Section 230 of the Communications Decency Act continues to act as one of the strongest legal protections that social media companies have to avoid being saddled with crippling damage awards based on the misdeeds of their users.

The strong protections afforded by Section 230(c) were recently reaffirmed by Judge Caproni of the Southern District of New York, in Herrick v. Grindr. The case involved a dispute between the social networking platform Grindr and an individual who was maliciously targeted through the platform by his former lover. For the unfamiliar, Grindr is mobile app directed to gay and bisexual men that, using geolocation technology, helps them to connect with other users who are located nearby.

Plaintiff Herrick alleged that his ex-boyfriend set up several fake profiles on Grindr that claimed to be him. Over a thousand users responded to the impersonating profiles. Herrick’s ex‑boyfriend, pretending to be Herrick, would then direct the men to Herrick’s’ work-place and home. The ex-boyfriend, still posing as Herrick, would also tell these would-be suitors that Herrick had certain rape fantasies, that he would initially resist their overtures, and that they should attempt to overcome Herrick’s initial refusals. The impersonating profiles were reported to Grindr (the app’s operator), but Herrick claimed that Grindr did not respond, other than to send an automated message. Continue Reading Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act

In a decision that has generated considerable controversy, a federal court in New York has held that the popular practice of embedding tweets into websites and blogs can result in copyright infringement. Plaintiff Justin Goldman had taken a photo of NFL quarterback Tom Brady, which Goldman posted to Snapchat. Snapchat users “screengrabbed” the image for use in tweets on Twitter. The defendants—nine news outlets—embedded tweets featuring the Goldman photo into online articles so that the photo itself was never hosted on the news outlets’ servers; rather, it was hosted on Twitter’s servers (a process known as “framing” or “inline linking”). The court found that, even absent any copying of the image onto their own servers, the news outlets’ actions had resulted in a violation of Goldman’s exclusive right to authorize the public display of his photo.

If legislation recently introduced in California passes, businesses with apps or websites requiring passwords and enabling Golden State residents younger than 18 to share content could be prohibited from asking those minors to agree to the site’s or the app’s terms and conditions of use.

After a lawyer was unable to serve process by delivering court documents to a defendant’s physical and email addresses, the Ontario Superior Court granted the lawyer permission to serve process by mailing a statement of claim to the defendant’s last known address and by sending the statement of claim through private messages to the defendant’s Instagram and LinkedIn accounts. This is reportedly the first time an Ontario court has permitted service of process through social media. The first instance that we at Socially Aware heard of a U.S. court permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a social media account happened back in 2014.

Videos that impose celebrities’ and non-famous people’s faces onto porn performers’ to produce believable videos have surfaced on the Internet, and are on the verge of proliferating. Unlike the non-consensual dissemination of explicit photos that haven’t been manipulated—sometimes referred to as “revenge porn”—this fake porn is technically not a privacy issue, and making it illegal could raise First Amendment issues.

By mining datasets and social media to recover millions of dollars lost to tax fraud and errors, the IRS may be violating common law and the Electronic Communications Privacy Act, according to an op-ed piece in The Hill.

A woman is suing her ex-husband, a sheriff’s deputy in Georgia, for having her and her friend arrested and briefly jailed for posting on Facebook about his alleged refusal to drop off medication for his sick children on his way to work. The women had been charged with “criminal defamation of character” but the case was ultimately dropped after a state court judge ruled there was no basis for the arrest.

During a hearing in a Manhattan federal court over a suit brought by seven Twitter users who say President Trump blocked them on Twitter for having responded to his tweets, the plaintiffs’ lawyer compared Twitter to a “virtual town hall” where “blocking is a state action and violates the First Amendment.” An assistant district attorney, on the other hand, analogized the social media platform to a convention where the presiding official can decide whether or not to engage with someone. The district court judge who heard the arguments refused to decide the case on the spot and encouraged the parties to settle out of court.

Have your social media connections been posting headshots of themselves alongside historical portraits of people who look just like them? Those posts are the product of a Google app that matches the photo of a person’s face to a famous work of art, and the results can be fun. But not for people who live in Illinois or Texas, where access to the app isn’t available. Experts believe it’s because laws in those states restrict how companies can use biometric data.

The stock market is apparently keeping up with the Kardashians. A day after Kim Kardashian’s half-sister Kylie Jenner tweeted her frustration with Snapchat’s recent redesign, the company’s market value decreased by $1.3 billion.

In February the U.S Supreme Court heard oral arguments in United States v. Microsoft. At issue is Microsoft’s challenge to a warrant issued by a U.S. court directing it to produce emails stored in Ireland. With implications for government investigations, privacy law, and multi-national tech companies’ ability to compete globally, the case has attracted significant attention.

Over the course of the oral arguments it became clear that rendering a decision in United States v. Microsoft would require the justices to choose between two less-than-satisfactory outcomes: denying the U.S. government access to necessary information, or potentially harming U.S. technology companies’ ability to operate globally.

The conundrum the justices face is largely due to the fact that the 1986 law at issue, the Stored Communications Act (SCA), never envisioned the kind of complex, cross-border data storage practices of today.

Find out more about the case and how recently introduced legislation known as the CLOUD Act could wind up superseding the Court’s decision in United States v. Microsoft by, among other things, clarifying the SCA’s applicability to foreign-stored data while also providing technology companies with a new vehicle for challenging certain orders that conflict with the laws of the country where data is stored.

Read my article in Wired.

In the last few years, as advertising has followed consumers from legacy media such as television to online video and social media platforms, the Federal Trade Commission has been attempting to ensure that participants in this new advertising ecosystem understand the importance of complying with the FTC’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” or the endorsement guides. The endorsement guides require advertisers and endorsers (also referred to as influencers) to, among other things, clearly and conspicuously disclose when the advertiser has provided an endorser with any type of compensation in exchange for an endorsement.

A failure to make appropriate disclosures may be a violation of Section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive acts or practices. In recent enforcement actions, press releases, guidance, closing letters and letters sent directly to endorsers (including prominent public figures), the FTC has made clear its belief that: (1) appropriate disclosures by influencers are essential to protecting consumers; and (2) in too many instances, such disclosures are absent from celebrity or other influencer endorsements. Continue Reading The FTC’s Quest for Better Influencer Disclosures

In U.S. copyright law circles, one of the hottest topics of debate is the degree to which the fair use doctrine—which allows for certain unauthorized uses of copyrighted works—should protect companies building commercial products and services based on content created by others, especially where such products or services are making transformative uses of such content.

This debate is likely to become even more heated in the wake of the Second Circuit Court of Appeals’ issuance last week of its long-awaited decision in the copyright dispute between Fox News and TVEyes, in which the court sided with the copyright owner over the creator of a digital “search engine” for identifying and viewing television content. But regardless of which side of the debate you are on (or if you are just standing on the sidelines), the court’s decision provides important guidance on the scope of the fair use doctrine as applied to commercial products and services.

The Dispute

Using the closed-captioning data that accompanies most television programming, TVEyes provides a searchable database of video clips. TVEyes’ subscribers—who pay $500 a month—can search the database for keywords in order to identify and view video clips from the service; such video clips may be as long as ten minutes in duration.

In July 2013, Fox sued TVEyes for copyright infringement and, in August 2015, Judge Hellerstein of the U.S. District Court for the Southern District of New York held that the key features of the TVEyes service are protected under the fair use doctrine. Continue Reading All Eyes on Fair Use: The Second Circuit Delivers a Victory for Copyright Owners

As we have noted previously, YouTube users sometimes object when the online video giant removes their videos based on terms-of-use violations, such as artificially inflated view counts. In a recent California case, Bartholomew v. YouTube, LLC, the court rejected a user’s claim that the statement YouTube posted after it removed her video, which allegedly gave the impression that the video contained offensive content, was defamatory.

Joyce Bartholomew is a musician who creates what she calls “original Christian ministry music.” Ms. Bartholomew produced a video for the song “What Was Your Name” and posted the video on YouTube in January 2014. YouTube assigned a URL to the video, which Ms. Bartholomew began sharing with her listeners and viewers. By April 2014, she claims that the video had amassed over 30,000 views.

Shortly afterwards, however, YouTube removed the video and replaced it with the image of a “distressed face” and the following removal statement: “This video has been removed because its content violated YouTube’s Terms of Service.” The removal statement also provided a hyperlink to YouTube’s “Community Guideline Tips,” which identifies 10 categories of prohibited content: “Sex and Nudity,” “Hate Speech,” “Shocking and Disgusting,” “Dangerous Illegal Acts,” “Children,” “Copyright,” “Privacy,” “Harassment,” “Impersonation” and “Threats.” Continue Reading California Court Holds That YouTube’s Removal Notice Is Not Defamatory

The music industry came out on top in one of its first attempts to hold an internet service provider liable for its subscribers’ unauthorized peer-to-peer file sharing.

The decision, handed down by the Fourth Circuit Court of Appeals in a dispute between BMG Rights Management and Cox Communications, outlines the obligations an ISP must fulfill to receive safe harbor protection under the Digital Millennium Copyright Act for a subscriber’s infringement. It also explains when an ISP can be held contributorily liable for its subscribers’ actions.

Read my full analysis here.

Companies that offer services, whether online or offline, to consumers on a subscription or other automatic renewal basis should be aware that such offers are heavily regulated at both the federal and state levels. A recent amendment to Section 17602 of California’s Business and Professions Code provides a good opportunity for businesses that make subscription offers to review their practices. As of July 1, 2018, the obligations under California law will expand in two ways that may require businesses to update those practices.

The first change relates to the information that businesses must provide to consumers regarding the terms of a subscription offer. The current law already requires a business to provide certain information about the renewal process—such as the amount of the recurring charges, the length of the renewal period, and the cancellation policy—both before the consumer accepts the agreement, and afterwards in an acknowledgement. The amendment provides that, as of July 1, 2018, if the offer includes any free trial or gift component, the information provided to consumers must also include a “clear and conspicuous explanation of the price that will be charged after the trial ends or the manner in which the subscription or purchasing agreement pricing will change upon conclusion of the trial.” Continue Reading Amended California Law Expands Requirements for Consumer Subscriptions

Last year we covered a wide range of online legal and business subjects intended for readers ranging from Internet entrepreneurs to social media marketers, from online shoppers to e-tailers, from networkers to influencers (and the brands that pay them).

The topics of our blog posts covered a myriad of cutting-edge subjects, including a new federal law limiting a business’s ability to stop patrons from posting negative online reviews and a court opinion that gave online retailers some cause for celebration.

As interesting as those topics are, they weren’t the subjects of Socially Aware’s most widely read articles from last year. Here are the most popular posts that appeared on Socially Aware in 2017.

  1. Second Circuit Clarifies “Repeat Infringer” Policy Requirement for DMCA Copyright Safe Harbors
  2. N.Y.’s New Cybersecurity Regulations: What Financial Services Companies Need to Know
  3. The Hague District Court’s WhatsApp Decision Creates Concerns for Mobile App Developers
  4. Google Ordered to Comply with Warrant for Foreign-Stored User Data
  5. Limiting Statutory Damages in Internet Copyright Cases
  6. Court Orders Google to Turn Over Foreign-Stored Data
  7. Zazzle Fizzles: Website Operator Denied Copyright Safe Harbor Protection for Its Sale of Physical Products Featuring User-Generated Images
  8. Delaware Paves the Way for Blockchain Technology
  9. Brands Beware: FTC Continues Campaign on Social Media Influencer Disclosures
  10. FTC Report Reinforces the Rules for Cross-Device Tracking

This post is a bit meta. It is about an event that I attended that was about an event that I didn’t attend.

Let me explain. I missed the Consumer Electronics Show (CES) this year, but was fortunate to attend the Paley Center for Media’s (PCM) “Best of CES 2018” event last Thursday night. Every year, immediately following CES, PCM (a Morrison & Foerster client) convenes a panel of well-known tech industry commentators to discuss the most interesting technologies and technology trends that they discovered at CES. For attendees of PCM’s event, it feels like getting all of the benefits of CES without having to deal with the crowds and long lines (or even booking a flight to Las Vegas).

This year’s PCM panel members, all of whom had spent the prior week at CES, consisted of Joanna Stern of the Wall Street Journal, Dana Wollman of Engadget, Shelly Palmer of the Palmer Group and Advancit Capital’s Jon Miller, who served as the moderator.

Normally this is the sort of event that I would have live tweeted via our @MoFoSocMedia Twitter account—but I’m a slow typist and the panelists had way too many interesting insights per minute for me to keep up. On the other hand, it seems selfish not to share what I learned, so I’m writing this informal summary of the event—essentially, the best of the “Best of CES 2018.” Continue Reading The Best of the Best of CES 2018