers from copyright damages in connection with user-generated content (and perhaps in the CDA Section 230 case law discussed by Aaron Rubin below). After nearly two decades of court decisions generally taking an ever more expansive approach to this particular DMCA safe harbor, the pendulum begun to swing in the other direction in 2016, and this trend picked up steam in 2017, culminating in the Ninth Circuit’s Mavrix decision, which found an social media platform provider’s use of volunteer curators to review user posts to deprive the provider of DMCA safe harbor protection. Expect to see the pendulum continue to swing in favor of copyright owners in DMCA safe harbor decisions over the coming year.

Regarding Smart Contracts

Expect to see broader, mainstream adoption of “smart contracts,” especially in the B2B context—and perhaps litigation over smart contracts in 2019 . . . .

From Aaron Rubin, Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding the CDA Section 230 Safe Harbor

We noted previously that 2016 was a particularly rough year for Section 230 of the Communications Decency Act and the immunity that the statute provides website operators against liability arising from third-party or user-generated content. Now that 2017 is in the rear view mirror, Section 230 is still standing but its future remains imperiled. We have seen evidence of Section 230’s resiliency in recent cases where courts rejected plaintiffs’ creative attempts to find chinks in the immunity’s armor by arguing, for example, that websites lose immunity when they use data analytics to direct users to content, or when they fail to warn users of potential dangers, or when they share ad revenue with content developers. Nonetheless, it is clear that the knives are still out for Section 230, including in Congress, where a number of bills are under consideration that would significantly limit the safe harbor in the name of combatting sex trafficking. I predict that 2018 will only see these efforts to rein in Section 230 increase. Continue Reading 2018: Predictions From Socially Aware’s Editors and Contributors

In the classic rock song “Light My Fire,” ‘60s icon and the Doors’ lead singer Jim Morrison sang, “The time to hesitate is through.”

If your company operates a website or blog that hosts user-generated content, and has yet to register an agent for receipt of copyright infringement notices under the U.S. Copyright Office’s new agent designation system, it’s time to light a fire. Failure to do so could significantly increase your company’s copyright liability exposure in connection with such hosted content.

Here’s what you need to know:

Under the Digital Millennium Copyright Act’s (DMCA) Section 512(c) safe harbor, website operators and other online service providers that comply with the eligibility requirements are shielded from copyright damages in connection with their hosting of infringing content uploaded by service users.

This powerful safe harbor has played a major role in the success of Facebook, Instagram, YouTube and other U.S. social media and Internet sites. But it also protects brands that host on their websites text, photos and videos uploaded by their customers. Continue Reading If Your Company’s Website Hosts User-Generated Content, Stop and Read This Post!

We discussed last year the trend toward companies seeking to monetize user-generated content. A recent Central District of California decision in Greg Young Publishing, Inc. v. Zazzle, Inc. serves as an important reminder of the serious risks that can arise from seeking to commercially exploit such content.

Under the Digital Millennium Copyright Act’s (DMCA) Section 512(c) safe harbor, online service providers that comply with the eligibility requirements are shielded from copyright damages in connection with their hosting of infringing content uploaded by service users. This powerful safe harbor has played a major role in the success of Facebook, Instagram, YouTube and other U.S. social media and Internet sites.

Continue Reading Zazzle Fizzles: Website Operator Denied Copyright Safe Harbor Protection for Its Sale of Physical Products Featuring User-Generated Images

With over one billion websites on the Internet, and 211 million items of online content created every minute, it should come as no surprise that content curation is one of the hottest trends in the Internet industry. We are overwhelmed with online content, and we increasingly rely on others to separate the good from the bad so that we can make more efficient use of our time spent surfing the web.

Consistent with this trend, many websites that host user-generated content are now focused on filtering out content that is awful, duplicative, off-topic, or otherwise of little interest to site visitors. And these sites often find that humans—typically passionate volunteers from the sites’ user communities—are better than algorithms at sorting the wheat from the chaff.

Of course, any website that deals with user-generated content needs to consider potential copyright liability arising from such content. We’ve discussed in past Socially Aware blog posts the critical importance of Section 512(c) of the Digital Millennium Copyright Act (the DMCA) to the success of YouTube, Facebook and other online platforms that host user-generated content. By providing online service providers with immunity from monetary damages in connection with the hosting of content at the direction of users, Section 512(c) has fueled the growth of the U.S. Internet industry. Continue Reading Could the Use of Online Volunteers and Moderators Increase Your Company’s Copyright Liability Exposure?