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

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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When an employee uses a social media account to promote his or her company, who keeps that account when the employee leaves? Perhaps more importantly, who keeps the friends, followers and connections associated with that account? Three lawsuits highlight the challenges an employer may face in seeking to gain control of work-related social media accounts maintained by current or former employees.We start with Eagle v. Edcomm, a federal case out of Pennsylvania involving a dispute over an ex-employee’s LinkedIn account and related connections. The plaintiff, Dr. Linda Eagle, was a co-founder of the defendant company, Edcomm. She established a LinkedIn account while at Edcomm, using the account to promote the company and to build her network. Edcomm personnel had access to her LinkedIn password and helped to maintain the account. Following termination of her employment, Edcomm allegedly changed Dr. Eagle’s LinkedIn password and her account profile; the new profile displayed the new interim CEO’s name and photograph instead of Dr. Eagle’s. (Apparently, “individuals searching for Dr. Eagle were routed to a LinkedIn page featuring [the new CEO]’s name and photograph, but Dr. Eagle’s honors and awards, recommendations, and connections.”) Both parties raced to the courthouse, filing lawsuits against each other over the LinkedIn account and other disputes. Although a final ruling on all the issues has not yet been made, the court has issued two decisions.In the <a href="http://www.scribd.com/doc/76429541/Eagle-v-Morgan-11-4303-E-D-Pa-Dec-22-2011">earlier of the two decisions</a>, the court granted Dr. Eagle’s motion to dismiss Edcomm’s trade secret misappropriation claim, concluding that the LinkedIn connections were not a trade secret because they are “either generally known in the wider business community or capable of being easily derived from public information.”<a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1153&context=historical">The most recent decision</a>, however, was largely a win for Edcomm. The court granted Edcomm’s motion for summary judgment on Dr. Eagle’s Computer Fraud and Abuse Act (CFAA) and Lanham Act claims. Regarding her CFAA claims, the court concluded that the damages Dr. Eagle claimed she had suffered—related to harm to reputation, goodwill and business opportunities—were insufficient to satisfy the “loss” element of a CFAA claim, which requires some relation to “the impairment or damage to a computer or computer system.” In rejecting Dr. Eagle’s claim that Edcomm violated the Lanham Act by posting the new CEO’s name and picture on Dr. Eagle’s LinkedIn account, the court found that Dr. Eagle could not demonstrate Edcomm’s actions caused a “likelihood of confusion,” as required by the Act.In a federal case out of Illinois, Maremont v. Susan Fredman Design Group LTD, the employee, Jill Maremont, was seriously injured in a car accident and had to spend several months rehabilitating away from work. While recovering, Ms. Maremont’s employer—Susan Fredman Design Group—posted and tweeted promotional messages on Ms. Maremont’s private Facebook and Twitter accounts, where she had developed a large following as a well-known interior designer. The posts and tweets continued after Ms. Maremont had asked her employer to stop, so Ms. Maremont changed her passwords. Following the password changes, Ms. Maremont alleged that her employer started treating her poorly in order to force her to resign. Ms. Maremont then brought claims under the Lanham Act, Illinois’ Right of Publicity Act, and the common law right to privacy. Although the case is still pending, the court issued a decision refusing to dismiss Ms. Maremont’s Lanham Act and Right of Publicity Act claims. The court, however, dismissed her common law right to privacy claims, holding that she had failed to demonstrate that her employer’s “intrusion into her personal ‘digital life’ is actionable under the common law theory of unreasonable intrusion upon the seclusion of another,” and that she failed to allege a false light claim because she did not allege that her employer “acted with actual malice.”A recently-settled California case, <a href="http://www.scribd.com/fullscreen/77786829?access_key=key-kfqdesukdoeh8asbkg4">PhoneDog LLC v. Noah Kravitz</a>, which <a href="../2012/02/14/district-court-considers-value-of-twitter-account/">we have written about previously</a>, involved a similar dispute over a former employee’s Twitter account. Unlike the LinkedIn account at issue in the Edcomm case, the Twitter account in PhoneDog was apparently created by the employer, not the employee; the Twitter “handle” identifying the account, however, included both the employer’s name and the employee’s name: @PhoneDog_Noah. According to PhoneDog’s complaint, the account attracted approximately 17,000 Twitter followers. Mr. Kravitz—who after leaving PhoneDog eventually began working for one of PhoneDog’s competitors—kept the Twitter account but removed PhoneDog’s name, changing the handle to @noahkravitz. PhoneDog sued Mr. Kravitz, alleging that Mr. Kravitz wrongfully used the Twitter account to compete unfairly against PhoneDog. Like Edcomm, PhoneDog alleged misappropriation of trade secrets, although PhoneDog appears to have viewed the account log-in information rather than the actual followers as the relevant trade secret information. As noted above, the parties have settled this case, so we will not learn how the court would have ultimately ruled; nevertheless, this case and the other pending suits discussed above, offer important lessons to employers. While the terms of the settlement are confidential, news reports have indicated that the agreement does allow Mr. Kravitz to keep his Twitter account and followers.These cases have received <a href="http://www.nytimes.com/2011/12/26/technology/lawsuit-may-determine-who-owns-a-twitter-account.html?_r=1">media attention</a>, and the two pending cases—Eagle and Maremont—will continue to be closely watched by the legal community to see how courts define ownership interests in employee social media accounts. Employers, however, should not wait on the rulings in these pending cases to take steps to protect their interests in their social media accounts. All three of these cases illustrate the importance of creating clear policies regarding the treatment of business-related social media accounts, and making sure that employees are aware of these policies. Other measures an employer can take include: Being certain to control the passwords of the company’s own social media accounts and making sure that the name of the account does not include an individual employee’s name. At the same time, employers need to be mindful of new laws in California restricting an employer’s ability to gain access to its employees’ personal social media accounts.In light of these developments, it will be particularly important to maintain a clear distinction between company and personal social media accounts.

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Which Side Are You On? Employers and Employees Battle Over Ownership of Social Media Accounts

Which Side Are You On? Employers and Employees Battle Over Ownership of Social Media Accounts

When an employee uses a social media account to promote his or her company, who keeps that account when the employee leaves? Perhaps more importantly, who keeps

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Infographic: The Growing Impact of Social Media

Infographic: The Growing Impact of Social Media

On October 30, 2012, California Attorney General Kamala Harris <a href="http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-notifies-mobile-app-developers-non-compliance">announced</a> that her office would begin notifying the developers of as many as 100 mobile apps that their apps do not comply with the state’s Online Privacy Protection Act (OPPA) and that they have 30 days to bring them into compliance.The announcement does not come as a surprise. Earlier this year, the Attorney General published a Joint Statement of Principles with the major platforms that distribute and sell mobile apps, providing that they will distribute only apps that have privacy policies that consumers are able to review prior to download. At that time, her office told app developers that they had six months to come into compliance or to be notified of violations. Shortly thereafter, Attorney General Harris formed a <a href="http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-privacy-enforcement-and-protection">Privacy Enforcement and Protection Unit</a>, intended specifically to enforce OPPA and other privacy laws.In light of the Attorney General’s announcement and her continued focus on privacy, companies that collect personal information online from California residents—whether through a website, online service, or app—should take steps to ensure that they are in compliance. According to the Attorney General’s sample non-compliance letter attached to her <a href="http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-notifies-mobile-app-developers-non-compliance">press release</a>, failure to comply could subject a company to a fine of up to $2,500 each time a non-compliant app is downloaded.The Law’s RequirementsOPPA requires a commercial website operator or online service provider, including a mobile app developer, that collects personally identifiable information (PII) from consumers residing in California to post a conspicuous privacy policy. Because OPPA applies to any company that collects data online about California residents, companies both within and outside of California may be subject to enforcement activity.Under OPPA, the privacy policy must include:<ul><li>The categories of PII that the website, online service, or app collects from its users;</li><li>The third parties with whom such PII may be shared;</li><li>The process by which the consumer can review and request changes to his or her PII, if the website operator, online service provider, or app developer maintains such a process;</li><li>The process by which the operator, provider, or developer notifies consumers of material changes to its privacy policy; and</li><li>Its effective date.</li></ul>Additional ConsiderationsCompliance with OPPA does not necessarily ensure compliance with all applicable laws. In particular, the Federal Trade Commission (FTC) has long taken the position that privacy policies should describe, in a way that consumers can easily understand, all material collection, use, and disclosure practices. This means that, in addition to the information required by OPPA, a privacy policy should include other disclosures, such as:<ul><li>Its scope;</li><li>How PII may be used;</li><li>How “other information”—information that may not be considered PII but the collection of which may be material to users—is collected, used, and disclosed. This may include, for instance, users’ clickstream information or other information derived from their interaction with the website, service, or app and collected for purposes of personalizing content or displaying targeted ads;</li><li>How PII is secured and for how long it may be retained;</li><li>How the user may exercise various rights, such as to opt out of receiving direct marketing or to opt out of the sharing of his or her PII with third parties;</li><li>How the user may access the PII collected from him or her and the control that he or she has with respect to it; and</li><li>How the user can contact the operator or developer.</li></ul>Drafting a compliant privacy policy is only the first step. A company must also implement measures to ensure that it complies with the representations it makes in its privacy policy, to avoid claims that its privacy policy is deceptive or misleading.In light of the increased enforcement activity by the California Attorney General and FTC, mobile app developers will want to ensure their mobile apps include a privacy policy, that the privacy policy is conspicuously posted on the mobile apps, and that the privacy policy is followed in practice.

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Julie O'Neill

California A.G. Makes Good on Promise to Pursue Apps That Don’t Comply With the State’s Privacy Policy Law