Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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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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Lawrence W. Gallick

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

Social Links: TikTok Tussles, Teen Privacy Push, and the Thumbs-Up That Sealed the Deal

Utah’s New App Store Age Verification Law: What S.B. 142 Means for Kids, Parents, and Tech

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Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them.The National Labor Relations Board decided <a href="http://www.bna.com/chipotle-worker-social-n73014446651/" target="_blank" rel="noopener">a social media policy that Chipotle had in place for its employees violates federal labor law</a>.A group of lawmakers plans to introduce <a href="http://www.theatlantic.com/politics/archive/2015/08/bill-to-criminalize-revenge-porn-coming-after-recess/458160/" target="_blank" rel="noopener">legislation that would criminalize revenge porn</a>—explicit images posted to the web without the consent of the subject—at the federal level.The Truth in Advertising organization <a href="http://abovethelaw.com/2016/08/kardashian-media-empire-under-legal-scrutiny/" target="_blank" rel="noopener">sent the Kardashians a letter </a>threatening to report them for violating the FTC’s endorsement guides. This <a href="http://www.wsj.com/articles/fda-sends-warning-letter-after-kim-kardashian-touts-morning-sickness-drug-1439401985" target="_blank" rel="noopener">isn’t the first time</a> the legality of the famous family’s social media posts has been called into question. If only Kim would read <a href="http://www.sociallyawareblog.com/2015/12/21/influencer-marketing-tips-for-a-successful-and-legal-advertising-campaign/" target="_blank" rel="noopener">our influencer marketing blog posts</a>.According to one study, <a href="https://contently.com/strategist/2016/08/16/study-68-of-publishers-use-editorial-staff-to-create-native-ads/" target="_blank" rel="noopener">68% percent of publishers</a> use editorial staff to create native ads.Twitter launched <a href="http://venturebeat.com/2016/08/24/twitter-launches-button-letting-you-send-direct-messages-from-any-website/?utm_content=buffer67be7&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer" target="_blank" rel="noopener">a button that a company can place on its website</a> to allow users to send a direct message to the company’s Twitter inbox.The Center for Democracy & Technology criticized the Department of Homeland Security’s proposal to ask visa-waiver-program applicants to disclose their social media account information.UK lawmakers issued a report calling on the big social media companies to do more to <a href="https://www.yahoo.com/tech/social-media-giants-must-more-police-sites-uk-134051320--finance.html" target="_blank" rel="noopener">purge their platforms of hate speech</a> and material that incites violence.<a href="http://www.nwaonline.com/news/2016/aug/20/social-media-playing-bigger-role-in-nor/?news" target="_blank" rel="noopener">Social media is playing bigger role in jury selection</a>, Arkansas prosecutors and criminal defense lawyers say.A day in the life of <a href="http://digiday.com/publishers/the-economist-denise-law/" target="_blank" rel="noopener">the Economist‘s head of social media</a>.Seven things smart <a href="http://www.inc.com/melanie-deziel/7-things-smart-entrepreneurs-do-on-instagram.html" target="_blank" rel="noopener">entrepreneurs do on Instagram</a>.Four ways to get busy people to <a href="http://time.com/money/4461991/get-people-to-read-emails/?xid=soc_socialflow_facebook_realsimple" target="_blank" rel="noopener">read the email</a> you send them.Want to know how Facebook views your political leanings? <a href="http://www.nytimes.com/2016/08/24/us/politics/facebook-ads-politics.html?_r=0" target="_blank" rel="noopener">Here’s the way</a> to find out.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Social Links: Google penalizes sites with pop-up ads; proposed Federal legislation to criminalize revenge porn; ad industry group questions Kardashians’ social media posts

Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them. The National Labor Relations Board decided a

Social Links: Google penalizes sites with pop-up ads; proposed Federal legislation to criminalize revenge porn; ad industry group questions Kardashians’ social media posts

The latest issue of our Socially Aware newsletter is now available <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt60f442090c53a750/62730e355f7b601eaaebcd36/160823-socially-aware.pdf" target="_blank" rel="noopener">here</a>.In this issue of Socially Aware, our <a href="https://www.burtonawards.com/winners/law360-distinguished-legal-writing-award-winners-law-firms/" target="_blank" rel="noopener">Burton Award</a> winning guide to the law and business of social media, we discuss the impact online trolls are having on social media marketing; we revisit whether hashtags should be afforded trademark protection; we explain how an unusual New Jersey law is disrupting the ecommerce industry and creating traps for the unwary; we explore legal and business implications of the Pokémon Go craze; we examine a recent federal court decision likely to affect application of the Video Privacy Protection Act to mobile apps; we discuss a class action suit against an app developer that highlights the legal risks of transitioning app customers from one business model to another; and we describe how Europe’s Right to Be Forgotten has spread to Asia.All this—plus infographics illustrating the enormous popularity of Pokémon Go and the unfortunate prevalence of online trolling.

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Now Available: The August Issue of Our Socially Aware Newsletter

Now Available: The August Issue of Our Socially Aware Newsletter

The latest issue of our Socially Aware newsletter is now available here. In this issue of Socially Aware, our Burton Award winning guide to the law and business

We have <a href="http://www.sociallyawareblog.com/2014/07/21/data-for-the-taking-using-the-cfaa-to-combat-web-scraping/" target="_blank" rel="noopener">written before</a> about website operators’ use of the federal <a href="https://www.law.cornell.edu/uscode/text/18/1030" target="_blank" rel="noopener">Computer Fraud and Abuse Act</a> (CFAA) to combat data scraping. We have <a href="http://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">also noted</a> a number of recent cases in which courts held that social media platforms, rather than the users of those platforms, have the right to control content on and access to the relevant websites. A recent Ninth Circuit decision, <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/12/13-17102.pdf" target="_blank" rel="noopener">Facebook v. Power Ventures</a>, brings these two trends together.Power Ventures, the defendant, operated a website that aggregated users’ content, such as friends lists, from various social media platforms. In an attempt to increase its user base, Power Ventures initiated an advertising campaign that encouraged users to invite their Facebook friends to Power Ventures’ site.Specifically, an icon on the Power Ventures site gave users the option to “Share with friends through my photos,” “Share with friends through events,” or “Share with friends through status,” and displayed a “Yes I do” button that users could click. If the user clicked the “Yes I do” button, Power Ventures would create an event, photo, or status on the user’s Facebook profile. In some cases, clicking the button also caused an email to be sent to the user’s friends “from” Facebook stating that the user had invited them to a Facebook event.Upon becoming aware of this activity, Facebook sent Power Ventures a cease and desist letter informing Power Ventures that it had violated Facebook’s terms of use and demanding that Power Ventures stop soliciting Facebook users’ information. Facebook also blocked Power Ventures’ IP address from accessing Facebook. When Power Ventures changed its IP address and continued to access the site, Facebook sued, alleging among other things that Power Ventures had violated the CFAA. As we discussed at greater length in our <a href="http://www.sociallyawareblog.com/2014/07/21/data-for-the-taking-using-the-cfaa-to-combat-web-scraping/" target="_blank" rel="noopener">previous article</a>, the CFAA imposes liability on anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.”In analyzing Facebook’s CFAA claim, the court reasoned that Power Ventures did not access Facebook’s computers without authorization initially because “Power users arguably gave Power permission to use Facebook’s computers to disseminate messages” and, accordingly, “Power reasonably could have thought that consent from Facebook users to share the promotion was permission for Power to access Facebook’s computers.” That all changed, however, when Facebook sent Power Ventures the cease and desist letter expressly rescinding whatever authorization Power Ventures may have otherwise had. According to the court, “[t]he consent that Power had received from Facebook users was not sufficient to grant continuing authorization to access Facebook’s computers after Facebook’s express revocation of permission.”The court employed a colorful analogy to support its reasoning:Suppose that a person wants to borrow a friend’s jewelry that is held in a safe deposit box at a bank. The friend gives permission for the person to access the safe deposit box and lends him a key. Upon receiving the key, though, the person decides to visit the bank while carrying a shotgun. The bank ejects the person from its premises and bans his reentry. The gun-toting jewelry borrower could not then reenter the bank, claiming that access to the safe deposit box gave him authority to stride about the bank’s property while armed. In other words, to access the safe deposit box, the person needs permission both from his friend (who controls access to the safe) and from the bank (which controls access to its premises). Similarly, for Power to continue its campaign using Facebook’s computers, it needed authorization both from individual Facebook users (who controlled their data and personal pages) and from Facebook (which stored this data on its physical servers).Accordingly, the court held that, following receipt of Facebook’s cease and desist letter, Power Ventures intentionally accessed Facebook’s computers knowing that it was not authorized to do so, making Power Ventures liable under the CFAA.On one level, Facebook v. Power Ventures can be seen as a battle between two competing social media platforms over valuable user data. Certainly it is easy to understand why Facebook would object to Power Ventures poaching Facebook’s data. But the case can also be seen as an example of social media operators exerting the right to control their platforms, and the content and data that users post to those platforms, even against the users’ own wishes.In this sense, one can place Facebook v. Power Ventures in the <a href="http://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">line of recent cases</a> holding that, at the end of the day, it is the social media platform operator and not the user that controls the platform. And that is an important fact for individuals and companies to keep in mind when they are investing time and money to establish and maintain a social media presence on a platform controlled by someone else.*          *        *For more regarding online data scraping and the Computer Fraud and Abuse Act, see our earlier blog post <a href="http://www.sociallyawareblog.com/2014/07/21/data-for-the-taking-using-the-cfaa-to-combat-web-scraping/" target="_blank" rel="noopener">Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping</a>.

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Ninth Circuit Case Demonstrates That the Social Media Platform, Not the User, Is in Control

Ninth Circuit Case Demonstrates That the Social Media Platform, Not the User, Is in Control