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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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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The ability to associate goods and services with a specific domain name can make or break a business, so much so that companies are still willing to <a href="http://www.cwcs.co.uk/blog/2013/11/most-expensive-domain-names-ever-sold.html">fork over millions to purchase domain names</a>.  And although you may consider yourself lucky to have registered a catchy domain name that drives plenty of traffic to your website, query whether the domain name is actually your property; not only do companies that provide domain name registration services frequently take the position that domain names are not property, but at least one recent case law suggests this as well.The concept that domain names can be “owned” as intangible personal property seems reasonable on its face, particularly given the close relationship between domain names and trademarks, the latter of which historically have been considered property.  Domain names frequently contain a registrant’s trade name or trademark associated with the registrant’s goods or services.  Moreover, the <a href="http://www.law.cornell.edu/uscode/text/15/1125">Anticybersquatting Consumer Protection Act of 1999</a> (15 U.S. Code § 1125) permits a trademark owner to pursue an in rem action against a domain name that violates the mark owner’s rights, and the availability of an in rem action implies that the Act treats domain names as property.On the other hand, domain names and trademarks are distinguishable.  For example, certain prerequisites for federal trademark registration, such as proof of the mark being used in interstate commerce to identify a specific type of good or service, do not apply to domain name registrations (which instead are registrable on a first-come, first-served basis).  And although similar marks used by different companies can potentially co-exist depending on territorial and other factors, each registered domain name is unique, at least with respect to the applicable <a href="http://en.wikipedia.org/wiki/List_of_Internet_top-level_domains">top-level domain</a>.  (Given that uniqueness, and the ability of domain names to “point” Internet users to information sources, domain names <a href="http://www.leagle.com/decision/199961860FSupp2d558_1557">have been likened to toll-free “vanity” telephone numbers</a>; like domain names, vanity telephone numbers that include a company’s name or mark are, in a sense, tools that can help drive traffic to the company’s offerings.)On November 7, 2013, in <a href="http://law.justia.com/cases/federal/district-courts/virginia/vaedce/1:2013cv00891/297931/12">Alexandria Surveys, LLC v. Alexandria Consulting Group</a>, the <a href="http://www.vaed.uscourts.gov/">U.S. District Court for the Eastern District of Virginia</a> held that under Virginia law, domain names, like telephone numbers, are not property.  In Alexandria, two competitors, Alexandria Surveys LLC (“ASL”) and Alexandria Consulting Group (“ACG”), each sought the rights to the domain name ALEXANDRIASURVEY.COM, which previously had been registered by Alexandria Surveys International (“ASI”), a debtor in bankruptcy.  ASL had purchased from Cox Communications ASI’s former telephone number and domain name, which had not been scheduled by the trustee in ASI’s bankruptcy proceeding.  ASI’s estate was later reopened, and among other assets, the trustee auctioned off that same telephone number and domain name to ACG.  The bankruptcy court ordered ASL to hand over the disputed assets to ACG, and ASL appealed.The District Court, noting the absence of any on-point Fourth Circuit precedent, relied on the 2000 decision in <a href="http://law.justia.com/cases/virginia/supreme-court/2000/1991168.html">Network Solutions Inc. v. Umbro International, Inc. et al.</a>, in which the Virginia Supreme Court held that domain names are contractual rights rather than property rights subject to garnishment, that is, that they are merely “the product of a contract for services between the registrar and registrant,” because they cannot exist without the provider performing services under the applicable domain name registration services agreement.  Although the court in Alexandria acknowledged a split in authority concerning the proprietary nature of telephone numbers, the court ultimately agreed with the Virginia Supreme Court’s conclusion that “Virginia does not recognize an ownership interest in . . . web addresses[,]” and held that ASI’s domain names were not transferred as part of the estate.  Although the court in Alexandria acknowledged that a domain name can be valuable, the court reasoned that such value is subjective and therefore in itself insufficient to support an argument that domain names constitute property.The view that domain names are not personal property can be viewed as contrary to the <a href="http://www.ca9.uscourts.gov/">Ninth Circuit’s</a> well-known 2003 ruling in <a href="http://caselaw.findlaw.com/us-9th-circuit/1483800.html">Gary Kremen v. Stephen Michael Cohen, et al.</a>, concerning the wrongful transfer of the highly lucrative domain name SEX.COM.  In Kremen, <a href="http://www.kremen.com/">Gary Kremen</a>, the original registrant of SEX.COM, sought to recover against Network Solutions (“NSI”) under theories of breach of contract and conversion after NSI transferred the domain name to Stephen Cohen without his authorization.  Although Kremen’s breach of contract claim failed for want of consideration—Kremen had registered SEX.COM in the mid-1990s, when NSI was issuing domain name registrations to companies and individuals free of charge—the Ninth Circuit ruled that a registrant does have a property right in a registered domain name and that the unauthorized transfer of that domain name serves as a basis for a claim of conversion.  In support of this conclusion, the Ninth Circuit pointed out that domain names represent an interest that is well-defined; that domain names are subject to exclusive possession or control; and that registrants can have a legitimate claim to exclusivity over domain names.Meanwhile, some domain name registration service providers go to great lengths to inform their customers that domain names are not property.  <a href="https://www.namecheap.com/legal/domains/registration-agreement.aspx">Namecheap’s</a> registration agreement states: “You further agree that domain name registration is a service, that domain name registrations do not exist independently from services provided pursuant to this or a similar registration agreement with a registrar, and that domain name registration services do not create a property interest.”  And GoDaddy’s registration agreement requires customers to “acknowledge and agree that by registering a domain name, you are not acquiring any property rights in that domain name.”Also keep in mind that treating domain names as property is not without potential problems.  For example, as the Virginia Supreme Court pointed out in Network Solutions, treating domain names as property and thereby subjecting them to garnishment could open the door to garnishment of other business indicia, such as corporate names, “by serving a garnishment summons on the State Corporation Commission since the Commission registers corporate names and, in doing so, does not allow the use of indistinguishable corporate names.”  It is unclear how problems like these might be resolved in the future.For now, the answer to whether domain names constitute personal property is a tough question and may depend on the jurisdiction where a claim is ultimately raised.  And, from a practical standpoint, care should be taken in how domain names are treated in commercial transactions, given that they are frequently among a business’s most important features.

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You May Not Necessarily Be the Master of Your Domain

You May Not Necessarily Be the Master of Your Domain

The ability to associate goods and services with a specific domain name can make or break a business, so much so that companies are still willing to fork over m

If an employee calls his supervisor a “nasty motherf[**]ker” on Facebook, would the employee lose the protection that he would otherwise enjoy under the National Labor Relations Act (NLRA)?  Probably not, according to National Labor Relations Board (NRLB) decisions like Pier Sixty LLC.In Pier Sixty, an employee reacted to a labor dispute by posting the following message about his supervisor on Facebook: “Bob is such a NASTY MOTHER F[**]KER don’t know how to talk to people!!!!!  F[**]k his mother and his entire f[**]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Despite the obscenities, the administrative law judge decided that the employee’s posting was concerted activity under the NLRA, which is activity by two or more employees that provides mutual aid or protection regarding terms or conditions of employment. This concerted activity was not egregious enough to cause the employee to lose the NLRA’s protections. Accordingly, the judge ordered the employer to reinstate the employee. This decision is not an anomaly among decisions interpreting the NLRA. In fact, a number of NLRB cases have held that use of the “f-word” did not exceed the bounds of the NLRA’s protection.This has left employers wondering: Is there any limit to what an employee can post? Can postings otherwise covered by the NLRA ever go too far and cross the line into unprotected activity? In a recent decision, Richmond District Neighborhood Center, the NLRB demonstrated that it will draw a line in the sand, albeit a thin and distant one. Certain situations, particularly egregious postings by employees on social media sites, may fall outside the protection of the NLRA, even when the postings otherwise involve concerted activity.Richmond District Neighborhood Center concerned a Facebook conversation between Ian Callaghan and Kenya Moore, who were both employed as teen activity leaders at the Richmond Neighborhood District Center, a non-profit organization that provides youth and family community programs. In a conversation visible only to their Facebook friends, Callaghan and Moore complained about management and discussed plans to defy the Center’s rules, posting statements such as:“…let them figure it out and they start loosin’ kids I ain’t help’n HAHA.”“…we’ll take advantage, play music loud … teach kids how to graffiti up the walls…. I don’t feel like being their b*tch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money. No more Sean. Let’s f*ck it up.”“HAHA we gone have hella clubs and take the kids.”“[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!”“I’ll be back to raise hell wit ya. Don’t worry.”The Center fired Callaghan and Moore after another employee brought the conversation to its attention. Callaghan and Moore contended their activity was protected under the NLRA.The administrative law judge found that the employees were engaged in concerted activity when voicing their disagreement with the Center’s management. The judge concluded, however, that even though the employees’ remarks constituted concerted activity, the activity was not protected under the NLRA. He stated: “[T]he question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.”The Center explained that the employees’ Facebook conversation was detrimental to its eligibility for grants and could raise serious concerns for parents of the youth served by the Center. The judge agreed, finding that the conversation was not protected under the NRLA because it “jeopardized the program’s funding and the safety of the youth it serves.” Moreover, the conduct rendered the two employees “unfit for further service.” The judge dismissed Callaghan and Moore’s complaint.Although this decision uncovers a previously obscured line in the sand with regard to protected social media activity, employers should still exercise considerable caution when responding to complaints about an employee’s use of social media. Postings that are otherwise protected by the NLRA are unlikely to lose that protection merely because they are offensive, even if they use profanity. Nonetheless, the Richmond case reveals that conduct found to endanger an employer’s funding or client safety may potentially cross the line and fall outside the wide protection of the NLRA.Editors’ Note:  The original posts quoted in this article did not contain asterisks; such asterisks have been added by the authors of this article.

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Mary Race assists clients with a wide range of challenging privacy compliance and data security matters. Her practice focuses on managing privacy risks and helping clients develop and implement comprehensive privacy programs across a variety of industries, including tech, retail, manufacturing, advertising, social media, and communications.

Mary Race

Uncovering a Line in the Sand: Employee Social Media Use and the NLRA