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.

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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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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)

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Here at Socially Aware we covered a wide range of issues in 2019. We reviewed an opinion reminding us that <a href="https://www.sociallyawareblog.com/2019/03/22/whats-in-a-username/" target="_blank" rel="noopener">user-generated content posted on social media platforms is not necessarily freely available for use in other contexts</a>, and a rare instance of a federal district court holding that <a href="https://www.sociallyawareblog.com/2019/11/04/just-browsing-district-court-finds-browsewrap-agreement-enforceable/" target="_blank" rel="noopener">a browsewrap agreement was enforceable</a>.We also examined some aspects of Internet law in Europe, including the legality of <a href="https://www.sociallyawareblog.com/2019/03/14/cookie-wall-legality-in-the-eu/" target="_blank" rel="noopener">using “cookie walls” in the European Union</a>, and the <a href="https://www.sociallyawareblog.com/2019/05/15/the-eu-copyright-directive-passes-but-member-states-remain-split-on-upload-filters/" target="_blank" rel="noopener">EU Copyright Directive’s impact</a> on content-sharing service providers’ liability for copyright-infringing content.And, as <a href="https://www.sociallyawareblog.com/2018/08/22/section-230-survives-to-fight-another-day-following-california-supreme-court-decision/">we’ve done in past years</a>, we revisited the scope of the “safe harbor” that Section 230 of the Communications Decency Act provides <a href="https://www.sociallyawareblog.com/2019/09/05/safe-harbor-in-section-230-of-the-communications-decency-act-applies-to-wide-variety-of-claims/" target="_blank" rel="noopener">again</a>, <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener">again</a>, and <a href="https://www.sociallyawareblog.com/2019/04/30/appeals-court-upholds-section-230-protections-in-case-against-grindr/" target="_blank" rel="noopener">again</a>.But none of those topics—except the CDA’s Section 230—are on our list of the top-ten most read articles of 2019. Here are the pieces that made the cut:<ol><li><a href="https://www.sociallyawareblog.com/2019/09/11/general-audience-google-youtube-to-pay-170-million-for-alleged-coppa-violations/" target="_blank" rel="noopener">The Company Who Cried “General Audience”: Google and YouTube to Pay $170 Million for Alleged COPPA Violations</a></li><li><a href="https://www.sociallyawareblog.com/2019/04/05/how-to-comply-with-the-revised-ephemeral-messaging-provision-in-the-fcpas-corporate-enforcement-policy/" target="_blank" rel="noopener">How to Comply with the Revised Ephemeral-Messaging Provision in the DOJ’s Corporate Enforcement Policy</a></li><li><a href="https://www.sociallyawareblog.com/2019/08/02/by-winning-motion-to-dismiss-supermodel-loses-chance-to-clarify-whether-she-can-lawfully-post-photos-of-herself-to-social-media/" target="_blank" rel="noopener">By Winning Motion to Dismiss, Supermodel Loses Chance to Clarify Whether She Can Lawfully Post Photos of Herself to Social Media</a></li><li>Will the Music Industry Continue To Win Its Copyright Battle Against ISPs?</li><li><a href="https://www.sociallyawareblog.com/2019/03/06/copyright-infringement-on-user-generated-platforms-when-is-the-platform-provider-liable-for-damages/" target="_blank" rel="noopener">Time to Hit Pause: Copyright Infringement on User-Generated Platforms – When Is the Platform Provider Liable for Damages?</a></li><li><a href="https://www.sociallyawareblog.com/2019/08/20/the-meme-generation-social-media-platforms-address-content-curation/" target="_blank" rel="noopener">The Meme Generation: Social Media Platforms Address Content Curation</a></li><li><a href="https://www.sociallyawareblog.com/2019/07/23/court-holds-that-arbitration-clause-in-hybridwrap-terms-is-unenforceable/" target="_blank" rel="noopener">Court Holds That Arbitration Clause in “Hybridwrap” Terms Is Unenforceable</a></li><li><a href="https://www.sociallyawareblog.com/2019/10/09/insta-mural-infringement-public-art-in-instagram-ad-leads-to-copyright-claim/" target="_blank" rel="noopener">Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim</a></li><li><a href="https://www.sociallyawareblog.com/2019/06/27/california-court-finds-section-230-protects-decision-to-suspend-and-ban-twitter-account/" target="_blank" rel="noopener">California Court Finds Section 230 Protects Decision to Suspend and Ban Twitter Account</a></li><li><a href="https://www.sociallyawareblog.com/2019/09/17/ninth-circuits-linkedin-decision-does-not-greenlight-the-unauthorized-web-scraping-of-public-websites/" target="_blank" rel="noopener">Ninth Circuit’s LinkedIn Decision Does Not Greenlight the Unauthorized Web Scraping of Public Websites</a></li></ol>

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2019: Our Greatest Hits

Here at Socially Aware we covered a wide range of issues in 2019. We reviewed an opinion reminding us that user-generated content posted on social media platfor

2019: Our Greatest Hits

A random Twitter account tags a Japanese company and badmouths it in a series of tweets. Because the tweets are tagged, a search of the company’s name on Twitter will display the tweets with the negative comments among the search results. Upset over the tweets, the Japanese company wants to sue the tweeter in Japan. But how can it? The tweeter has not used his real name.This is where discovery under <a href="https://www.law.cornell.edu/uscode/text/28/1782" target="_blank" rel="noopener">28 U.S.C. § 1782</a> can help. Section 1782 provides a vehicle for companies or individuals seeking U.S. discovery in aid of foreign litigation—even if the litigation is merely contemplated and not yet commenced. Specifically, Section 1782 provides that a federal district court may grant an applicant the authority to issue subpoenas in the United States to obtain documents or testimony, including documents or testimony seeking to unmask an anonymous Internet poster to pursue defamation claims abroad.To pursue Section 1782 discovery, an applicant needs to establish:<ul><li>that the requested discovery is for use in an actual or contemplated proceeding in a foreign or international tribunal;</li><li>that the applicant is an “interested person” in that proceeding; and</li><li>that the person from whom the discovery is sought resides or is found in the district of the court where the applicant is making the application.</li></ul>If the applicant satisfies all of these factors, a district court has the discretion to grant or deny the application after considering the following factors, which the U.S. Supreme Court established in <a href="https://casetext.com/case/intel-corp-v-advanced-micro-devices-inc-4?page=267&sort=relevance&q=542%20U.S.%20241&p=1&tab=keyword&jxs=&type=case" target="_blank" rel="noopener">Intel Corp. v. Advanced Micro Devices Inc.</a>:<ul><li>whether the discovery sought is within the foreign tribunal’s jurisdictional reach and, thus, accessible without Section 1782 aid;</li><li>the nature of the foreign tribunal, the character of the proceedings underway abroad and the receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial assistance;</li><li>whether the applicant’s request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and</li><li>whether the request is unduly intrusive or burdensome.</li></ul>For an applicant to obtain discovery under Section 1782, it does not need to meet all four factors. Also, no one factor is dispositive.Recently, judges in the U.S. District Court for the Northern District of California—which has jurisdiction over Twitter because that tech company is headquartered in San Francisco—dealt with two cases in which Japanese parties sought to unmask malicious tweeters. The cases are <a href="https://casetext.com/case/in-re-ex-parte-application-of-yasuda" target="_blank" rel="noopener">In re Yuichiro Yasuda</a> and <a href="https://cases.justia.com/federal/district-courts/california/candce/3:2019mc80139/342836/21/0.pdf?ts=1574760665" target="_blank" rel="noopener">In re PGS Home Co.</a> In both cases, Twitter resisted discovery and moved to quash or modify subpoenas, citing, among other things, the First Amendment right to freedom of speech. In both cases, the courts found that the applicants had met the three statutory factors. Thus, the judges had the discretion to allow discovery to proceed. Each case boiled down to an analysis of the fourth Intel factor: whether the discovery requests were unduly intrusive or burdensome. On that question, the judges reached different conclusions.In both cases, the judges noted <a href="https://www.courtlistener.com/opinion/182446/in-re-anonymous-online-speakers/" target="_blank" rel="noopener">U.S. courts’ general recognition</a> of the importance of anonymous speech, noting that “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without ‘fear of economic or official retaliation . . . [or] concern about social ostracism.’”Both judges noted that, in the context of Section 1782 discovery requests, courts have held that the First Amendment protects an anonymous speaker from being unmasked unless the applicant:<ul><li>identifies the missing defendant with sufficient specificity such that the court can determine that it is a real person subject to a lawsuit;</li><li>identifies all previous steps taken to locate and identify the elusive defendant;</li><li>demonstrates that the action against defendant can withstand a motion to dismiss; and</li><li>proves that the discovery is likely to lead to the identification of the defendant such that service of process would be possible.</li></ul>In In re Yuichiro Yasuda, the court found that the applicant satisfied all four requirements for good cause to permit Section 1782 discovery to unmask an anonymous tweeter. The court’s inquiry ended there. The judge denied Twitter’s motion to quash.However, a month later, in In re PGS Home Co., the court granted Twitter’s motion to quash because it found the applicant’s allegations would not survive a motion to dismiss. The court also found that unmasking the speaker would have a potential chilling effect on First Amendment liberties that would outweigh the harm the applicant would suffer from withholding the requested discovery.In Yasuda, the anonymous tweeter posted statements claiming a Japanese physician had sexual relations with a female patient who was in high school, which led to the patient’s attempted suicide. This was all tweeted on the page of a well-known radio DJ with over 10,000 followers. Thus, the judge did not have to dig deeply into Japanese law to conclude that, if false, the claim was likely actionable.In PGS, the anonymous tweeter claimed a Japanese construction company asked to be paid for work it did not perform and treated customers like complainers. Each of these comments came with a hashtag identifying the company. The court did not feel that was enough evidence to conclude the applicant’s claims could survive a motion to dismiss. Oddly, the judge, without explanation, appears to have evaluated whether the claim would survive a motion to dismiss a defamation claim under California law, rather than Japanese law.Although Twitter raised a potential chilling effect under the First Amendment in both cases, only the PGS court went on to address the issue. To weigh the potential chilling effect, courts in the district apply a two-part test:<ul><li>whether there is a “real evidentiary basis” for believing that the anonymous speaker has engaged in wrongful conduct that caused real harm to the party seeking discovery; and</li><li>if the threshold requirement outlined above is met, weighing the harm resulting from an order requiring disclosure compared to the harm resulting from an order denying the request.</li></ul>In PGS, the court concluded that the applicant failed to show a “real evidentiary basis” that the tweets caused real harm. The court found the statements and accusations to be nothing more than a simple “rant” by a dissatisfied customer. The court held that even if the tweets did cause real harm, the harm is outweighed by the First Amendment concerns.Interestingly, neither court addressed the nationality of the anonymous tweeters. In both of these cases, the statements were made in Japanese and targeted a Japanese individual or company. It seems quite likely that the anonymous posters are Japanese nationals living in Japan. <a href="https://www.courtlistener.com/recap/gov.uscourts.cand.336935/gov.uscourts.cand.336935.18.0.pdf" target="_blank" rel="noopener">One court has recently held</a> that that the First Amendment protects the anonymous speech of foreign nationals on the basis that free speech protects the audience as well as the speaker, but there is scant case law on this question. Also, <a href="https://www.eff.org/deeplinks/2019/05/reddit-commenters-fight-anonynmity-win-free-speech-and-fair-use" target="_blank" rel="noopener">that case involved an anonymous Reddit poster</a> who directed his criticism of the Jehovah’s Witnesses to a U.S. audience. Section 1782 applicants may still argue that First Amendment protections for anonymous speech should not apply to an individual who presumably lives in Japan and posted comments in Japanese that are alleged to have defamed a Japanese company under Japanese law. In other words, other than the use of Twitter’s platform, everything else, including the audience, has no connection with the United States.Because of the high concentration of social media and other Internet companies in the Bay Area, one can assume that these will not be the last cases filed in the Northern District of California using Section 1782 to unmask anonymous Internet posters. We will see how the law develops in this area.

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J. Alexander Lawrence

Foreign Companies Can Use 28 U.S.C. § 1782 to Unmask Anonymous Internet Posters