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

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Following this morning’s meeting, the Commission has published its <a href="https://www.sec.gov/files/rules/proposed/2012/33-9354.pdf" target="_blank">proposed rules</a>.SummaryThe SEC published its guidance today as a proposed rule, with a comment period, and not as an interim final rule.The SEC proposes to amend Rule 506 to provide that the prohibition against general solicitation contained in Rule 502(c) shall not apply to offers and sales of securities made pursuant to Rule 506 provided that all purchasers are accredited investors and the issuer takes reasonable steps to verify their status.Form D will be amended so that an issuer will be required to indicate whether it has used general solicitation.The SEC is not proposing to amend the Section 4(a)(2) exemption.Rule 506 offeringsRelease implements a bifurcated approach—that is an issuer can conduct a Rule 506 offering without general solicitation, or a Rule 506(c) offering using general solicitationA new Rule 506(c) is introduced, which would permit general solicitation provided:  issuer takes reasonable steps to verify investor status; purchasers are accredited investors; and other conditions of Rule 501 and 502(a) and 502(d) are satisfied.The Staff is not prescribing a verification approach, but recognizing that the reasonableness of the steps taken to verify status will be based on particular facts and circumstances.  The Staff sets out a number of measures (in the form of a non-exclusive list) that could be used in order to assess investor status.Rule 144ARule 144A will be amended to remove the reference to “offer” and “offeree” from Rule 144A(d)(1), requiring only that securities be sold only to a QIB or person reasonably believed to be a QIB.IntegrationRule 144A/Rule 506 offerings will not be integrated with contemporaneous Regulation S offerings—however, the language used in the release may not be as clear as market participants would like.

SEC Releases Proposed Rules Relaxing Ban on General Solicitation

Following this morning’s meeting, the Commission has published its proposed rules: http://www.sec.gov/rules/proposed/2012/33-9354.pdf Summary The SEC published 

SEC Releases Proposed Rules Relaxing Ban on General Solicitation

At a meeting this morning, the SEC voted to propose rules relaxing the ban on general solicitation for certain offerings conducted pursuant to Rule 506 and resales under Rule 144A.  In a meeting that lasted approximately 45 minutes, the Staff outlined the principal aspects of the proposed rules.  The Staff indicated that it was proposing rules for comment, and not proposing an interim final rule.  As a result, market participants will have an opportunity to comment on the proposal and the Staff will have an opportunity to consider these comments prior to the adoption of final rules.  As anticipated, close attention will be required in relation to the Staff’s proposals regarding the “reasonable steps” to be taken to verify accredited investor status for offerings in which general solicitation is used.  The Staff discussed generally the verification process.  The Staff also discussed proposed changes to Form D.  The Staff also noted that the proposal would address the “directed selling effort” prong of Regulation S.  We will provide a detailed analysis of the proposal shortly.The Commissioners provided interesting perspectives on the proposed rules and on the rulemaking process.Commissioner Walter noted her support for modification of the communications rules in order to make these rules more contemporary.  She noted that allowing general solicitation is “a profound change,” which likely will have “unintended consequences.”  Commissioner Walter noted that comments on the proposal should help to identify these potential unintended consequences.  She also suggested that the Staff consider updating Form D in order to make it a source for more information regarding the types of offerings in which general solicitation is used and that the Staff should study the uses of general solicitation.  Commissioner Walter asked how the Staff intended to monitor the use of Rule 506 offerings involving general solicitation.  Meredith Cross noted that a multi-divisional task force would be formed in order to identify offerings in which general solicitation was used and to understand the verification processes used in these offerings.Commissioner Aguilar noted he did not support the proposal and he would issue a separate statement which would be forthcoming.  He expressed concerns about investor protection.Both Commissioners Paredes and Gallagher expressed their support for the proposal, while noting their significant concerns with the rulemaking process itself.  The two Commissioners noted that the original rulemaking course, which had been to release an interim final rule (not a proposal), had been changed in midstream.  This change had been occasioned after significant concerns had been expressed by various groups, including state regulators.  Both Commissioners Paredes and Gallagher noted their concern regarding the change in course and the resulting delays.

SEC Proposes Rules to Relax the Ban on General Solicitation: First Take

At a meeting this morning, the SEC voted to propose rules relaxing the ban on general solicitation for certain offerings conducted pursuant to Rule 506 and resa

SEC Proposes Rules to Relax the Ban on General Solicitation: First Take

In today’s information economy, content owners are faced with a challenging decision regarding digital content. On the one hand, the viral nature of social media can mean unprecedented exposure as digital content is shared. On the other, that opportunity can come with significant legal risk if companies take an insufficiently careful approach to intellectual property clearance issues. One luxury clothing brand, Burberry Ltd., recently discovered just how substantial that legal risk can be.Burberry approached social media with an innovative concept: “historical timelines” on its various social media pages, including <a href="http://www.facebook.com/burberry">Facebook</a>, <a href="http://www.twitter.com/Burberry">Twitter</a>, and Instagram. These timelines featured photos of celebrities wearing Burberry’s iconic trench coats, scarves, and other products. Among Burberry’s chosen photos was a shot of Humphrey Bogart from the final scene of <a href="http://www.imdb.com/title/tt0034583/">Casablanca</a>, in which Bogart’s Rick, clad in a timeless Burberry trench, sends Ingrid Bergman’s Ilsa off to Brazzaville. While Burberry acquired permission to use the photo from photo agency <a href="http://www.corbisimages.com/">Corbis</a>, which manages the rights to various stock photos from Casablanca, Burberry failed to clear its use with Bogart LLC, which owns the actor’s publicity rights. <a href="http://www.law.cornell.edu/uscode/text/15/1125">Applicable law</a> allows a celebrity to object to use of his or her name or likeness in a commercial context, particularly if the use is likely to cause members of the intended market to believe that the celebrity endorses the product. Bogart LLC <a href="http://www.scribd.com/doc/92146247/Burberry-v-Bogart">alleged</a> that Burberry’s use of the photo falsely implied that Bogart had endorsed the brand, thereby violating Bogart LLC’s publicity rights. Burberry countered, arguing that its timelines constituted “a historical positioning of the image within an educational project along with numerous other photographs of people wearing Burberry apparel over the last century.”Although Burberry and Bogart LLC settled their pending state and federal cases for an undisclosed amount, this case provides a good example of the unexpected issues that can arise when brand managers fail to consider the full spectrum of rights that may be implicated by the use of photographs and other content. While the content industries have spent the last decade educating the public on copyright law’s effects in the digital media world, less attention has been paid to other areas of potential liability, such as trademark infringement and privacy and publicity rights violations, and their respective effects on the social media experience.For example, in 2007, Virgin Mobile Australia (VMA) launched an advertising campaign using amateur photography culled from the social photo-sharing site, <a href="http://www.flickr.com/">Flickr</a>. The photos used by VMA were licensed under a Creative Commons “<a href="http://creativecommons.org/licenses/by/2.0/">Attribution</a>” license, which requires only that the original creator—that is, the copyright holder—be given credit. VMA chose for its campaign a photo of then-15-year-old Alison Chang, taken by her church youth counselor and uploaded by him to Flickr. Although VMA had appropriate copyright clearance to use the counselor’s picture under the Creative Commons license, Chang’s parents <a href="http://www.smh.com.au/news/technology/virgin-sued-for-using-teens-photo/2007/09/21/1189881735928.html">sued</a> VMA for failing to get permission from Chang or her parents to use Chang’s name or likeness. Although the case was <a href="http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-01-16-%20Dismissal%20Opinion%20%28Chang%29.pdf">dismissed</a> on procedural grounds, the incident illustrates how easily (and often) clearance procedures are overlooked when it comes to Internet-based content.Similar cases have raised complex issues relating to federal preemption of state law claims. For example, in <a href="http://scholar.google.com/scholar_case?case=16156934007444564709">Laws v. Sony Music Entertainment, Inc.</a>, the plaintiff sued Jennifer Lopez and LL Cool J, alleging misappropriation of her name and voice through use of a sound recording on which the plaintiff’s voice was featured. The defendants had obtained a license to use the sound recording on which the plaintiff’s voice was featured, but had not obtained from the plaintiff the right to use her voice. Nonetheless, the Ninth Circuit held that, on this set of facts, the federal Copyright Act preempted the plaintiff’s state law right-of-publicity claim. Thus, her permission was not required for the defendants to use the validly licensed sound recording. By contrast, a different Ninth Circuit panel in <a href="http://scholar.google.com/scholar_case?case=13816450651302557386">Downing v. Abercrombie & Fitch, Inc.</a>, held that the Copyright Act did not preempt the plaintiffs’ state law publicity claims based on Abercrombie’s advertising use of a photo of the plaintiffs taken after the 1965 Makaha International Surf Championship in Hawaii. Thus, Abercrombie should have sought the plaintiffs’ permission in the first instance. The preemption inquiry is fact-bound—the Copyright Act preempts state law publicity claims in some circumstances, but not others.While the details of these preemption cases exceed the scope of this article, suffice it to say that a company’s social media marketing personnel may not have the expertise to wade through such complex clearance issues. A clearance system that focuses narrowly on copyright issues and doesn’t consider other forms of intellectual property may therefore result in unexpected claims. It is also worth noting that the safe harbors provided by the <a href="http://scholar.google.com/scholar_case?case=13644579048975596329">Digital Millennium Copyright Act</a> apply only to copyright claims, not other types of claims such as those mentioned above, and in any event, provide protection only with respect to <a href="http://www.youtube.com/user/mugumogu?feature=watch">user-generated content</a>, not content posted by a company’s own employees. Therefore, companies should not assume that the DMCA will shield them from all liability for content posted on their social media pages.Social media is an exciting new channel for reaching both current and prospective customers. But from a rights-clearance perspective, the old rules largely remain in force. Accordingly, companies’ review procedures for company-driven social media content should, to the extent possible, mirror the process they undertake for print ads and other traditional media. And where that may not be feasible (given the speed and flexibility often required on social media platforms), companies should institute rigorous policies and train marketing associates on how to avoid potential liability.

The Potential Perils of Posting Pictures (on Social Media)

In today’s information economy, content owners are faced with a challenging decision regarding digital content. On the one hand, the viral nature of social medi

The Potential Perils of Posting Pictures (on Social Media)

<a href="https://www.sociallyawareblog.com/2012/05/21/whats-not-to-like/">As we reported earlier this year,</a> the Federal District Court for the Eastern District of Virginia held in <a href="https://law.justia.com/cases/federal/appellate-courts/ca4/12-1671/12-1671-2013-09-18.html">Bland v. Roberts</a> that merely “liking” a Facebook page is insufficient speech to merit constitutional protection.In the case, former employees of the Hampton Sheriff’s Office brought a lawsuit against Sheriff B.J. Roberts, in his individual and official capacities, alleging that he violated their First Amendment rights to freedom of speech when he fired them, allegedly for having supported an opposing candidate, Jim Adams, in the local election for Sheriff.  Two of the plaintiffs had done nothing more than “like” Adams’s Facebook page.Shortly after the district court ruled in favor of the defendants, the plaintiffs filed a <a href="http://www.citmedialaw.org/sites/citmedialaw.org/files/05-22-2012-Notice%20of%20Appeal.pdf">notice of appeal</a>.  Now <a href="http://www.facebook.com/">Facebook</a> and the <a href="http://www.aclu.org/">American Civil Liberties Union</a> (ACLU) have filed amicus briefs on behalf of the plaintiffs, arguing that “liking” something on Facebook is speech—or at the very least, expression—under the First Amendment, and thus should be entitled to constitutional protection.In its amicus brief, <a href="http://www.scribd.com/doc/102260753/Bland-v-Roberts">Facebook argues</a> that when the plaintiffs clicked the “like” button on Jim Adams’s campaign page, it was “the 21st-century equivalent of a front-yard campaign sign.”  Facebook also notes, <a href="https://www.sociallyawareblog.com/2012/06/05/interview-with-debbie-rosenbaum-regarding-bland-v-roberts/">as we did in our video interview with LexBlog</a>, that clicking “like” is more than a passive signal of approval because it has real effects on Facebook’s algorithm, including “notices and statements on a Facebook user’s profile page, in his or her friends’ news feeds, and in other places around the site.”The <a href="http://www.aclu.org/files/assets/bland_v._roberts_appeal_-__amicus_brief_.pdf">ACLU amicus brief</a> takes issue with the district court’s ruling that “liking” is not entitled to protection because it involves no actual statements.  In response, the ACLU argues that even if “liking” something is not “pure speech,” courts have long recognized that First Amendment protection is not limited to actual words.  The brief goes on to cite almost a dozen cases where conduct or expression has been held to be protected under the First Amendment.  Further, the ACLU argues, whether someone presses a “like” button to express his thoughts or presses the buttons on a keyboard to write out those words, “the end result is the same:  one is telling the world about one’s personal beliefs, interests, and opinions.  That is exactly what the First Amendment protects, however that information is conveyed.”This case is a prime example of the courts’ challenge of interpreting traditional legal regimes in dynamic, Internet contexts and one that we will continue to follow as it progresses.

Update: What’s Not to Like?

Update: What’s Not to Like?