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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A recent district court decision highlights the growing prevalence of issues relating to new media technologies arising in the courtroom.  In <a href="https://law.justia.com/cases/federal/appellate-courts/ca4/12-1671/12-1671-2013-09-18.html">Bland v. Roberts</a>, the Federal District Court for the Eastern District of Virginia held that merely “liking” a Facebook page is insufficient speech to merit constitutional protection.Five 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 and freedom of association when he fired them, allegedly for having supported an opposing candidate, Jim Adams, in the local election against Roberts for Sheriff.  In particular, two of the plaintiffs had “liked” Jim Adams’s page on Facebook.  When Sheriff Roberts was reelected, he terminated the plaintiffs as employees, but did not cite the Facebook likes or other support of Jim Adams as reasons for their departures.The two plaintiffs alleged that they engaged in constitutionally protected speech when they liked the Jim Adams Facebook page.  In April 2012, however, the court granted Roberts’s motion for summary judgment, ruling that a Facebook like does not meet the standard for constitutionally protected speech.  (The <a href="http://caselaw.lp.findlaw.com/data/constitution/amendment01/12.html">freedom of association</a> claims were dismissed under the <a href="http://www.law.cornell.edu/wex/qualified_immunity">theories of qualified</a> and <a href="http://www.law.cornell.edu/anncon/html/amdt11_user.html">Eleventh Amendment Immunity</a>.)The court looked to cases involving speech on social media websites, noting that precedent had developed around cases where the speech at issue involved actual statements (e.g., Mattingly v. Milligan and <a href="http://scholar.google.com/scholar_case?case=16918995634280125052&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Gresham v. City of Atlanta</a>). The court held that this case was distinguishable because liking involved no actual words, and constitutionally protected speech could not be inferred from “one click of a button.”  In summary, the court wrote that liking a Facebook page is “not the kind of substantive statement that had previously warranted constitutional protection.”Because it ruled that liking a Facebook page cannot be considered constitutionally protected speech, the court did not proceed to analyze whether the plaintiffs’ First Amendment rights had been violated. The court based its decision on the fact that the plaintiffs made no actual statements, suggesting that had there been a declarative statement—such as a wall post—the court’s decision might have been different.  (One of the plaintiffs alleged that he had written a wall post with an expressed opinion, but deleted the post before it could be documented).  Critics <a href="http://volokh.com/2012/04/29/is-a-facebook-like-not-substantive-enough-to-warrant-constitutional-protection/">point out</a> that the court’s ruling that protected speech requires an actual statement is inconsistent with prior First Amendment case law, which identifies various forms of protected speech (e.g., armbands in Tinker v. Des Moines Independent Community School District; flag burning in <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0491_0397_ZS.html">Texas v. Johnson</a>). This point is a key issue ripe for appeal.Internet Law experts argue that the court failed to consider the technology behind liking a page on Facebook. For example, Professor Eric Goldman, a prominent legal scholar and blogger, has <a href="http://arstechnica.com/tech-policy/news/2012/04/facebook-likes-arent-speech-protected-by-the-first-amendment-rules-judge.ars">observed</a> that liking is more than a passive signal of virtual approval and that the like functionality has various effects on Facebook’s algorithm, including increased publicity for the liked page.  Although it is unclear whether these underlying changes are sufficient to tip the protected speech scale, Goldman and others argue that these changes should at least be weighed in the court’s decision.The question for the social media community moving forward is whether other courts will agree that liking should not amount to constitutionally protected speech.  Regardless of the outcome, the case provides a good lesson:  what you say on a social media network can be used against you.

What’s Not to Like?

A recent district court decision highlights the growing prevalence of issues relating to new media technologies arising in the courtroom.  In Bland v. Roberts, 

What’s Not to Like?

Pinterest is 2012’s “most talked-about” social media platform and one of the fastest-growing standalone websites in history.  By tapping into the enthusiasm for gathering and presenting images that have been pulled from across the web, Pinterest has created a powerful content sharing platform – and has provoked strong objections from copyright owners.  Companies that are considering whether to promote their brands and products using Pinterest should understand the best practices for analyzing and mitigating these legal risks.Please join John F. Delaney of Morrison & Foerster LLP for a one-hour audio briefing hosted by Practising Law Institute (PLI). Participants of this program will learn:<ul><li>Pinterest’s history and explosive growth</li><li>How corporations are using Pinterest to interact with customers</li><li>How the Pinterest platform works</li><li>Copyright law concerns raised by use of the Pinterest site</li><li>Key online contract law considerations for Pinterest users</li><li>Risk reduction strategies for your company or clients</li></ul>For more information or to register, please visit PLI’s website <a href="http://www.pli.edu/Content/Seminar/Pinterest_Legal_Considerations_to_Using_the/_/N-4kZ1z12rnz?ID=156477">here</a>.

Pinterest: Key Legal Considerations in Using the Internet’s Hottest Social Media Platform

Pinterest is 2012’s “most talked-about” social media platform and one of the fastest-growing standalone websites in history.  By tapping into the enthusiasm for

Pinterest: Key Legal Considerations in Using the Internet’s Hottest Social Media Platform

In past Socially Aware posts, we have discussed using subpoenas in civil litigation to obtain evidence from social media sites, including whether individuals have a privacy interest in this information and how the Stored Communications Act may limit the use of subpoenas in civil cases.  Until now, we have not discussed these issues in the context of a criminal case.  Does the prosecutor have to get a search warrant to obtain information about someone’s social media use?  Does the Stored Communications Act limit the government’s authority in this area?  A decision from the Criminal Court of the City of New York arising out the Occupy Wall Street movement, <a href="https://www.aclu.org/files/assets/owsharrismtqdecision.pdf">People of the State of New York v. Malcolm Harris</a>, sheds some light on these questions. On October 1, 2011, protesters marched on the Brooklyn Bridge as part of an Occupy Wall Street demonstration.  Malcolm Harris, along with hundreds of other protesters, was charged with disorderly conduct for allegedly occupying the roadway of the Brooklyn Bridge.  The District Attorney expected Harris to claim as a defense that he stepped onto the roadway because the police led him there.  The District Attorney, however, asserted that Harris, while on the Bridge, may have tweeted statements inconsistent with his anticipated defense.The District Attorney issued a third-party subpoena on Twitter, seeking user information and tweets associated with the account @destructuremal, allegedly used by Harris.  Harris notified Twitter that he would move to quash the subpoena, and Twitter took the position that it would not comply with the subpoena absent a ruling by the Court.  The District Attorney opposed the motion.The Court found that Harris lacked standing to quash the third-party subpoena on Twitter.  The Court found that Harris had neither a proprietary interest nor a privacy interest in the user information and tweets associated with the account.  The Court denied Harris’s motion to quash, and ordered Twitter to comply with the subpoena.No Proprietary Interest in TweetsFirst off, according to the Court, Harris’s tweets were not his tweets.  When registering a Twitter account, the user must agree to Twitter’s Terms of Service, which includes a grant to Twitter of a “worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” user content posted to Twitter.  The Court found that Twitter’s license to use Harris’s tweets meant that the tweets posted by Harris “were not his.”  In the Court’s view, Harris’s “inability to preclude Twitter’s use of his [t]weets demonstrates a lack of proprietary interest in his [t]weets.” No Privacy Interest in Tweets The Court went on to reject Harris’s contention that he had a privacy interest in his tweets.  Twitter’s Terms of Service also state that submitted content “will be able to be viewed by other users of the Service and through third party services and websites,” and Twitter’s Privacy Policy states that the Twitter’s service is “primarily designed to help you share information with the world.”  Twitter makes no assurances of privacy.  Rather, Twitter notifies its users that their tweets (at least on default settings) will be available for the world to see.  Thus, the Court found that tweets are “by definition public.”No Search Warrant RequiredThe Court further held that Harris’s Fourth Amendment rights were not at issue, because the internet is not a physical “home.”  While service providers may refer to a user’s space on the site as a “virtual home,” the Court took the position that this “home” is no more that “a block of ones and zeros stored somewhere on someone’s computer.”  Thus, while Twitter users may think that the Fourth Amendment protections that apply in their physical homes will also apply to their Twitter accounts, “in reality, the user is sending information to the third party, Twitter.” No Stored Communications Act ProtectionFinally, the Court held that, unlike in a civil case, the Stored Communications Act permits the government in a criminal case to subpoena subscriber and session information directly from the social media site.  The Court held that, unlike private litigants in civil litigation, prosecutors may obtain such information using any federal or state grand jury, trial or administrative subpoena by showing “specific and articulable facts showing that there are reasonable grounds to believe” that the tweets “are relevant and material to an ongoing criminal investigation.”   The Court held that the District Attorney clearly made this showing in the case.In short, the Court has made it clear that users of social media who also find themselves charged with a criminal offense should have no expectation that potentially relevant information will be considered private or beyond the reach of a subpoena.Reaction to DecisionThe Court’s decision has been criticized by <a href="http://www.techdirt.com/articles/20120508/12234118833/twitter-challenges-court-ruling-that-twitter-users-have-no-standing-to-protect-their-own-account-info.shtml">tech blogs</a> and the <a href="https://www.aclu.org/blog/technology-and-liberty-national-security-free-speech/breaking-news-twitter-stands-one-its-users">American Civil Liberties Union</a>, and, on May 7, 2012, Twitter filed a <a href="https://www.aclu.org/files/assets/memoinsupportofnon-partytwittermotion_to_quash.pdf">motion to quash</a> the Court’s order, arguing that among other errors in the Court’s decision, under Twitter’s Terms of Service, Harris in fact retained his rights to any content that he submitted, posted or displayed on or through the Twitter service.  We will keep in eye on further developments in this case.