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.

Aaron P. Rubin

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.

Anthony M. Ramirez

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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 is our ongoing series here at Socially Aware that rounds up current developments at the intersection of social media, policy, research, and the law.Embedding social media posts can be considered copyright infringement…but is it?A Manhattan federal judge <a rel="noopener" target="_blank" href="https://www.rangefinderonline.com/news-features/industry-news/judge-sides-with-photographer-in-instagram-embed-lawsuit/">ruled in August</a> 2021 that the practice of embedding social media posts on third-party websites, without permission from the content owner, could violate the owner’s copyright.The case centered around a 2017 video of a starving polar bear that nature photographer Paul Nicklen took and posted on his Instagram and Facebook accounts. Its purpose was to highlight the effects of global warming. When the image went viral, Sinclair Broadcasting Group published an article about it and embedded Nicklen’s post without obtaining his permission.In reaching his decision, U.S. District Judge Jed Rakoff <a rel="noopener" target="_blank" href="https://www.reuters.com/legal/transactional/manhattan-judge-rejects-server-test-internet-copyright-infringement-2021-07-30/">rejected the “server test” from the 9th Circuit Court of Appeals</a>, which generally holds that embedding content from a third party’s social media account only violates the content owner’s copyright if a copy is stored on the defendant’s servers.A recent decision on this very topic, however, reveals a different perspective on embedding practices and the “server test.” Reuters reports that a <a rel="noopener" target="_blank" href="https://www.reuters.com/legal/transactional/instagram-dodges-photogs-copyright-lawsuit-over-embedding-feature-2021-09-20/">San Francisco federal court rejected a group of photographers’ claim</a>s that Instagram’s embedding tool infringed on their copyrights. <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/egpbkyoxrvq/IP%20INSTAGRAM%20COPYRIGHT%20order.pdf">Judge Charles Breyer of the U.S. District Court for the Northern District of California ruled that</a> “the Instagram feature doesn’t violate the photographers’ exclusive right to display the pictures publicly because third-party websites that embed the images don’t store their own copies of them.” This decision is second in a series that rejects the “server test” cited above.Photographers Alexis Hunley and Matthew Brauer led the <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/bdwpkwbmepm/frankel-instagram--classcomplaint.pdf">class action complaint</a> in May, followed by Instagram’s <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/lgvdwkozypo/IP%20INSTAGRAM%20COPYRIGHT%20mtd.pdf">move to dismiss in July</a>. According to Reuters, Judge Breyer noted that “Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any “tangible medium of expression…. Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work.”These decisions will most likely end in appeals. We will continue to monitor the developments as they unfold.Harnessing the wisdom – and skills – of the crowd to combat social media’s trust issuesElections, COVID-19 vaccinations, Gabrielle Petito and Brian Laundrie’s disappearance, conspiracy theories about other missing persons: each represents a category that has cast social media platforms under intense scrutiny about their handling of the information – or misinformation – that is published and appears across the social media landscape.While social media platforms employ fact checkers to validate the veracity of posts, the staggering volume of posts on any given day makes it impossible for them to employ enough people to confirm or reject every entry on every channel globally, 24/7. Scale, not to mention cost, remains the central issue.A <a rel="noopener" target="_blank" href="https://www.wired.com/story/could-wisdom-of-crowds-help-fix-social-media-trust-problem/">recent Wired article</a> suggests that using the “wisdom of the crowds” – groups of lay people – often matches or surpasses the accuracy that professional fact checkers provide. In addition to cost savings, <a rel="noopener" target="_blank" href="https://www.science.org/doi/10.1126/sciadv.abf4393">this model also offers something that professional fact checker programs do not: scalability</a>.These issues around trust and misinformation on social media platforms will continue to dominate headlines across technological, legal, and public opinion forums.Social media algorithms result in surprising and unexpected moments for those grieving lost loved ones and friendsMany of us have experienced moments when social media serves up posts, memories, or birthday reminders of those who have passed. <a rel="noopener" target="_blank" href="https://www.wired.com/story/social-media-algorithms-are-controlling-how-i-grieve/">A recent Wired article</a> explores the emotional and psychological effects of those on the receiving end of such social media notices. Particularly in the COVID-19 era, when many have experienced sudden losses of loved ones, friends, and family members, social media platforms have provided much-needed forums for those wanting to share news, information, tributes, memorials, and memories of those who have passed. Many of the major social media outlets have mechanisms and settings to help family members and friends manage their deceased loved ones’ accounts in respectful ways. Facebook offers both <a rel="noopener" target="_blank" href="https://www.facebook.com/help/1017717331640041/">memorialized accounts</a> and <a rel="noopener" target="_blank" href="https://www.facebook.com/help/1568013990080948">legacy contact settings</a>; Instagram provides similar <a rel="noopener" target="_blank" href="https://help.instagram.com/231764660354188">memorialization settings</a>; and Twitter has <a rel="noopener" target="_blank" href="https://help.twitter.com/en/rules-and-policies/contact-twitter-about-a-deceased-family-members-account">processes in place</a> to work with an authorized estate representative to deactivate an account. Google <a rel="noopener" target="_blank" href="https://www.cnbc.com/2019/05/28/how-to-set-google-to-delete-everything-after-i-die.html">provides a similarly robust program</a>, allowing individuals to designate “digital beneficiaries” who will act on their behalf to manage their accounts once they’ve passed.While none of us wants to think about end-of-life directives, taking into consideration the digital footprint that we leave behind on social media as part of our legacy is another factor in the technological landscape where we live today.Young people, social media, and emerging from COVID-19Much has been written in the last 18 months about the effects that COVID-19 has had on all of us, but in particular, on the youth in the United States. Common Sense, Hopelab, and the California Healthcare Foundation published Coping with COVID-19: How Young People Use Digital Media to Manage Their Mental Health earlier this year. It examined how youth used social media and other online tools to cope with the separation and isolation from friends and other social structures that are vital to their intellectual, social, and emotional development.While depression is on the rise among young people (as this infographic explains), there’s good news on the horizon. Recent analyses have noticed <a rel="noopener" target="_blank" href="https://onezero.medium.com/maybe-social-media-isnt-making-teens-depressed-after-all-and-here-s-what-likely-is-bb49651cda16">positive trends among young people with decreased levels of depression</a> and cited two major factors that occurred during the pandemic: teens are getting more sleep, and they’re spending more time with family.In addition, GLAAD (formerly known as the Gay and Lesbian Alliance Against Defamation) recently published its first-ever Social Media Safety Index report that examined social media platforms and LGBTQ+ youths’ involvement and usage. While the report cited an <a rel="noopener" target="_blank" href="https://www.glaad.org/smsi">increase in hate speech and other hostile forums</a> on social media, other analysts provided a more nuanced interpretation, citing that <a rel="noopener" target="_blank" href="https://onezero.medium.com/social-media-when-youre-queer-hazard-or-haven-ab01dfc53611">social media platforms provide a much-needed lifeline for LGBTQ+ youth as they seek information and support</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

Social Links: Embedding social media posts can be considered copyright infringement…but is it?