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)

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Often hailed as <a href="http://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/" target="_blank" rel="noopener">the law that gave us the modern Internet</a>, <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230 of the Communication Decency Act</a> generally protects online platforms from liability for content posted by third parties. Many commentators, <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">including us here at Socially Aware</a>, have noted that Section 230 has faced significant challenges in recent years. But Section 230 has proven resilient (as we previously noted <a href="https://www.sociallyawareblog.com/2018/08/22/section-230-survives-to-fight-another-day-following-california-supreme-court-decision/" target="_blank" rel="noopener">here</a> and <a href="https://www.sociallyawareblog.com/2017/02/08/snapchat-section-230-speed-filter-case/" target="_blank" rel="noopener">here</a>), and that resiliency was again demonstrated by the Second Circuit’s recent opinion in <a href="https://scholar.google.com/scholar_case?case=18029531304035617061&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank" rel="noopener">Herrick v. Grindr, LLC</a>.As we noted in our <a href="https://www.sociallyawareblog.com/2018/03/15/lawsuit-against-online-dating-app-grindr-dismissed-under-section-230-of-the-communications-decency-act/" target="_blank" rel="noopener">prior post</a> following the district court’s order dismissing plaintiff Herrick’s claims on Section 230 grounds, the case arose from fake Grindr profiles allegedly set up by Herrick’s ex-boyfriend. According to Herrick, these fake profiles resulted in Herrick facing harassment from over 1,000 strangers who showed up at his door over the course of several months seeking violent sexual encounters.Herrick sued Grindr, claiming that the company was liable to him because of the defective design of the app and the failure to police such conduct on the app. Specifically, Herrick alleged that the Grindr app lacked safety features that would prevent bad actors such as his former boyfriend from using the app to impersonate others. Herrick also claimed that Grindr had a duty to warn him and other users that it could not protect them from harassment stemming from impersonators.Herrick asserted a large number of claims, including negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, failure to warn, failure to respond, product liability and negligent design, copyright infringement, fraud, negligent misrepresentation, promissory estoppel, and false advertising. The case attracted considerable attention, including concern from social media companies, due to the prospect of platform operators being held liable for the bad conduct of their users, with some commentators theorizing that the case <a href="https://www.nbcnews.com/tech/tech-news/grindr-harassment-suit-could-change-legal-landscape-tech-free-speech-n954976" target="_blank" rel="noopener">could change the legal landscape of tech and free speech</a>.Grindr moved to dismiss Herrick’s suit, on the grounds that all his claims (other than the copyright infringement claim) were barred under Section 230. On January 25, 2018 a federal district court in New York <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2017cv00932/468549/63/" target="_blank" rel="noopener">granted Grindr’s motion to dismiss</a> and Herrick appealed shortly thereafter. Unfortunately for Herrick, and for those who would advocate for a narrow interpretation of Section 230, the Second Circuit sided with the trial court, ruling against Herrick in a 3-0 <a href="http://src.bna.com/GKM" target="_blank" rel="noopener">Summary Order</a>.Despite Herrick’s attempts to avoid the application of Section 230, the Second Circuit applied a standard three-part Section 230 analysis,  noting “[i]n applying the statute, courts have broken it down into three component parts, finding that it shields conduct if the defendant [A] is a provider or user of an  interactive computer service, [B] the claim is based on information provided by  another information content provider and [C] the claim would treat the defendant  as the publisher or speaker of that information.”Interactive Computer ServiceThe court cited well-established authority to reaffirm that the definition of interactive computer service includes social networking platforms and online matching sites that, like Grindr, provide users with access to a common server. Furthermore, Herrick’s Amended Complaint expressly conceded that Grindr was an interactive computer service.Claim Arises From Actions of a Third-Party Content ProviderHerrick argued that his claims arose from Grindr’s management of it users, as opposed to specific user content. The court, however, held that Herrick’s product liability claims arose directly from the fake profiles that Herrick’s ex-boyfriend created along with specific direct messages the ex-boyfriend exchanged with other users. Thus, the court ruled, the second prong of the test was satisfied because the basis for Herrick’s claims that Grindr’s product was defective and dangerous arose directly from content provided by a third-party.The court further reasoned that Herrick’s claims for negligence, intentional infliction of emotional distress and negligent infliction of emotional distress related in part to the app’s geolocation function. The court went on to conclude that this function was also based on information provided by a third-party, because the geolocation functions is “based on real-time streaming of a user’s mobile phone’s coordinate data,” which was provided by Herrick’s ex-boyfriend.Publisher/Speaker of Offensive ContentThe court reiterated that the core purpose of Section 230 is to bar lawsuits seeking to hold a service provider liable for conducting traditional editorial functions (e.g., deciding to publish, remove, or alter third-party content). Thus, claims premised on the fact that a service provider refused to remove offensive content produced by a third-party are barred.Herrick again attempted to argue that his claims were premised not on these traditional editorial functions or Grindr’s role as a publisher of third-party content, but on the design and operation of the app itself—specifically, its lack of safety features. The court rejected this argument, reasoning that claims based on the “structure and operation” of an interactive computer service were barred by Section 230 because the lack of safety features reflects “choices about what content can appear on the website and in what form, which are editorial choices,” citing the First Circuit’s decision in <a href="https://caselaw.findlaw.com/us-1st-circuit/1728752.html" target="_blank" rel="noopener">Jane Doe No. 1 v. Backpage.com</a>.The court also rejected Herrick’s argument, based on <a href="https://caselaw.findlaw.com/us-9th-circuit/1678146.html" target="_blank" rel="noopener">Doe v. Internet Brands</a>, that his failure to warn claim was not barred by Section 230. The court distinguished Doe v. Internet Brands, noting that in that case “there was no allegation that the defendant’s website transmitted potentially harmful content . . . [so] the defendant was therefore not an ‘intermediary’ shielded from  liability under § 230,” whereas “Herrick’s failure to warn claim is inextricably  linked to Grindr’s alleged failure to edit, monitor, or remove the offensive content  provided by his ex-boyfriend . . . [and,] accordingly, is barred by § 230.”Herrick’s Other ClaimsThe appeals court’s opinion focused heavily on the Sec 230 analysis, but the court also rejected Herrick’s claims for (1) failure to respond, holding that Grinder was exercising traditional editorial functions or in the alternative that it did not assist in the development of the unlawful conduct; (2) fraud and misrepresentation,  holding that Grindr’s Terms of Use made no claim that Grindr would remove illicit content and this claim lacked causation; and (3) promissory estoppel, holding that this claim was barred for lack of detrimental reliance.* * * *While Section 230 continues to face headwinds both in the courts and legislatively, Herrick shows that the statute continues to provide robust immunity for social media sites and other platform providers and online intermediaries. Indeed, it is amazing to think that, more than 20 years after its enactment, Section 230 continues to serve its original purpose of enabling online services to thrive without the threat of crippling liability for the bad acts of their users, particularly given that today’s online services are so different from those that existed when President Clinton signed the Communications Decency Act into law in 1996. But we will undoubtedly see additional attempts to rein in Section 230, so watch this space for further developments.

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

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Appeals Court Again Upholds Section 230 Protections in Case Against Grindr

Appeals Court Again Upholds Section 230 Protections in Case Against Grindr

Often hailed as the law that gave us the modern Internet, Section 230 of the Communication Decency Act generally protects online platforms from liability for co

<a href="http://gothamist.com/2019/02/28/revenge_porn_ny_law.php" target="_blank" rel="noopener">New York is now one</a> of the <a href="https://www.cybercivilrights.org/revenge-porn-laws/" target="_blank" rel="noopener">43 states where “revenge porn,”</a> the posting of explicit photographs or videos to the Internet without the subject’s consent, is punishable by law. See how far the states have come – find out how many had criminalized revenge porn as of 2014, <a href="https://www.sociallyawareblog.com/2014/01/29/keeping-privates-private-the-legal-landscape-of-revenge-porn/" target="_blank" rel="noopener">when Socially Aware first covered the issue</a>.YouTube announced that it will not allow channels that promote anti-vaccination videos to run advertisements because such videos violate the platform’s policy, which, among other things, disallows the monetization of “dangerous content.” Many of the companies whose ads appeared alongside anti-vaccination content say they were not aware it was happening. <a href="https://www.buzzfeednews.com/article/carolineodonovan/youtube-just-demonetized-anti-vax-channels" target="_blank" rel="noopener">Find out how that could be possible</a>.Senator John Kennedy (R-LA) has introduced<a href="https://www.kennedy.senate.gov/public/_cache/files/9/f/9ff92982-1a58-4cf5-9bda-8530e5078224/2D6F1D231B87F5B281A01893CEAA75DF.sil19328-own-your-own-data-.pdf" target="_blank" rel="noopener"> a bill that would give Internet users considerably more control over their personal data</a> by mandating that social media companies inform registrants—in simple, easy-to-understand terms—that they are entering into an agreement licensing their personal data to the company. Coined the Own Your Own Data Act, the legislation would also require social media platforms to make it easy for their registrants to cancel the licensing agreement and obtain the collected data and any analysis of it.Another privacy bill, this one proposed by Senators Ed Markey (D-MA) and Josh Hawley (R-MO), would amend the <a href="https://www.sociallyawareblog.com/2019/03/08/thank-you-next-enforcement-music-video-app-violates-coppa-will-pay-5-7-million/" target="_blank" rel="noopener">Children’s Online Privacy Protection Act</a> (COPPA) to completely prohibit the running of targeted advertisements on websites targeted to children. Find out <a href="https://www.engadget.com/2019/03/12/senate-markey-hawley-children-privacy-bill/" target="_blank" rel="noopener">how else the bill would amend COPPA, and how long companies would have to comply</a> with the amendment if it became law.The debate over <a href="https://www.postandcourier.com/opinion/courts-right-to-side-with-free-speech/article_4d227fa0-45d6-11e9-9b21-cf4244cb43d3.html" target="_blank" rel="noopener">whether politicians have a right to block people on social media</a> rages on.The United States isn’t the only country whose <a href="https://www.economist.com/the-americas/2019/03/16/jair-bolsonaro-brazils-president-is-a-master-of-social-media" target="_blank" rel="noopener">president favors social media</a> as a vehicle for sharing his views.A <a href="https://abovethelaw.com/2019/03/twitterlaw/" target="_blank" rel="noopener">#TwitterLaw symposium</a> is being held at the University of Idaho College of Law next month. Road trip, anyone?Even the <a href="https://www.harpersbazaar.com/celebrity/latest/a26621439/royal-family-social-media-guidelines/" target="_blank" rel="noopener">British Royal Family has to contend with social media trolls</a>.

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Julie O'Neill

YouTube disallows ads on anti-vax content; privacy bills aim to extend children’s protections from Internet harm, secure users’ control over data