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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INTRODUCTIONThis year, as the world celebrates the 25th anniversary of the World Wide Web, the Web’s founder, Tim Berners-Lee, has called for a fundamental reappraisal of copyright law.  By coincidence, this year we also anticipate a rash of UK and European legislative developments and court decisions centring on copyright and its application to the Web.In our “Copyright: Europe Explores its Boundaries” series of posts—aimed at copyright owners, technology developers and digital philosophers alike—we will examine how UK and European copyright is coping with the Web and the novel social and business practices that it enables.HYPERLINKING AND LINK HUBSEveryone that uses the Web uses hyperlinks, and most of us may never consider whether we need permission to share a hyperlink with our friends and colleagues.  As we know, hyperlinking is fundamental to the working of the Web.However, content owners, such as film distributors, music companies, sports rights holders and owners of literary works, are deeply concerned that certain uses of this fundamental Web tool are exposing their copyright-protected works to damaging and unauthorised use.  This is because the ability to hyperlink has led to the emergence of sites that host collections of hyperlinks to third party content (“Link Hubs”).  And many of these Link Hubs have achieved notoriety by providing access to precisely the kinds of content that rights holders are keen to protect (think Napster, think Megaupload…).Perhaps surprisingly, until very recently it has been unclear whether using this fundamental Web facility to link to third party content actually required the permission of the copyright owner of the linked content.  A recent decision by the EU’s highest court, the Court of Justice of the European Union (CJEU), has now clarified the position.SVENSSON vs. RETRIEVER SVERIGEIn the high profile case of Case-466/12 Svensson & Others v. Retriever Sverige AB (“Svensson”), the CJEU was asked to decide whether Retriever Sverige, the operator of a Link Hub, had acted in breach of copyright law by providing links to news articles made freely available on the website of the Göteborgs-Posten newspaper.  Svensson and other journalists said that Retriever Sverige’s inclusion, on its website, of the link to their articles infringed their exclusive right to make the articles available to the public.The question before the CJEU focused on whether or not the provision of a clickable link by Retriever Sverige constituted an act of “communication to the public” for the purposes of Article 3(1) of Directive 2001/29 (the “InfoSoc Directive”).  Under that provision, authors have the “exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”.The CJEU broke the question into two parts:<ul><li>Is linking an act of “communication of a work”?</li></ul>According to the CJEU, if a work is made available to the public in such a way that the public may access it, irrespective of whether the public in fact takes the opportunity to access that work, that is sufficient for there to be “an act of communication”.  The provision of clickable links to protected works amounts to the “making available” of those works and is therefore “an act of communication”.  So, this took Retriever Sverige’s hyperlinks half-way to infringing copyright.<ul><li>What is “the public”? </li></ul>The CJEU noted that term “public” refers to an indeterminate number of potential recipients and that it implies a “fairly large number of recipients”.  According to the CJEU, the provision of links on a website aimed at all potential users of the website amounts to a communication to a particular public.For Article 3(1) to apply, however, the question was whether the public to whom the link was communicated was (a) the same as the public to whom the original communication was made or (b) a “new public”:“a communication … concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorized the initial communication to the public”.Given that (i) the initial publication of the articles on the Göteborgs-Posten website consisted of a communication to all potential visitors to the website, and (ii) access to the articles on the Göteborgs-Posten website was not subject to any restrictive measures, the CJEU found that all Web users could, if desired, have free access to the articles on the Göteborgs-Posten website.  Therefore, in the CJEU’s opinion, the users of Retriever Sverige were deemed to be potential recipients of the initial Göteborgs-Posten communication; those users were a part of the same public taken into account by the journalists when they authorised the initial communication through Göteborgs-Posten.The CJEU decided that hyperlinking on Retriever Sverige was not prohibited by Article 3(1) of the InfoSoc Directive and copyright infringement did not occur because Svensson and others had already permitted the relevant public to view the articles.HYPERLINKING 1 – COPYRIGHT 0?Superficially, this looks like a victory for linking over copyright.  However, the CJEU’s decision does not give blanket approval to all types of linking; for example, linking will not be authorised if it is communicated to a “new public”.  One way of determining whether there is communication to a new public will be if restrictions in place around the linked content (a pay wall, for example) have been circumvented by the Link Hub.  This is because the new users via the Link Hub were not in the contemplation of the copyright holders when they authorised the original communication; so, in these circumstances the Link Hub would need the authorisation of the copyright holder.Based on this reasoning, it seems that, in Europe at least, linking designed to circumvent walled content restrictions, geographical restrictions or to restore access to deleted content is likely to amount to a communication to a “new public” and will require authorisation.  The key question is: what restrictions does a rights holder need to put in place in order to avoid its material being deemed to be freely available to the public?  Is a paywall required or merely free subscription or registration?  Is it possible to impose restrictions in a website’s legal terms of use or access?In addition, there seems to be direct application of the principle underlying the CJEU’s Svensson decision to other forms of content which should be of interest to rights holders beyond news media.Of course, although the decision of the CJEU brings some clarity, there remains scope for creativity in the establishment of content protection “restrictions”.  However, for now this decision balances the legitimate interests of copyright holders with on-going support for fundamental Web technology.  So, we are calling a tie on this one, along with the observation that this is a good example of copyright adapting to, rather than being defeated by, the new digital landscape.COMING NEXT…In the Svensson case, the CJEU also appeared to endorse “content framing”: it stated that its conclusion that linking is permitted where there is no “new public” is not altered if users of the link are given the impression that the work is appearing on the website on which the link is found when in fact it comes from another site.Tantalisingly, the questions of linking and framing will be reviewed again by the CJEU in Case C-348/13 BestWater International and in Case C-279/13 C More Entertainment AB v. Sandberg.  It will be interesting to see how the CJEU applies its decision in Svensson in these and subsequent cases.

Copyright: Europe Explores its Boundaries: Part 1: Link Hubs

INTRODUCTION This year, as the world celebrates the 25th anniversary of the World Wide Web, the Web’s founder, Tim Berners-Lee, has called for a fundamental rea

Copyright: Europe Explores its Boundaries: Part 1: Link Hubs

An aspiring actress moves to California and finds her life threatened. While standard fare for pulp fiction, the case of Garcia v. Google involves a twist on this well-worn plot line that not even the most imaginative Hollywood scriptwriter could invent.Cindy Lee Garcia answered a casting call for a low-budget amateur movie with the working title Desert Warrior. The film’s writer and producer told her that it would be a “historical Arabian Desert adventure film.” Ms. Garcia received $500 for her performance in the film. It turns out the actress was misled by the producer, Mark Basseley Youssef (aka Nakoula Basseley Nakoula, aka Sam Bacile), a Coptic Christian from Egypt, who was reportedly working in conjunction with an American non-profit, Media for Christ. The filmmakers had no intention of making an adventure film; rather, the end product – titled Innocence of Muslims – is an anti-Islamic account of the Prophet Mohammed that many Muslims find highly offensive and blasphemous.In July 2012, Mr. Youssef posted a 14-minute trailer of the film to YouTube, which is owned and operated by Google. Ms. Garcia appears for about five seconds in the trailer. The film overdubs her voice with lines she never actually spoke. In September 2012, an Egyptian cleric issued a fatwa against all involved in the film, calling on Muslims to “kill the director, the producer, and the actors and everyone who helped and promoted the film.” Ms. Garcia claims that she began to receive death threats and was forced to take precautionary measures at great expense to protect herself from retribution.Sending takedown notices under the Digital Millennium Copyright Act, Ms. Garcia demanded that Google remove all copies of the trailer from YouTube. Google declined to do so. In September 2012, Ms. Garcia sued Google, later also naming YouTube, asserting claims for copyright infringement. In October 2012, Ms. Garcia moved for a preliminary injunction, seeking to have Google take down all copies of the movie trailer from YouTube.In November 2012, Judge Fitzgerald, a federal judge in Los Angeles, denied Ms. Garcia’s motion. In a short <a href="http://www.scribd.com/doc/115172086/Garcia-v-Nakoula">opinion</a>, Judge Fitzgerald held that Ms. Garcia was unlikely to be able to establish a copyright in her brief performance in the film. Judge Fitzgerald also found that her motion should be denied because of her delay in seeking the injunction after first seeing the film on YouTube and because of her failure to meet the heightened standard required to obtain a mandatory injunction in the Ninth Circuit.Ms. Garcia appealed to the Ninth Circuit. On February 19, 2014, the Ninth Circuit issued a <a href="http://cdn3.sbnation.com/assets/4057751/innocencemuslimsorder.pdf">secret gag order</a> – which was only later made public – directing Google to take down all copies of Innocence of Muslims from YouTube and any other platforms within its control and to take all reasonable steps to prevent further uploads. The court directed that neither the parties nor their counsel could reveal the existence of the order. The court later explained that it issued the secret gag order “to prevent a rush to copy and proliferate the film before Google can comply with the order.”On February 26, 2014, the Ninth Circuit released its opinion to the public. Two of the members of the three-judge panel sided with Ms. Garcia. The majority found that Ms. Garcia was in fact likely to prevail on her copyright claims and had established the other factors, such as irreparable harm, required to obtain a preliminary injunction.In a lengthy dissent, Judge Smith expressed his strong disagreement with the majority’s holding, complaining that “the majority abandons restraint to procure an end (order the film be taken down) by unsuitable means (the Copyright Act).” Judge Smith warns that “the majority makes new law in this circuit in order to reach the results it seeks.” The Ninth Circuit, the circuit in question, is the home of Hollywood and its multibillion-dollar film industry.In reaching his opinion, Judge Smith considered the bounds of copyright protection set forth in Section 102 of the Copyright Act, which limits copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Judge Smith expressed his view that Ms. Garcia does not clearly have a copyright interest in her acting performance because (1) her acting performance is not a work; (2) she is not an author; and (3) her acting performance is too personal to be fixed.As to the requirement that there be a protectable “work” at issue, Judge Smith considered the types of works that the Copyright Act lists as protectable, none of which include an acting performance. An acting performance is more akin to a procedure or process, which is specifically excluded from copyright protection, than an original work. Judge Smith noted that a motion picture is a “work,” but the Copyright Act does not clearly place an acting performance within its sphere of copyrightable works.As to the authorship requirement, Judge Smith looked to the Ninth Circuit’s prior decision in Aalmuhammed v. Lee, in which an expert on the Spike Lee film Malcolm X, who suggested script revisions, directions to actors, and help with the editing, claimed a copyright interest in the final work. The Ninth Circuit rejected his claim. Judge Smith found the majority’s decision irreconcilable with Aalmuhammed. He noted that “[c]onsidering the number of contributors who inject the same or a greater amount of creativity into a film” when compared to Ms. Garcia’s minor role, the majority’s decision creates “an impenetrable thicket of copyright.”As to the fixation requirement, Judge Smith looked to the Ninth Circuit’s prior decision in Midler v. Ford Motor Co., in which the popular singer and actress Bette Midler sued Ford for misappropriating her voice in a commercial. Ford had a license in the song and paid someone to mimic Ms. Midler’s voice. The Ninth Circuit held that Ms. Midler’s voice is not copyrightable. “The sounds are not ‘fixed.’ What is put forward . . . here is more personal than any work of authorship.” Judge Smith recognized that Ninth Circuit precedent led to the conclusion that “just as the singing of a song is not copyrightable, while the entire song recording is copyrightable, the acting in a movie is not copyrightable, while the movie recording is copyrightable.”Finally, Judge Smith strongly disagreed with the majority’s conclusion that to the extent Ms. Garcia’s performance could qualify as a “work,” it was not a “work for hire.” Ms. Garcia did not enter into a written “work for hire” agreement. Nonetheless, such agreements are not required under the Copyright Act. The Copyright Act provides that a “work made for hire” is “a work prepared by an employee within the scope of his or her employment.” Judge Smith noted that in determining whether an individual is acting as an employee, courts generally look to “the hiring party’s right to control the manner and means by which the product is accomplished.” In his view, all the evidence pointed to the filmmakers’ complete control over Ms. Garcia’s work.Copyright experts have expressed their puzzlement at the majority’s legal analysis. In his widely followed <a href="http://blog.ericgoldman.org/">blog</a>, law professor Eric Goldman <a href="http://blog.ericgoldman.org/archives/2014/02/in-its-innocence-of-muslims-ruling-the-ninth-circuit-is-guilty-of-judicial-activism-garcia-v-google.htm">complained</a> that the decision “is so terrible that there’s simply no point trying to make sense of it.”On February 27, 2014, a day after the issuance of the opinion, YouTube filed an emergency motion for a stay pending the disposition of a petition for review by the full Ninth Circuit. YouTube warned that “[u]nder the panel’s rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright.”The next day, the court denied that motion but modified its <a href="http://s3.documentcloud.org/documents/1033939/google-order-usca9-2-28.txt">order</a> to provide that it “does not preclude the posting or display of any version of ‘Innocence of Muslims’ that does not include Cindy Lee Garcia’s performance.”Clicking on a link to the Innocence of Muslims on YouTube results in the following disclaimer: “This video is no longer available due to a copyright claim by an actress over her 5-second appearance in the video. A U.S. court has ordered Google to remove the video. We strongly disagree with this copyright ruling and will fight it. Sorry about that.” Of course, the Internet being the Internet, the film is available on other sites.It turns out that the film has also apparently still been popping up on YouTube from time to time. On March 25, 2014, Ms. Garcia <a href="http://pdfserver.amlaw.com/ca/Garcia%20v.%20Google.Motion%20for%20Sanctions.pdf">moved for sanctions</a> against Google, claiming it failed to stop users from uploading the film to YouTube. Ms. Garcia also complains that Google continues to publish links on its search engine to other sites where the video is available for viewing or download. Ms. Garcia accuses Google of “thumbing its nose at the Court” and seeks hundreds of thousands of dollars in sanctions. On March 26, 2014, the Ninth Circuit ordered Google to respond to Ms. Garcia’s emergency contempt motion within 72 hours.No one could fail to be sympathetic to Ms. Garcia’s situation. Tricked into participating in the production of a hate film, her life has been turned upside down. The Ninth Circuit’s decision, however, strains to find a legal justification for the court’s desired outcome. As other commentators have noted, this appears to be a case of bad facts making bad law.The Ninth Circuit panel may not have the last word here. Google has filed a petition seeking rehearing by the full Ninth Circuit. Ms. Garcia’s opposition to Google’s petition is due in early April, and other interested parties will have the right to submit friend of court briefs shortly after Ms. Garcia files her opposition. Facebook, Pinterest, Twitter, IAC/InterActiveCorp, the Los Angeles Times, the New York Times and the Washington Post have all expressed their intention to weigh in. We will see whether the full Ninth Circuit agrees to review the panel decision.

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Google Ordered to Remove All Copies of Anti-Islamic Film From YouTube After Actress With Bit Part Threatened by Outraged Muslims; Decision Puzzles Copyright Attorneys