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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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)

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

There oughta be a law? As we’ve reported previously, states all around the country have enacted laws that criminalize the posting of revenge porn—nude photographs published without the subject’s consent, often by an ex-lover seeking retribution. To avoid running afoul of the First Amendment, these laws are typically <a href="http://www.sociallyawareblog.com/2014/01/29/keeping-privates-private-the-legal-landscape-of-revenge-porn/" target="_blank" rel="noopener">fairly limited in scope</a> and provide for relatively minor penalties. <a href="http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB255" target="_blank" rel="noopener">California’s anti-revenge-porn law</a>, for example, categorizes posting revenge-porn as a misdemeanor, and contains <a href="http://blog.ericgoldman.org/archives/2013/10/californias_new_1.htm" target="_blank" rel="noopener">several exceptions</a>. Among other things, California’s law only applies if the poster intended to cause the victim emotional distress—a characteristic that improves the law’s chances of surviving a First Amendment challenge. Arizona’s anti-revenge porn law, in contrast, contains no such limitation and provides that violations constitute a felony. As a result, <a href="https://www.aclu.org/news/judge-halts-enforcement-unconstitutional-nude-photo-law-arizona" target="_blank" rel="noopener">the ACLU argued</a> that Arizona Revised Statute <a href="http://law.justia.com/codes/arizona/2014/title-13/section-13-1425" target="_blank" rel="noopener">§13-1425</a> could lead to a felony conviction for posting a photograph “even if the person depicted had no expectation that the image would be kept private and suffered no harm,” such as in the case of “a photojournalist who posted images of victims of war or natural disaster.” Based on such alleged overreach, a group of Arizona booksellers, publishers, librarians and photographers filed Antigone Books v. Brnovich—a lawsuit to halt enforcement of the Arizona law. A joint final settlement between the Arizona attorney general and the plaintiffs in that case resulted in a July 2015 federal court order that does, in fact, scrap §13-1425.  In <a href="https://www.aclu.org/blog/speak-freely/victory-federal-judge-deep-sixes-arizonas-ridiculously-overbroad-nude-photo-law" target="_blank" rel="noopener">her discussion</a> of the settlement, an ACLU staff attorney said that the organization nevertheless views revenge porn as a serious concern. She lauded social media platforms’ and online search companies’ decisions to heed revenge-porn victims’ take-down requests as victories “achieved without a new criminal law and without a new inroad against the First Amendment.”Blogs of war. The U.S. Court of Appeals for the Ninth Circuit<a href="http://www.abajournal.com/news/article/blogging_prosecutor_wins_dismissal_of_federal_civil_rights_claim_in_9th_cir/" target="_blank" rel="noopener"> affirmed the dismissal of a civil rights claim</a> brought by a woman who was the subject of negative articles and social media updates written by a Los Angeles county prosecutor and posted to the prosecutor’s personal blog and Twitter account. According to the opinion, the prosecutor, Patrick Frey, posted to his blog eight unfavorable articles about the plaintiff, Nadia Naffe, and “tweeted several dozen threatening and harassing statements” about her. The blog posts and tweets called Naffe, among other things, a “smear artist” and a “liar,” and accused Naffe of having filed frivolous lawsuits against James O’Keefe, a friend of Frey’s with whom Naffe had had a falling out. The Ninth Circuit held that Frey had not violated Naffe’s First Amendment constitutional right to petition the government for redress of grievances pursuant to 42 U.S.C. § 1983 because the posts and tweets weren’t related to his work as a county prosecutor. The court noted, among other things, the fact that Frey’s disparaging comments were sent from Frey’s personal <a href="https://twitter.com/Patterico" target="_blank" rel="noopener">Twitter account</a> and <a href="http://patterico.com/" target="_blank" rel="noopener">blog</a>, both of which specify that they reflect Frey’s “personal opinions” and that they do not contain statements made in an “official capacity.” The Ninth Circuit also noted that the posts and tweets were time stamped outside of Naffe’s office hours.A good catch. While the options for online dating hopefuls continue to multiply—there are now dating services specifically for <a href="http://www.refinery29.com/weird-dating-sites#page-3" target="_blank" rel="noopener">farmers,</a> <a href="http://www.glutenfreesingles.com/" target="_blank" rel="noopener">people living gluten-free lifestyles</a> and <a href="http://www.meetsinglefirefighters.com/" target="_blank" rel="noopener">fire-fighter aficionados</a>—it seems many of the most popular personals sites are merging under the same umbrella. IAC/InterActiveCorp’s Match Group subsidiary, the owner of Match.com, Tinder and OKCupid, among others, just snapped up <a href="http://www.pof.com/" target="_blank" rel="noopener">PlentyOfFish</a> for $575 million. PlentyOfFish, a British Columbia-based dating site that’s free to use but offers upgrades for a fee, currently has <a href="http://www.businessinsider.com/how-markus-frind-bootstrapped-plentyoffish-and-sold-it-for-575-million-2015-7#ixzz3g5I2vYzl" target="_blank" rel="noopener">3.6 million active daily users</a>. Its founder and creator, 36-year-old Markus Frind, <a href="http://www.businessinsider.com/how-markus-frind-bootstrapped-plentyoffish-and-sold-it-for-575-million-2015-7" target="_blank" rel="noopener">built the site without any venture capital funding</a> and still owns 100% of it. IAC, meanwhile, owned <a href="http://www.bloomberg.com/news/articles/2015-07-14/iac-s-match-group-to-acquire-plentyoffish-for-575-million" target="_blank" rel="noopener">20% of the online dating market</a> even before the PlentyOfFish acquisition, which is <a href="http://techcrunch.com/2015/07/14/match-group-buys-plentyoffish-for-575m-to-bag-more-singles/#.mws1hg:kQxH" target="_blank" rel="noopener">expected to close in the fourth quarter</a>.

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

Status Updates: AZ’s anti-revenge-porn law scrapped; civil rights claim against blogging prosecutor dismissed; Match buys PlentyOfFish

There oughta be a law? As we’ve reported previously, states all around the country have enacted laws that criminalize the posting of revenge porn—nude photograp

Status Updates: AZ’s anti-revenge-porn law scrapped; civil rights claim against blogging prosecutor dismissed; Match buys PlentyOfFish

For corporations, the mobile app is today’s website.Back in the late 1990s, no self-respecting company, no matter how stodgy and old-fashioned, wanted to be without a website.Today, the same is true with mobile apps. It doesn’t matter what industry a company is in—it needs to have an app that customers and potential customers can download to their smartphones. Even big, tradition-bound law firms are developing and distributing mobile apps, for crying out loud.Here at Socially Aware, we have been known to spend our free time downloading and examining mobile apps owned by companies that are new to the software distribution business (after all, a mobile app is just that — distributed software). In doing so, we’ve noticed a number of common missteps by app distributors in connection with the legal terms—or End User License Agreements (EULAs)—governing such apps. Accordingly, here is our list of key issues to address in adopting a EULA for a mobile app.1.  Adopt Your Own EULA. A EULA is an important part of any company’s strategy to mitigate risks and protect its intellectual property in connection with its mobile apps. Hardly any company would release desktop software without a EULA, and mobile apps—which, as noted above, are software products—warrant the same protection. While a number of other app providers such as Google provide a “default” EULA to govern mobile apps downloaded from their respective app stores, they also permit developers to adopt their own custom EULAs instead—subject to a few caveats, as mentioned in our fifth item below. Because the default EULAs can be quite limited, and can’t possibly address the unique issues that any particular app is likely to raise, a company should ideally adopt its own EULA to best protect its interests in its apps.2.  Is Your EULA Binding? The best EULA is a binding EULA. U.S. courts have <a href="http://www.sociallyawareblog.com/2014/09/23/to-click-or-not-to-click-ninth-circuit-rejects-browsewrap-arbitration-clause/" target="_blank" rel="noopener">consistently made clear</a> that a “<a href="https://en.wikipedia.org/wiki/Clickwrap" target="_blank" rel="noopener">clickwrap</a>”-style agreement has the best chance of being enforceable; although whether an agreement is enforceable in any particular case may depend on how the agreement is actually presented to users, and how users indicate their assent. Having adopted customized EULAs, companies have several opportunities to present their EULAs to users. In most app stores, for example, a dedicated link called “License Agreement” lets companies link to their EULAs. In addition, companies should ideally include language in their apps’ “Description” field making clear to users that, by downloading and using the app, they are accepting the EULA. But it’s still possible in most app stores for users to purchase and download an app without seeing the EULA; accordingly, for apps that may present significant risk issues—such as banking or e-commerce apps—the most conservative approach is to require an affirmative “click-accept” of the EULA when the app is first opened by a user on his or her device.3.  Which Parties Will Your EULA Bind? If an app is targeted toward businesses, or toward individuals who will use the app in their business capacities, then the EULA should ideally bind both the individual who uses the app and the individual’s employer. Similarly, if minors will be permitted to use the app, then the EULA should require that a parent or guardian consent on the minor’s behalf. (Of course, if minors under 13 will be allowed to use the app, or if the app will be directed toward such minors, you will need to address <a href="http://www.sociallyawareblog.com/2013/01/10/ftc-issues-substantially-revised-coppa-rule-effective-july-1-2013-review-of-changes-and-compliance-tips/" target="_blank" rel="noopener">Children’s Online Privacy Protection Act</a> issues in connection with the app.)4.  Where Will Your EULA Reside? As a technical matter, a EULA can reside in one of two places: it can be “hard-coded” into the app itself, so that the EULA is downloaded together with the app, or it can reside on a separate web server maintained by the developer. The former approach ensures that the EULA is always accessible to the user, even if the user’s device is offline. Some users may decide not to download the latest updates, however, and, as a result, those users may not be bound by the updated terms. In contrast, under the latter approach, companies can update their EULAs at any time by simply updating the document on their own web servers, although the EULAs won’t available to the user offline. Companies should think about which approach works best for their specific apps and their associated risk issues.5.  Does Your EULA Incorporate Terms Required by Third Parties? Some app stores, such as the Apple App Store, understandably require that, if a company adopts a custom EULA for its app, such customized EULA must include terms protecting the applicable app store owner. (Other app stores may place such protective terms in their own user-facing agreements, and require developers to acknowledge that such protective terms will govern.) Other third-party terms may also apply, depending on any third-party functionalities or open-source code incorporated into the app. For example, if a company integrates Google Maps into its app, <a href="https://developers.google.com/maps/terms" target="_blank" rel="noopener">Google requires the integrating company</a> to pass certain terms on to its end users. The licensors of any open-source code used by an app may also require the company to include certain disclaimers, attributions, usage restrictions or other terms in the EULA.6. Is your EULA clearly written and reasonable? Traditionally, EULAs have been overlong, filled with impenetrable legal jargon and, frankly, hard to read, sometimes even for lawyers. An emerging best practice, especially for B2C apps, is to draft app EULAs that are understandable to consumers, and to minimize unnecessary legalisms such as “null and void,” “including without limitation” and the reflexive prefacing of sentences with “we hereby reserve the right” or “you hereby acknowledge and agree.” Moreover, because space on a mobile device screen can be limited, thought should be given to eliminating repetition in app EULAs wherever possible. Of course, even if a EULA is written in plain English, extremely one-sided provisions—such as a disclaimer of direct damages (rather than a cap on such damages)—may raise concerns with a court in any subsequent litigation involving the EULA. At the same time, the EULA is ultimately a legal document, and an app developer will want to make sure that any slimmed-down or simplified EULA still provides adequate protection for the developer.

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

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Mobile App Legal Terms & Conditions: Six Key Considerations

Mobile App Legal Terms & Conditions: Six Key Considerations

  For corporations, the mobile app is today’s website. Back in the late 1990s, no self-respecting company, no matter how stodgy and old-fashioned, wanted to be 