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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Lawrence W. Gallick

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)

A New California Digital Content Law Establishes New Requirements for Advertisers and Vendors

California’s Assembly Bill 587 Loses Key Provisions After Legal Challenge from X

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A federal district court in Illinois allowed claims for vicarious and direct copyright infringement to proceed against an employee of the Chicago Cubs Baseball Club for retweeting a third-party tweet containing the plaintiff’s copyrighted material. <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3145&context=historical" target="_blank" rel="noopener noreferrer">Read the opinion</a>.Thinking of backing Biden in November? Would his <a href="https://www.cnbc.com/2020/01/17/biden-wants-to-get-rid-of-techs-legal-shield-section-230.html">unequivocal opinion</a> on <a href="https://www.law.cornell.edu/uscode/text/47/230">Section 230</a> of the Communications Decency Act affect your decision?In an <a href="http://business.cch.com/ipld/GregYoungPublishingZazzle20191120.pdf" target="_blank" rel="noopener noreferrer">opinion important to platforms that monetize user-generated content</a>, the U.S. Court of Appeals for the Ninth Circuit held the safe harbor provisions in <a href="http://www.law.cornell.edu/uscode/text/17/512" target="_blank" rel="noopener noreferrer">§512(c) of the Digital Millennium Copyright Act (DMCA)</a> did not exempt Zazzle—a company that creates and sells items such as t-shirts and mugs bearing images uploaded by users—from copyright liability for willfully infringing 35 separate copyrighted works. In one of this blog’s most popular posts ever, I explain <a href="https://www.sociallyawareblog.com/2016/08/10/ugcrisk/" target="_blank" rel="noopener noreferrer">how platforms that commercialize their user-generated content can reduce their risk</a>.The advertising industry and the U.S. Chamber of Commerce are encouraging California Attorney General Xavier Becerra to <a href="https://www.mediapost.com/publications/article/346379/ad-groups-want-california-to-hold-off-enforcing-pr.html?utm_source=newsletter&utm_medium=email&utm_content=readmore&utm_campaign=117012&hashid=NDVHOmKrFJOy4V9Oy6E3fBNv4VU" target="_blank" rel="noopener noreferrer">postpone the anticipated July enforcement</a> of the <a href="https://www.mofo.com/special-content/california-consumer-privacy-act/" target="_blank" rel="noopener noreferrer">California Consumer Privacy Act</a>, citing the law’s complexity.The estate of the late musician Prince successfully brought a copyright infringement claim against an individual who unofficially recorded and uploaded videos containing performances of copyrighted songs. Accordingly to a federal district court in Massachusetts, the videos do not qualify for the fair use exception to copyright infringement because the uploader/defendant “did not imbue Prince’s musical compositions with new meaning or add any of his own expression to the underlying works.” In a controversy as old as the Internet itself, <a href="https://www.euronews.com/2020/01/17/should-social-media-users-have-to-use-their-real-names" target="_blank" rel="noopener noreferrer">Germans are debating</a> whether social media users should be permitted to remain anonymous.Actor Steven Seagal will pay more than $300,000 to resolve U.S. Securities and Exchange Commission claims that he failed to tell Twitter and Facebook followers he was being paid to promote an initial coin offering.Twitter has a special process for reviewing tweets by public figures—including President Trump—that have been flagged for potentially violating the platform’s rules. This <a href="https://fortune.com/2020/01/15/twitter-top-lawyer-vijaya-gadde-blocks-tweets-donald-trump/" target="_blank" rel="noopener noreferrer">profile of Twitter’s top lawyer</a>, Vijaya Gadde, describes it.

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.











Anthony Ramirez

Social Links: Biden’s stance on CDA §230; liability for user-generated content; Twitter’s process for reviewing Trump’s tweets

A federal district court in Illinois allowed claims for vicarious and direct copyright infringement to proceed against an employee of the Chicago Cubs Baseball 

Social Links: Biden’s stance on CDA §230; liability for user-generated content; Twitter’s process for reviewing Trump’s tweets

Every day, social media users upload millions of images to their accounts; each day 350 million photos are uploaded to Facebook alone. Many social media websites make users’ information and images available to anyone with a web browser. The wealth of public information available on social media is immensely valuable, and the practice of webscraping—third parties using bots to scrape public information from websites to monetize the information—is increasingly common.The photographs on social media sites raise thorny issues because they feature individuals’ biometric data—a type of data that is essentially immutable and highly personal. Because of the heighted privacy concerns, collecting, analyzing and selling biometric data was long considered taboo by tech companies — at least until Clearview AI launched its facial recognition software.<h5>Clearview AI’s Facial Recognition Database</h5>In 2016, a developer named Hoan Ton-That began creating a facial recognition algorithm. In 2017, after refining the algorithm, Ton-That, along with his business partner Richard Schwartz (former advisor to Rudy Giuliani) founded Clearview AI and began marketing its facial recognition software to law enforcement agencies. Clearview AI reportedly populates its photo database with publicly available images scraped from social media sites, including Facebook, YouTube, Twitter, and Venmo, and many others. <a href="https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html" target="_blank" rel="noopener">The New York Times</a> reported that the database has amassed more than three billion images.By analyzing the biometric information from the images in the database, Clearview AI allows a user to upload a photo of any person and immediately see all publicly available photos of that person, along with links to where those photos appear. According to the company, Clearview AI’s facial recognition software has been used by more than 600 law enforcement agencies, including the FBI and the Department of Homeland Security.While Clearview AI touts its software as groundbreaking, such an expansive facial recognition database raises serious privacy concerns. Several U.S. senators, along with several digital rights groups such as the Electronic Frontier Foundation, have criticized Clearview AI for eroding individual privacy rights. Recently, <a href="https://www.nytimes.com/2020/01/22/technology/clearview-ai-twitter-letter.html">Twitter sent a cease-and-desist letter to Clearview AI</a> accusing Clearview AI of violating Twitter’s policies and demanding that Clearview AI stop taking photos and other data from the site. Similar cease and desist letters from Google, Facebook, Venmo and YouTube reportedly followed.<h5>Litigation Against Clearview AI</h5>Clearview AI has received additional scrutiny after being served with three class action complaints, two <a href="https://www.classaction.org/media/hall-v-clearview-ai-inc-et-al.pdf" target="_blank" rel="noopener">pending</a> in the <a href="https://www.courthousenews.com/wp-content/uploads/2020/01/Surveillance-1.pdf" target="_blank" rel="noopener">U.S. District Court for the Northern District of Illinois</a> and one pending in the <a href="http://websterbook.com/wp-content/uploads/2020/02/Clearview-AI-Class-Action-Lawsuit.pdf" target="_blank" rel="noopener">U.S. District Court for the Eastern District of Virginia</a>. In each lawsuit, the plaintiffs are seeking an injunction that will (a) bar Clearview AI from collecting the class members’ photographs and (b) order Clearview AI to delete all class members’ data from the company’s database, potentially destroying Clearview AI’s business. The complaints in these cases provide examples of some of the legal claims available to individuals to combat unauthorized webscraping of their private information.In the first lawsuit, the plaintiff, Illinois resident David Mutnick, seeks class certification on behalf of a nationwide Constitutional Rights Class as well as an Illinois Class. On behalf of those classes, Mutnick alleges a combination of constitutional and state law claims.Mutnick asserts a variety of constitutional claims arising under the First, Fourth and Fourteenth Amendments, along with violation of the Contracts Clause. While Clearview AI is not a state actor and thus typically not subject to constitutional claims, Mutnick argues that Clearview AI conspired with state actors to violate his federally protected rights and Clearview AI is a liable private party under a “joint participation” theory.In the second lawsuit, the plaintiff, Illinois resident Anthony Hall, asserts several state law claims on behalf of a class of Illinois residents. Hall alleges that Clearview AI’s unauthorized webscraping and sale of its software give rise to a common law conversion claim and violate the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2356&ChapterID=67" target="_blank" rel="noopener">Illinois Consumer Fraud and Deceptive Business Practices Act</a>.Additionally, both Mutnick and Hall also allege multiple violations of the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3004&ChapterID=57" target="_blank" rel="noopener">Illinois Biometric Information Privacy Act</a>. This Illinois law: (1) prohibits private companies from collecting individual biometric data without first notifying the individual and obtaining their written consent; (2) limits the circumstances under which biometric data may be disclosed; and; (3) prohibits private entities from profiting from the biometric information. Under the statute, individuals have a private right of action to enforce the law against companies that violate it and may recover up to $5,000 for each intentional or reckless violation.The Illinois Biometric Information Privacy Act is currently the most stringent biometric privacy law in the United States, and it is the only biometric privacy law that provides a private right of action. It is a powerful statute.In the third lawsuit, the plaintiff, Virginia resident Shelby Roberson, asserts several state law claims. Roberson alleges that by scraping the class members’ images, Clearview AI violated several provisions off the <a href="https://law.lis.virginia.gov/vacode/title18.2/chapter5/section18.2-152.1/" target="_blank" rel="noopener">Virginia Computer Crimes Act</a>. She also alleges that Clearview AI’s use of the images violates <a href="https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-40/" target="_blank" rel="noopener">Va. Code § 8.01-40</a>, a state law provision that gives individuals the right to control the commercial use of their names and images.The outcome in each of these lawsuits remains to be seen, but given the privacy implications of Clearview AI’s software, it would be surprising if more parties don’t also assert claims against Clearview AI.<h5>Other Potential Claims of Unauthorized Webscraping Against Clearview AI</h5>The various social media sites from which Clearview AI took the photos that populate its database have tools at their disposal to combat unauthorized webscraping.<ul><li><a href="https://www.law.cornell.edu/uscode/text/18/1030" target="_blank" rel="noopener">Computer Fraud and Abuse Act:</a>(CFAA): The CFAA prohibits intentionally accessing a computer without authorization, or exceeding authorized access, and thereby obtaining information from any protected computer. The statute defines the term “computer” broadly enough to include all devices used to access social media websites. In some jurisdictions, <a href="https://casetext.com/case/ef-cultural-travel-bv-v-zefer-corp" target="_blank" rel="noopener">a webscraper may be subject to liability under the CFAA merely by breaching a website’s terms of use</a>. The Ninth Circuit, however, has recently <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/17-16783/17-16783-2019-09-09.html" target="_blank" rel="noopener">interpreted the scope of the CFAA more narrowly</a>. Whether the CFAA prohibits unauthorized webscraping is an issue that <a href="https://www.law360.com/articles/1237505/linkedin-will-go-to-supreme-court-over-data-scraping" target="_blank" rel="noopener">may end up in the Supreme Court</a>.</li><li>Trespass to chattels: This common law tort action provides redress for the unauthorized use or intermeddling with another’s personal property. Traditionally the claim required an actual physical trespass. However, <a href="https://casetext.com/case/ebay-v-bidders-edge">some jurisdictions</a> have found that <a href="https://casetext.com/case/registercom-inc-v-verio-inc" target="_blank" rel="noopener">exceeding the scope of consent of use of private computer servers may amount to trespass to chattels</a>.</li><li>Breach of Contract: Third parties who agree to the terms of use of a website, such as by clicking that they agree, may be liable for breach of contract where they violate those terms by scraping data from the site. Even if a webscraper has not affirmatively agreed to the terms of use, some courts have found that once that party is clearly informed of the terms of use by any means, such as through a cease and desist letter, continuing to violate those terms <a href="https://casetext.com/case/registercom-inc-v-verio-inc-2" target="_blank" rel="noopener">could provide the basis for a breach of contract claim</a>.</li><li>Copyright Infringement: The Copyright Act protects “<a href="https://www.law.cornell.edu/uscode/text/17/102" target="_blank" rel="noopener">original works of authorship fixed in any tangible medium of expression</a>” and the “<a href="https://www.law.cornell.edu/uscode/text/17/501" target="_blank" rel="noopener">legal or beneficial owner of an exclusive right under a copyright</a>” may sue for infringement when its copyrights are infringed. The photos that Clearview AI copies to populate its database are copyrightable works and scraping the images may amount to copyright infringement. Whether social media sites would have standing to assert copyright infringement claims against Clearview AI would depend on the agreement with their users, but even if the social media sites do not have standing as the legal or beneficial owner of the images, the users themselves may.</li></ul>These are only some of the tools available to social media sites to combat unauthorized webscraping by firms like Clearview AI. And when it comes to copying personal photos, even individuals outside Illinois who are not protected by the Illinois Biometric Information Privacy Act may have independent misappropriation or breach of privacy claims. As other states consider enacting or expanding data privacy and biometric privacy laws, the number of options available to challenge unauthorized webscraping will likely continue to grow. In the meantime, Clearview AI and the controversy surrounding it highlight how important it is to understand artificial intelligence and how it intersects with the law.