Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Federal Court Enjoins California Teen Privacy Law . . . Again

All Your Sale Are Belong to Us - Mitigating IP and Payments Risk in In-Game Economies (Part II – User-Generated Content and In-Game Payment Models)

A New California Digital Content Law Establishes New Requirements for Advertisers and Vendors

California’s Assembly Bill 587 Loses Key Provisions After Legal Challenge from X

Social Links: TikTok Tussles, Teen Privacy Push, and the Thumbs-Up That Sealed the Deal

In an attempt to shut down free speech online, Turkey enacted a law that requires social media platforms with more than a million daily users in Turkey to open an office there or assign a representative who is legally accountable to Turkish authorities. Among other things, the law also requires companies to respond within two days to complaints about posts that “violate personal and privacy rights.” <a href="https://www.theguardian.com/world/2020/sep/27/its-a-war-on-words-turks-fear-new-law-to-muzzle-social-media-giants" target="_blank" rel="noopener noreferrer">Learn what social media companies risk</a> if they don’t comply.Significantly deviating from his former choices for FCC Commissioner, President Trump nominated Nathan Simington to replace current Republican Commissioner Mike O’Reilly. Unlike previous nominees, who were not heavily involved in technology policy, Simington “played a significant role in drafting” an order instructing the FCC to limit Section 230 of the Communications Decency Act’s protections for technology companies, according to The Verge. Find out <a href="https://www.theverge.com/2020/9/15/21438820/fcc-donald-trump-nominate-nathan-simington-commissioner-social-media-section-230-order" target="_blank" rel="noopener noreferrer">why Trump revoked O’Reilly’s nomination for a third term</a>.Spending on advertising in general plummeted in Q2 of 2020 compared to the same quarter last year, with newspaper ad spend dropping by nearly 50% and radio ad spend dropping by about 42%. On the other hand, the dip in social media ad spend was far less significant. Analysts attribute advertisers’ continued interest in social media to COVID-19, saying that social media use skyrocketed during quarantine. <a href="https://www.mediapost.com/publications/article/356423/q2-ad-spending-analysis-reveals-major-share-increa.html?utm_source=newsletter&utm_medium=email&utm_content=headline&utm_campaign=119982&hashid=icw4eEcCBUZXM8pArHBIb_YN6sc" target="_blank" rel="noopener noreferrer">Find out how little social media’s advertising revenue dropped</a> in Q2 2020.Some of YouTube’s top earners are children. France just passed a law to limit the hours they work and place their earnings in a bank account until they turn 16. You won’t believe <a href="https://www.bbc.com/news/world-europe-54447491" target="_blank" rel="noopener noreferrer">the staggering amounts of cash some of these kids rake in</a>.Harvard Law School has a new social media policy precluding students from posting statements made in class together with enough information to make the speaker identifiable by someone who was not present in class. <a href="https://www.abajournal.com/news/article/harvard-law-introduces-social-media-policy-about-classroom-statements" target="_blank" rel="noopener noreferrer">Learn the school’s reason</a> for implementing this new policy.A private investigator in Sacramento, California—where a new law classifies COVID-19 as an “injury” under workers’ compensation when certain circumstances apply—is <a href="https://gooddaysacramento.cbslocal.com/2020/09/22/employers-private-investigators-employees-covid-19-work/" target="_blank" rel="noopener noreferrer">using people’s social media posts as evidence</a> that they didn’t contract COVID-19 at work.“<a href="https://mashable.com/article/doomswiping-doomscrolling-dating-apps/?utm_source=webpush&utm_medium=notification" target="_blank" rel="noopener noreferrer">Doomswiping</a>” is the latest dating-app trend.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Turkey’s new social media law; social media ad spend; Harvard Law School’s social media policy

In an attempt to shut down free speech online, Turkey enacted a law that requires social media platforms with more than a million daily users in Turkey to open 

Turkey’s new social media law; social media ad spend; Harvard Law School’s social media policy

The USPTO recently released the report <a rel="noopener noreferrer" target="_blank" href="https://www.uspto.gov/sites/default/files/documents/USPTO_AI-Report_2020-10-05.pdf">“Public Views on Artificial Intelligence and Intellectual Property Policy”</a>. The report is part of the USPTO’s effort to engage with the innovation community and experts on AI and to promote innovation of AI through appropriate intellectual property incentives.The report includes the analysis of nearly 200 responses received from individuals and organizations to federal notices published in August and October 2019 to solicit public comments on patenting AI inventions and the impact of AI on other areas of intellectual property policy. The USPTO requested feedback on issues such as whether current laws and regulations regarding patent inventorship and authorship of copyrighted work should be revised to take into account contributions other than by natural persons.AI in Evolution. As an initial matter, commenters noted that AI has no universally recognized definition, and any definition used as part of an AI policy must be dynamic enough to evolve as AI technology evolves. Some suggested that the USPTO revisit the question of non-human inventions when artificial general intelligence (AGI)—AI that mimics human intelligence—is a reality and not just “purely hypothetical.”Sufficient and Not Necessary. The majority of respondents took the view that current U.S. IP laws provide sufficient protection for development using current AI technology. To many, existing contract law principles can be used to adequately fill in any gaps as AI technology further advances. Generally, commentators were divided on the need for new intellectual property rights to address AI inventions. Those focusing on new protections were focused mostly on data, with some suggesting that advances in AI should warrant more protection for data rights, including sui generis protection.Human Not Machine Inventors. With respect to patents, commenters agreed in large part that, for now, humans, not machines, must be inventors. Further, most agreed that only a natural person or a company, through an assignment, should be considered the owner of a patent or an invention, although some suggested extending ownership to those who train an AI process or own or control an AI system. Other respondents were concerned on the practical effects of recognizing non-natural inventors, e.g., how would a machine sign an oath?Impact on Patentability. Many commenters thought that AI-related inventions were not different than other computer-implemented inventions that are patent-eligible. Commenters were divided, however, on whether the growing presence of AI would affect the legal hypothetical standard of a “person having ordinary skill in the art”, i.e. the reference used to evaluate whether an invention is obvious. Another focus was the need for adequate disclosure and the unique challenges given the “black box” nature of certain AI algorithms that do not produce predictable results.No Right to Copyright. The request for comment asked whether a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, should qualify as a work of authorship protectable under U.S. copyright law. Most said no, with one respondent noting that AI is a “tool, similar to other tools that have been used in the past to create works.” A minority suggested that creative works made by AI without human authorship should still be copyrightable—with the owner/controller of the AI system or the person who fixes the work in its final form as author. To most, authorship required human creativity.Paying for Ingestion. The report also tackles the issue of mass digitization and text and data mining (TDM), noting that it “may be considered copyright infringement or fair use, depending on the facts and circumstances at issue.” While commentators considered the doctrine of fair use to be flexible enough to address the issue, some commentators suggested new mechanisms should be created to address licensing and compensation for use of digitized content for purposes of machine learning (ML) and ingestion.Likelihood of Confusion. The request asked for comments on whether AI will impact trademark law. In this area, commentators were less animated. Most said that either the use of AI software would not impact trademark law or that the existing legal framework for trademarks is adequate. But some did comment that the effect of bias in algorithms should be accounted for if used in the registration process and that voice-activated applications to assist with registration could lead to a focus on phonetic similarity between marks.Trade Secret Protection or Not. The report also touches on the importance of trade secret law to protect AI innovations and big data. Commentators acknowledged the limitations of trade secret law where collaboration and innovation require data sharing and where the use of AI could enable the discovery of information historically maintained in secrecy. Even so, commentators were not clamoring for changes to trade secret laws.The report highlights many of the concerns raised around AI and IP rights as the technology of AI evolves. The USPTO intends to use the report to direct its focus on specific issues to further explore in connection with IP rights for related AI. Expect to hear more as AI continues to evolve.

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Tessa J. Schwartz, partner, has extensive experience in complex intellectual property and technology law, copyright law, and patent litigation. Tessa is also the founder and co-chair of the firm’s Artificial Intelligence Group.

Tessa Schwartz

In the Public Eye: USPTO Issues Report on AI