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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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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Social Links: Statehouse v. Smartphone

Federal Court Enjoins California Teen Privacy Law . . . Again

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It is likely no surprise to regular readers of Socially Aware that posting content to social media can, in some cases, <a href="https://www.mic.com/articles/192799/how-much-money-do-influencers-actually-make" target="_blank" rel="noopener">generate significant income</a>. But those who make their living on social media may find their livelihood threatened if they fail to comply with the law and with the relevant platform’s terms of use.For example, we often see trouble arise when social media users fail to follow the Federal Trade Commission’s <a href="https://www.sociallyawareblog.com/2018/03/06/ftc-quest-better-influencer-disclosure/" target="_blank" rel="noopener">disclosure rules</a> in connection with receiving compensation in exchange for a promotional post, or when users <a href="https://www.papermag.com/buying-instagram-followers-documentary-2638831238.html" target="_blank" rel="noopener">purchase followers</a>—a practice that violates most social media platforms’ terms of use, and <a href="https://www.cnet.com/news/selling-fake-followers-and-likes-is-illegal-landmark-settlement-finds/" target="_blank" rel="noopener">might be illegal</a>. As we have <a href="https://www.sociallyawareblog.com/2016/08/08/ninth-circuit-case-demonstrates-that-the-social-media-platform-not-the-user-is-in-control/" target="_blank" rel="noopener">noted previously</a>, the social media platform and not the user sets the rules. If your business model is built on a social media platform, you have play by the platform’s rules.Earning an honest living is what Instagram user “Ben” (the pseudonym <a href="https://www.marketwatch.com/story/instagrams-purge-of-meme-accounts-cost-this-teenager-his-only-income-of-4000-a-month-2019-08-07" target="_blank" rel="noopener">assigned to him by MarketWatch</a>) claims to have been doing when he was taking in approximately $4,000 per month by operating and curating several accounts containing memes originally created by third parties. (For those who have somehow managed to avoid this ubiquitous Internet phenomenon, <a href="https://en.wikipedia.org/wiki/Internet_meme" target="_blank" rel="noopener">Wikipedia describes</a> a meme as a “piece of media that spreads, often . . . for <a href="https://en.wikipedia.org/wiki/Humour" target="_blank" rel="noopener">humorous purposes</a>, from person to person via the Internet.” The article at <a href="https://www.lifewire.com/what-is-a-meme-2483702" target="_blank" rel="noopener">this link</a> contains some examples.)One of Ben’s accounts had more than 500,000 followers who, apparently, enjoyed the memes that Ben found on the Web and selected for reposting on Instagram. Ben leveraged that following by advertising other users’ pages on his account. But one day in July 2019, Ben’s cash flow dried up when Instagram banned his meme accounts and many similar accounts because, according to Instagram, those accounts violated the platform’s terms of use by—among other transgressions—posting memes without authorization from the original creators of that content.Then, in early August 2019, Instagram changed course, attempting to smooth things over with the increasingly influential meme community by announcing its intention to <a href="https://www.theatlantic.com/technology/archive/2019/08/instagram-hiring-meme-liaison/595552/" target="_blank" rel="noopener">hire a strategic-partnerships manager dedicated to meme accounts</a>—a “meme liaison” of sorts.One of the issues the person who fills that position will have to navigate is the fact that meme account owners regularly post third-party content—i.e., memes originally created by others—and meme account owners don’t think such posting of third-party memes should be against Instagram’s terms of use. After all, meme account holders like Ben presumably grew their large followings by having an eye for the type of content that resonates with people, even if those account holders don’t create that content themselves.Instagram’s head of news and publishing partnerships, Lila King, seems to appreciate the merits of this argument, <a href="https://www.theatlantic.com/technology/archive/2019/08/instagram-hiring-meme-liaison/595552/" target="_blank" rel="noopener">telling The Atlantic</a> that “curation is a kind of creation.” That might be true, but—as <a href="https://slate.com/technology/2019/08/copyright-law-meme-accounts-instagram-reposts.html" target="_blank" rel="noopener">Slate points out</a>—“whether that holds up under copyright law is up for debate.”The copyright questions raised by meme accounts are many and varied, and considerations such as <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/">fair use</a> and implied license could come into play. It is also worth noting that many of the memes that appear on meme accounts are themselves derived from preexisting copyrighted content, such as film stills and photographs. In other words, as much as Ben may have appropriated memes created by third parties to populate his meme account, those third-party creators themselves also depend on content owned by others.Exploration of these issues will have to wait for another post, but rest assured that we will be keeping a close eye on this developing story.

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 Rubin

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The Meme Generation: Social Media Platforms Address Content Curation

The Meme Generation: Social Media Platforms Address Content Curation

It is likely no surprise to regular readers of Socially Aware that posting content to social media can, in some cases, generate significant income. But those wh

Advancements in technology appear to have spurred the Federal Trade Commission to initiate a review of its rule promulgated pursuant to the Children’s Online Privacy Protection Act (the “COPPA Rule” or “Rule”) four years ahead of schedule. Last week, the FTC published a Federal Register <a href="https://www.govinfo.gov/content/pkg/FR-2019-07-25/pdf/2019-15754.pdf" target="_blank" rel="noopener">notice</a> seeking comments on the Rule. Although the FTC typically reviews a rule only once every 10 years and the last COPPA Rule review ended in 2013, the Commission unanimously voted 5-0 to seek comments ahead of its next scheduled review. The Commission cited the education technology sector, voice-enabled connected devices, and general audience platforms hosting third-party, child-directed content as developments warranting reexamination of the Rule at this time.BackgroundThe COPPA Rule, which first went into effect in 2000, generally requires operators of online services to obtain verifiable parental consent before collecting personal information from children under the age of 13.  In 2013, the FTC amended the COPPA Rule to address changes in the way children use and access the internet, including through the increased use of mobile devices and social networking.  Its amendments included the expansion of the definition of “personal information” to include persistent identifiers that track online activity, geolocation information, photos, videos, and audio recordings. The new review could result in similarly significant amendments.Questions for Public CommentIn addition to standard questions about the effectiveness of the COPPA Rule and whether it should be retained, eliminated, or modified, the FTC is seeking comment on all major provisions of the Rule, including its definitions, notice and parental consent requirements, exceptions, and security requirements.The Federal Register notice poses 29 wide-ranging questions for public comment, including:<ul><li>Should general audience platforms that have large numbers of child users be subject to the COPPA Rule?  In other words, should the COPPA Rule be amended to address online services that do not meet the current definition of “web site or online service directed to children” but that have large numbers of child users?</li><li>Should the COPPA Rule be modified to encourage general audience platforms to identify and police child-directed content uploaded by third parties? For example, should such platforms be able to rebut the presumption that all users interacting with child-directed content are children, thereby allowing them to collect personal information from users who are 13 or older?</li><li>Should the COPPA Rule expressly address behavioral targeting, profiling, and advertising? Information processing to support the internal operations of an online service is exempt from the Rule’s parental consent obligation. Should “support for internal operations” be modified to (1) expressly exclude practices such as behavioral targeting and profiling or (2) add certain permitted activities, such as advertising attribution?</li><li>Should the definition of “personal information” be expanded? Presumably to keep pace with the rise of “big data” and the collection of biometric information, the Commission asks whether the definition should be expanded to include personal information that is inferred about, but not directly collected from, children and biometric information (e.g., fingerprints, retinal patterns).</li><li>Should the COPPA Rule be more specific about the appropriate methods for determining the age of users? In other words, would additional guidance regarding age screening result in stronger protections for children’s privacy?</li><li>Should methods of obtaining verifiable parental consent be added to or removed from the Rule?</li><li>Should there be additional exceptions to prior parental consent? The FTC is particularly interested in comments on exceptions for (1) the use of education technology, where the school provides consent for the collection of personal information from children, and (2) the collection of audio files containing a child’s voice as a replacement for text, where the audio files are promptly deleted.</li><li>Should the Rule include more specific information security requirements, such as requiring encryption of certain personal information?</li><li>What are the implications for COPPA enforcement raised by technologies such as interactive television, interactive gaming, or other similar interactive media?</li></ul>The FTC’s questions evince awareness of technological developments since the FTC’s last review in 2013 and reflect a concern for how to apply COPPA protections when children under 13 are increasingly agile with technology and may visit websites and online services that are targeted to a general audience. The questions further evidence the Commission’s exploration of how to employ modern technological capabilities in COPPA compliance, including through up‑to-date solutions for age screening and information security. Ultimately, the FTC’s notice shows the FTC’s continued commitment to children’s privacy matters, suggesting more frequent review of the COPPA Rule if necessary to keep pace with technological advances and potentially increased activity in this sphere.How to Submit a CommentComments can be submitted on or before October 23, 2019. Comments may be submitted online at <a href="https://www.regulations.gov/" target="_blank" rel="noopener">https://www.regulations.gov</a> or sent by mail to the address listed in the Federal Register notice.The FTC will hold a <a href="https://www.ftc.gov/news-events/events-calendar/future-coppa-rule-ftc-workshop" target="_blank" rel="noopener">public workshop</a> on October 7, 2019, to examine the COPPA Rule.The FTC’s press release announcing the request for public comment is available <a href="https://www.ftc.gov/news-events/press-releases/2019/07/ftc-seeks-comments-childrens-online-privacy-protection-act-rule?utm_source=govdelivery" target="_blank" rel="noopener">here</a>.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Back to School Early: FTC Seeks Comments to COPPA Rule Ahead of Schedule