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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Lawrence W. Gallick

Social Links: Statehouse v. Smartphone

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

As part of a new tracking system, the Department of Homeland Security will be<a href="http://www.huffingtonpost.com/entry/dhs-immigrant-social-media_us_59ccb13ee4b0210dfdfc2591" target="_blank" rel="noopener noreferrer"> keeping records of immigrants’ social media handles and search results</a>.Russia to Facebook: <a href="http://www.newsweek.com/russia-threatening-close-facebook-it-did-linkedin-671263" target="_blank" rel="noopener noreferrer">Turn over user-information</a> or risk being blocked.<a href="https://www.wsj.com/articles/google-offers-hand-to-news-publishers-1506916861" target="_blank" rel="noopener noreferrer">Google is ending a policy</a> that required news sites to allow users at least one free article-click.A new social media platform called <a href="https://steemit.com/" target="_blank" rel="noopener noreferrer">Steemit</a> will <a href="https://www.wired.com/story/the-social-network-doling-out-millions-in-ephemeral-money" target="_blank" rel="noopener noreferrer">pay users in cryptocurrency</a> for posting, commenting, or liking content—and its market capitalization is around $294 million.Not everyone is a fan of <a href="https://venturebeat.com/2017/10/03/bye-140-character-limit-twitters-new-280-character-tweets-work-fine-for-me/" target="_blank" rel="noopener noreferrer">Twitter’s new 280-character limit</a>.A type of biometric payment system that <a href="http://www.bbc.com/news/technology-41346717" target="_blank" rel="noopener noreferrer">identifies a checking or credit account owner based on the unique vein-pattern in his or her fingertip</a> would allow consumers to shop without cash, cards or devices.Initial coin offerings (ICOs) are allowing startups that develop applications for blockchain technology <a href="https://www.wsj.com/articles/how-blockchain-and-icos-are-changing-the-funding-game-for-startups-1506304861" target="_blank" rel="noopener noreferrer">to raise money without giving up the equity or decision-making power</a> they would have to surrender to venture capitalists.In this Wired op-ed, a former prisoner argues that <a href="https://www.wired.com/story/inmates-need-social-media-take-it-from-a-former-prisoner/" target="_blank" rel="noopener noreferrer">allowing inmates controlled social media use</a> might reduce recidivism and help the cell phone contraband problem.Young kids are the new social media celebrities—and <a href="https://www.nytimes.com/2017/09/27/style/viral-toddler-videos.html" target="_blank" rel="noopener noreferrer">the law isn’t clear</a> on whether they’re owed any of the money that their parents collect as a result of the viral videos.When a social media celebrity famous for posting photos of herself posing in fitness gear changed the direction of her Instagram account to one that promotes body acceptance, <a href="http://nypost.com/2017/09/19/woman-lost-70k-followers-after-she-stopped-posting-fitness-pics/" target="_blank" rel="noopener noreferrer">she initially lost 70,000 followers</a>, but she ultimately wound up with more fans than ever.Kudos to Netflix’s in-house counsel for crafting <a href="https://www.theatlantic.com/business/archive/2017/09/netflix-cease-and-desist-stranger-things/540579/" target="_blank" rel="noopener noreferrer">a cease-and-desist letter</a> for brand marketing in the modern age.

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

Social Links: Russia’s threat to block Facebook; Google’s publisher-friendly move; a cease-and-desist letter worth emulating

As part of a new tracking system, the Department of Homeland Security will be keeping records of immigrants’ social media handles and search results. Russia to 

Social Links: Russia’s threat to block Facebook; Google’s publisher-friendly move; a cease-and-desist letter worth emulating

Recently, the “trolley problem,” a decades-old thought experiment in moral philosophy, has been enjoying a second career of sorts, appearing in nightmare visions of a future in which cars make life-and-death decisions for us. Among many driverless car experts, however, talk of trolleys is très gauche. They call the trolley problem sensationalist and irrelevant. But this attitude is unfortunate. Thanks to the arrival of <a href="https://www.wired.com/tag/self-driving-cars/" target="_blank" rel="noopener noreferrer">autonomous vehicles</a>, the trolley problem will be answered—that much is <a href="https://www.wired.com/2015/03/a-self-driving-car-might-decide-you-should-die/" target="_blank" rel="noopener noreferrer">unavoidable</a>. More importantly, though, that answer will profoundly reshape the way law is administered in America.To understand the trolley problem, first consider this scenario: You are standing on a bridge. Underneath you, a railroad track divides into a main route and an alternative. On the main route, 50 people are tied to the rails. A trolley rushes under the bridge on the main route, hurtling towards the captives. Fortunately, there’s a lever on the bridge that, when pulled, will divert the trolley onto the alternative route. Unfortunately, the alternative route is not clear of captives, either — but only one person is tied to it, rather than 50. Do you pull the lever?Now, consider this: Once again, you are on a bridge underneath which passes a railroad track to which 50 people are tied. This time, however, there is only one track and you notice the trolley sooner, about a mile behind you. Next to you on the bridge is a heavy man, leaning precariously over the railing. A terrible thought comes to mind — you could easily push the man onto the track. When the trolley struck him it would stop, sparing the lives of the 50. Do you push the heavy man?There are no right or wrong answers here. The problem, rather, arises from the fact that many people say they would, regretfully, pull the lever, but then recoil at pushing the heavy man. It is difficult to identify a moral principle that would both be acceptable to most people (i.e., they would not object to its consistent application in all scenarios) and simultaneously justify each of the foregoing postures. For example, if your guiding principle is to minimize casualties, there should be no meaningful distinction between killing a person by pushing as opposed to pulling. Still, we all can acknowledge that something about pushing the heavy man feels different — it feels closer to murder. The trolley problem highlights a troubling possibility: that our moral intuitions are governed as much by arbitrary, or superficial, factors as they are by well-considered principles.It’s not hard to see the parallels with a road scenario in which, say, swerving to avoid an auto collision means crashing into a crowd of café patrons. But many experts have been quick to point out that trolley problem scenarios are already rare occurrences; driverless tech, which promises to be safer than any human operator, will only make them more so. Impeding the spread of a technology that could yield innumerable benefits over such fears would be hysterical, they claim.This response has merit, but its narrow focus on automotive safety ignores a broader issue: The trolley problem pervades American jurisprudence. Among other things, the most common role of a civil jury is to determine whether a defendant’s actions, in shifting costs and risks from one party to another, were reasonable. To make these determinations, juries are usually instructed to apply a rough-and-ready mathematical formula known as the Hand rule (styled after an early 20th century century judge named — yes, really! — Learned Hand) that balances the interests of those who were affected by the defendant’s actions — the quintessence of trolley problem scenarios. Of course, you don’t need to be a lawyer to read that and spot the inconsistency: If we can find the right answer by simply plugging values into an equation, then why do we even need juries?The truth is that the Hand rule, while providing an acceptable answer most of the time, will sometimes provide one that is atrocious. It can fail because, again, our moral intuitions are not always satisfied by adherence to loftier principles. When that happens, the legal system relies upon juries to find some wiggle room in the equation and return a verdict that is compatible with the public’s common sense of justice.With driverless cars, however, there can be no wiggle room. Like any computer, a driverless car will not do anything unless instructed. A programmer can’t simply give it instructions for most scenarios and avoid thinking about edge cases. At the same time, a driverless car must make decisions within a fraction of a second. There is no opportunity to present the circumstances to an external, human “road jury” for review. Thus, the instructions must stand on their own merits. Someone will have to propose (or, at least, accept when an <a href="https://www.wired.com/2016/06/self-driving-cars-will-power-kill-wont-conscience/" target="_blank" rel="noopener noreferrer">algorithm proposes</a>) an explicit, unambiguous rule for when to pull the lever, push the heavy man, or swerve into the café. Society must take the trolley problem seriously not because driverless cars shouldn’t be fielded until it is solved, but because driverless cars will compel a solution — and the values embodied by that solution will likely be adopted across a number of important civic arenas, including the law.But who, then, can be relied upon to solve the trolley problem prudently? At least one academic has <a href="https://www.wired.com/2017/05/autonomous-vehicles-trolley-problem/" target="_blank" rel="noopener noreferrer">argued</a> that lawyers will come to the rescue. The problem with this notion is that lawyers have spent the better part of our profession’s history running away from providing definitive answers to difficult problems. Attorneys have even invented an adage to make this abrogation seem responsible: “Hard cases make bad law,” it’s said. In truth, the lawyers-will-save-us argument has the direction of causality backwards: The impact of the law will not be felt upon the trolley problem; rather, the impact of the trolley problem, and its solution, will be felt upon the law — for example, in how juries are instructed to determine whether someone behaved reasonably.It’s tempting to hope that someone else will come along and solve the trolley problem. After all, finding a solution requires confronting some uncomfortable truths about one’s moral sensibilities. Imagine, for instance, that driverless cars are governed by a simple rule: minimize casualties. Occasionally, this rule may lead to objectionable results — e.g., mowing down a mother and her two children on the sidewalk rather than hitting four adults who have illegally run into the street. So, the rule might be augmented with a proviso: Minimize casualties, unless one party put itself in danger.But what if the choice is between four jaywalking men and three jaywalking mothers — or four jaywalking mothers, or simply four jaywalking women? Reasonable people could disagree over what outcome would be acceptable in these scenarios and struggle to rationalize their positions. Hard cases don’t make bad law, they make bad jurists, ones who are afraid to admit that their reasoning is often driven by selfishness, sentimentality, or social pressures.Despite these challenges, society should resist outsourcing its moral codification. If the trolley problem’s answer is to reflect, or at least be informed by, the rich diversity of experiences, attitudes, and opinions in America’s communities, it is crucial that everyone participates in the process. The experts may say that the trolley problem is nothing to fret over, but they’re forgetting that cars are, first and foremost, vehicles. Even if you’re wholly unconcerned with how driverless cars perform while you are in them, you should be very concerned with where you end up when you step out of them. In this case, they’re driving society towards legal and political reforms that should not be ignored.*        *       *This piece originally appeared in Wired magazine.

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Yes, the Trolley IS a Problem

Recently, the “trolley problem,” a decades-old thought experiment in moral philosophy, has been enjoying a second career of sorts, appearing in nightmare vision

Yes, the Trolley IS a Problem

In 2016, brands spent $570 million on social influencer endorsements on Instagram alone. This recode article takes a looks at how much influencers with certain followings can command, and whether they’re worth the investment.And don’t overlook the legal issues associated with the use of social media influencers; the FTC just settled its first complaint against social media influencers individually. The case involved two online gamers who posted videos of themselves promoting a gaming site that they failed to disclose they jointly owned.In a precedent setting opinion, the European Court of Human Rights held that the right to privacy of a Romanian man, Bogdan Bărbulescu, was violated when Bărbulescu’s employer, without explicitly notifying Bărbulescu, read personal messages that Bărbulescu sent from an online account that Bărbulescu had been asked to set up for work purposes.In other European news, the attorney general for England and Wales, Jeremy Wright, MP, has begun an inquiry into whether that jurisdiction needs to impose restrictions on social media in order to help ensure criminal defendants there get a fair trial.More than half of Americans 50 or older now get their news from social media sites, Pew Research Center’s 2017 social media survey shows.Celebrities who promote initial coin offerings (ICOs) on social media risk violating laws that apply to the public promotion of securities.Facebook developed an artificial intelligence robot that can express emotion by making realistic facial expressions at appropriate times.A college student has sued Snapchat and the Daily Mail for alleged defamation and invasion of privacy arising from the use of the student’s name and image on Discover, Snapchat’s social news feature, under the headline, “Sex, Drugs and Spring Break—College Students Descent on Miami to Party in Oceans of Booze and Haze of Pot Smoke.”Is the threat of artificial intelligence disrupting a slew of industries less imminent than we thought?Google created a website that uses fun illustrations to show which “how to” queries its users entered into the search engine most.The popularity of online videos that viewers can appreciate with the sound turned off has led to striking similarities between early silent film and modern social video.

Social Links: Social media influencers earn big bucks for endorsements, while the FTC settles a suit against influencers; European court sides with employee axed over emails reviewed by employer

In 2016, brands spent $570 million on social influencer endorsements on Instagram alone. This recode article takes a looks at how much influencers with certain 

Social Links: Social media influencers earn big bucks for endorsements, while the FTC settles a suit against influencers; European court sides with employee axed over emails reviewed by employer