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.In 2023, Lawrence seconded at Amazon Lab126, where he led the negotiation of high-profile licensing deals for a variety of Amazon device teams. The secondment was an immersive opportunity to gain additional insights and experience from the perspective of in-house counsel. 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.

Anthony M. Ramirez

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Lawrence W. Gallick

SCOTUS Age-Gates the Internet: Free Speech Coalition v. Paxton and the Future of Adult Content Regulation

Social Links: Clickbait, Court Dates, and the Beige Apocalypse

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<h4>THE LAPTOP IN THE CLOSET</h4>This odyssey began when an old laptop was discovered by a curious 14-year-old boy in Kansas. The boy, known only as “QR,” used it to sneak onto a handful of adult websites over two months last year, racking up 118 virtual visits. His mother, Jane Doe, wasn’t amused.Now, Jane and QR are suing Chaturbate, Jerkmate, Superporn, and other sites many readers are currently pretending they’ve never heard of, claiming that <a href="https://www.documentcloud.org/documents/24520544-sb394-kansas/?ref=404media.co" target="_blank">Kansas law</a> should have kept QR out. The law doesn’t mess around: if a site has at least a quarter of its content deemed “harmful to minors,” it’s legally obligated to stop underage visitors. Every slip-up risks a $10,000 fine, and parents can demand at least $50,000 in damages. Jane and QR are asking for a cool $75,000 per site, citing medical bills, future expenses, pain, suffering, and assorted teenage angst.Their legal escort through this process is <a href="https://endsexualexploitation.org/articles/multiple-porn-sites-sued-for-violating-kansas-age-verification-law/?ref=404media.co" target="_blank">The National Center on Sexual Exploitation</a> (NCOSE), a group with a longstanding mission to keep explicit material off kids’ screens. NCOSE is framing this as a battle for QR’s health and future, painting Jane as a vigilant parent fighting an uphill battle against a digital bogeyman. But Kansas law defines “harmful to minors” with a net wide enough to catch even content discussing LGBTQ issues or non-sexual physical contact. This has, unsurprisingly, <a href="https://kansasreflector.com/2024/04/03/dont-look-kids-according-to-kansas-lawmakers-this-is-pornography/" target="_blank">raised an alarm</a> among free speech advocates.The Kansas lawsuits drop into an already overheated national debate about minors, porn, free speech, and digital privacy. More than 20 states have already passed <a href="https://avpassociation.com/4271-2/" target="_blank">similar age verification laws</a>, each sparking its own culture clash between parental control and constitutional rights.As for QR’s digital misadventures? It’s a safe bet his old laptop’s memory wasn’t the only thing that got rebooted.<h4>SAD, BEIGE, AND OVER</h4>A <a href="https://www.theverge.com/2024/11/26/24303161/amazon-influencers-lawsuit-copyright-clean-aesthetic-girl-sydney-nicole-gifford-alyssa-sheil" target="_blank">showdown</a> in the world of social media aesthetics fizzled out in a Texas courtroom this past April. The world can now breathe easy as content creators Alyssa Sheil and Sydney Nicole Gifford have ended their copyright <a href="https://wilson.gjassets.com/content/uploads/2024/12/Gifford_v_Sheil.pdf" target="_blank">lawsuit</a> over who owned the rights to the “neutral, beige, and cream” look. According to a filing in the Western District of Texas, they’ve agreed to drop the suit with prejudice and walk away. Whew…. We dodged a bullet here, folks.Gifford had accused Sheil of mimicking her social media presence, alleging it was a blatant copy/paste job designed to siphon her followers, engagement, and income. This clash wasn’t just about beige backdrops and cream-colored fashion, though. The claims cited copyright infringement, trade dress infringement, and violations of the Digital Millennium Copyright Act.Now that the lawsuit has ended, Sheil’s lawyers have put out a <a href="https://azalaw.com/first-of-its-kind-influencer-copyright-case-dropped-against-aza-client/" target="_blank">statement</a> celebrating the dismissal. Sheil herself stated: “I could have caved to Ms. Gifford’s demands, but this was a much larger fight and sets a precedent that young minority entrepreneurs will not allow ourselves to be bullied. Ms. Gifford attempted to intimidate me into leaving this industry. She failed miserably as the truth has prevailed today.”For her part, Gifford’s camp put a more <a href="https://www.law.com/texaslawyer/2025/05/28/media-attention-but-no-case-copyright-suit-fizzles-over-beige-vibe/?slreturn=20250603155217" target="_blank">diplomatic spin</a> on things, saying she’d chosen to settle “to focus on her business and growing family and to avoid the substantial additional expenses associated with litigation.” Her attorney added that the case “shed light on what is inappropriate within the creator industry and the need for the law to evolve to better protect content creators.”Three of Gifford’s claims were dismissed last December, so the April mediation was already significantly smaller in scope. Ultimately, Gifford decided it just wasn’t worth the hassle anymore and voluntarily dismissed all remaining claims with prejudice. The catch? Because Sheil had already filed an answer and the case had been active for nearly a year, Gifford couldn’t dismiss the lawsuit without Sheil’s consent. “Even though our client was entirely in the right, it is rare to secure a win like this where the plaintiff has to ask you for permission to give up,” said Sheil’s attorney Jason McManis.  <h4>X SUES VIETNAMESE CLICK FARM</h4>X has filed a <a href="https://www.bloomberglaw.com/public/desktop/document/XCorpvDOetalDocketNo425cv00546NDTexMay222025CourtDocket?doc_id=X5UL988TB238HFP7J0RF7OA62J3" target="_blank">federal lawsuit</a> accusing a Vietnamese click farm of orchestrating a <a href="https://www.independent.co.uk/news/world/americas/elon-musk-x-vietnam-engagement-farming-b2756948.html" target="_blank">sophisticated fraud scheme</a> that allegedly siphoned off payments from the platform’s Creator Revenue Sharing Program.According to the complaint, an eight-person team based in Hanoi operated a network of fraudulent accounts using stolen identities to manipulate engagement metrics. These accounts were “programmatically posting computer-generated content” and artificially boosting interactions within their network to trigger revenue payments from X’s system. The complaint describes this as a form of “coordinated platform manipulation” designed to exploit the platform’s algorithm, which rewards high levels of user engagement.X’s lawsuit seeks disgorgement of the funds and damages under federal racketeering and fraud statutes, naming 25 John Doe defendants alongside the eight identified individuals. The complaint alleges that the group funneled proceeds into more than a hundred U.S. bank accounts (also opened under stolen identities) before transferring them into accounts under their real names at nine Vietnamese banks. In total, X claims the group’s activity spanned more than 1,700 transactions.The fraudulent activity was eventually uncovered through private investigators and third-party payment processors, including <a href="https://www.international.pingpongx.com/" target="_blank">PingPong</a> and <a href="https://www.payoneer.com/" target="_blank">Payoneer</a>, who provided identification details linked to the suspect accounts.The complaint not only accuses the defendants of wire fraud and racketeering but also alleges trademark infringement, asserting that they misused X’s branding in promotional materials for their automation tools.X’s <a href="https://help.x.com/en/using-x/creator-revenue-sharing" target="_blank">Creator Revenue Sharing</a> program, launched in 2022, was originally designed to reward premium users for generating ad revenue through interactions. However, after major advertisers began <a href="https://www.cnn.com/2024/09/05/business/advertisers-x-withdrawal" target="_blank">leaving</a> the platform due to perceptions of increased hate speech and brand safety concerns, X restructured the program to reward accounts based on overall engagement metrics. This change inadvertently created a fertile environment for malicious <a href="https://scroll.in/article/1072706/there-is-a-reason-your-x-feed-has-turned-more-toxic-have-you-heard-of-engagement-farming" target="_blank">engagement farming</a>.X is now seeking injunctive relief to halt the operation and damages, including compensatory and punitive damages, to be determined at trial.<h4>COLORADO MAN SENTENCED FOR ONLINE THREATS</h4>Teak Ty Brockbank, a name you simply can’t make up, <a href="https://apnews.com/article/election-officials-threat-colorado-years-prison-a50f82a9fbad6ebf72eafef189a06f38" target="_blank">was sentenced</a> to three years in prison by Colorado District Court Judge Kato Crews for <a href="https://www.courthousenews.com/wp-content/uploads/2024/08/us-v-brockbank-complaint-us-district-of-colorado.pdf" target="_blank">threatening to kill</a> multiple government employees on social networking sites Rumble and Gab.Brockbank, 45, <a href="https://www.justice.gov/usao-co/pr/cortez-man-pleads-guilty-making-threats-against-election-official" target="_blank">pleaded guilty</a> to making violent online threats between late 2021 and 2022 against Colorado Secretary of State Jena Griswold, former Arizona Secretary of State (and now Governor) Katie Hobbs, a Colorado judge who oversaw his DUI case, and a few federal agents. He has been incarcerated since his <a href="https://apnews.com/article/colorado-arizona-online-threats-election-charges-0336cd51c5f08890acfbd074cc94e54a">August 2024 arrest</a>. His defense painted him as a misguided “keyboard warrior” drawn to the darker corners of Gab and Rumble, convinced the country was under siege and that it was his patriotic duty to rise up.In court, his attorney blamed Brockbank’s actions on drinking binges, loneliness, and a steady diet of QAnon conspiracies. They argued that while the posts were ugly and violent, there was no actual plan behind the threats. Even so, prosecutors pointed out that Brockbank’s behavior didn’t stop when he was sober, undermining the “blame it on the booze” defense.Before handing down the three-year sentence, Judge Crews read aloud some of Brockbank’s more chilling posts, including one that called for Secretary Griswold to “hang by the neck.” Crews called it “keyboard terrorism” and said the penalty had to be high enough to deter others. “The public must not accept this as the norm,” he said, reminding everyone in the courtroom that political violence, whether online or offline, will not be tolerated.Brockbank tried to pivot in his final statement, apologizing for his “ugly posts” and asking for home detention instead of prison time. Judge Crews noted that while Brockbank’s remorse seemed real, accountability mattered more.The case, which was investigated largely by a <a href="https://www.justice.gov/archives/opa/blog/justice-department-launches-task-force-combat-threats-against-election-workers-0" target="_blank">Justice Department task force</a> formed in 2021 to address rising threats against election officials, highlighted the disturbing overlap between online rhetoric and real-world consequences. Secretary of State Griswold made it clear she won’t be backing down. “I will not be intimidated,” she said.In the end, the lesson was clear: digital threats may feel like shouting into the void, but sometimes the void shouts back with a prison sentence.<h4>META’S AI AD PLAY</h4>Meta Platforms Inc. plans to <a href="https://www.cnet.com/tech/services-and-software/meta-wants-ai-to-handle-every-part-of-ad-creation-heres-what-that-means/" target="_blank">fully integrate</a> generative AI tools into its advertising suite by the end of next year in a move poised to reshape the marketing industry’s landscape.According to reporting by <a href="https://www.wsj.com/tech/ai/meta-aims-to-fully-automate-ad-creation-using-ai-7d82e249?reflink=desktopwebshare_permalink" target="_blank">The Wall Street Journal</a>, these advanced AI tools will allow brands to craft end-to-end ad campaigns directly within Meta’s platform. This includes everything from generating imagery and copy to targeting users based on location and preferences, all calibrated to the advertiser’s budget. In effect, Meta’s AI system is designed to streamline ad creation and targeting, potentially reducing the need for traditional advertising and media agencies, particularly for clients with smaller budgets.Currently, Meta’s ad platform offers limited AI capabilities to tweak and optimize ads before deployment on Facebook and Instagram. However, the new tools promise to automate the entire creative and targeting process, which may alter the roles of ad agencies.CEO Mark Zuckerberg has described this push as a “redefinition of the category of advertising,” underscoring Meta’s commitment to AI-powered solutions.While some industry observers interpret this as a threat to the agency ecosystem, Meta has taken care to emphasize that agencies will still play a crucial role. “We believe in the future of agencies,” <a href="https://www.linkedin.com/posts/alexorig_i-saw-some-misleading-commentary-about-meta-activity-7325276203299266560-HC8v/?utm_source=share&utm_medium=member_desktop&rcm=ACoAABT1-vwBpbFPNPWoAHdJKxeH0LrGUjvnXQg" target="_blank">said Alex Schultz</a>, Meta’s chief marketing officer and vice president of analytics. “AI will enable agencies and advertisers to focus precious time and resources on the creativity that matters. While we think there will ultimately be more automation in marketing, the role that agencies play is going to become ever more important through their ability to plan, execute, and measure across platforms.”For smaller advertisers, the appeal is clear. As Schultz put it, “Millions of small businesses rely upon our platform to grow. For these businesses who aren’t able to work with an agency, or don’t have time during their busy days to think about their creative or targeting, that’s where AI can help level the playing field.”While Meta’s push into AI-driven advertising doesn’t spell the end for agencies, it certainly signals a shift where technology is poised to take on a larger role in the creative and strategic processes that have traditionally defined the industry.<h4>FOURTH CIRCUIT UPHOLDS DISMISSAL OF FIREMAN’S SOCIAL MEDIA SUIT</h4>The Fourth Circuit has <a href="https://www.firelawblog.com/wp-content/uploads/sites/19/2025/06/Misjuns-v.-City-of-Lynchburg_-2025-U.S.-App.-LEXIS-13786.pdf" target="_blank">affirmed the dismissal</a> of a lawsuit brought by former Lynchburg, Virginia Fire Captain Martin Misjuns, who alleged that the city violated his constitutional rights by terminating him over controversial social media posts. The case, which raised First and Fourteenth Amendment issues as well as breach of contract and civil rights statutes, centered on whether Lynchburg could be held liable under <a href="https://supreme.justia.com/cases/federal/us/436/658/" target="_blank">Monell v. Department of Social Services</a>. In the 1978 Monell decision, the Supreme Court ruled that local governments can be sued when their official policies or practices violate someone’s constitutional rights, but not simply because one of its employees did something wrong. Prior to Monell, municipalities had blanket immunity from such suits.  In January 2021, Misjuns posted anti-transgender cartoons on his public Facebook page under the hashtag “#BidenErasedWomen.” The posts drew swift backlash from citizens, who questioned whether someone espousing such views should remain in public service. City leadership initiated an investigation, and Misjuns was terminated in October 2021. He pursued internal grievance channels without success and ultimately <a href="https://www.firelawblog.com/2021/04/04/virginia-captain-claims-political-retaliation/" target="_blank">filed suit</a>.The Fourth Circuit found that Misjuns failed to establish Monell liability. The court also dismissed his breach of contract claim, noting that Lynchburg’s employment policies contain clear at-will disclaimers.In a concurring opinion, Judge J. Harvie Wilkinson III acknowledged Misjuns’s right to express his views but emphasized that his speech was “bigoted and divisive,” which eroded public trust in the department and justified disciplinary action. Misjuns may appeal to the U.S. Supreme Court for review, but it seems this fire captain may have been his own career’s arsonist.

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

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: Clickbait, Court Dates, and the Beige Apocalypse

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As the world’s premier blog and go-to source for insightful, pithy commentary on the law and business of social media (EDITOR’S NOTE: this claim has not been verified), the team at Socially Aware feels socially responsible to recap the top ten posts of 2024. We’re doing this in reverse-order “countdown mode” because we like to pretend we’re astronauts.It’s certainly been an interesting year in social media. Clickwrap agreements received a lot of attention from courts, the FTC cracked down on fake reviews, data scrapers spent nearly as much time in court as they did scraping data, age-verification laws for social media became a thing, and Section 230 was stress-tested from all angles. In an age where tech moves approximately one billion times faster than legislation, staying on top of these developments can be daunting, but it’s crucial for serving our clients.Here are the ten most popular Socially Aware posts of the year:10) <a href="/topics/lawrence-w-gallick-on-toth-v-everly-well-inc-" target="_self">Lawrence W. Gallick on Toth v. Everly Well, Inc.</a>In this post from October, Lawrence chatted with Socially Aware about Toth v. Everly Well and how the First Circuit’s ruling in a clickwrap/arbitration case may be at odds with the Fourth Circuit’s ruling in Lovinfosse v. Lowe’s Home Centers, LLP. Lawrence explores the nuances of the ruling and shares some deep insight.9) <a href="/topics/social-links-age-verification-x-appeal-and-the-great-white-north" target="_self">Age Verification, X Appeal, and the Great White North</a>This Social Links post from November covered Texas’s sweeping age verification law, the FTC’s fake reviews rules, a Saudi blogger’s lawsuit against X, Canada ordering TikTok to shutter offices, and ChatGPT’s approach to election integrity. Good times!8) <a href="/topics/california-federal-court-holds-x-s-claims-against-scraper-preempted-by-federal-law" target="_self">California Federal Court Holds X’s Claims Against Scraper Preempted by Federal Law</a>Socially Aware’s in-house gurus Aaron Rubin and Lawrence W. Gallick took an in-depth look at the X Corp. v. Bright Data Ltd. case last June, dissecting the intricacies and ramifications of this ongoing legal battle. Though X’s claims were initially dismissed by the U.S. District Court for the Northern District of California, they lived to fight another day when the court agreed to accept their amended complaint in late November. This one is a great read.7) <a href="/topics/social-links-deepfakes-ai-and-the-continuing-saga-of-reddit" target="_self">Deepfakes, AI, and the Continuing Saga of Reddit</a>In August, we posted this Social Links collection that looked at a couple of AI cases, including the $1 million judgement against Georgia-based VoIP service operator Lingo Telecom for using AI deepfake technology to mimic President Joe Biden’s voice in a series of robocalls. Other topics include Reddit’s post-IPO advertising approach and the copyright battle between major record labels and Cox Communications.6) <a href="/topics/owned-second-circuit-holds-that-traditional-principles-of-property-law-apply-to-social-media-accounts" target="_self">Owned: Second Circuit Holds That Traditional Principles of Property Law Apply to Social Media Accounts</a>Way back in February, Aaron Rubin and Lawrence W. Gallick addressed the always-contentious issue of social media account ownership by looking at JLM Couture, Inc. v. Hayley Paige Gutman. This piece draws some interesting conclusions that have aged well in subsequent months. The very <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.937.0.pdf?ref=404media.co">recent filing</a> by X claiming ownership of Alex Jones’s account in Jones’s bankruptcy proceeding underlines Aaron and Lawrence’s freaky prescience.5) <a href="/topics/supreme-court-clarifies-the-boundaries-of-public-official-liability-on-social-media" target="_self">Supreme Court Clarifies the Boundaries of Public Official Liability on Social Media</a>On March 20, guest authors J. Alexander Lawrence and Justin Kareem Rezkalla contributed a great piece of analysis in the wake of the Lindke v. Freed Supreme Court opinion on when public officials may be held liable for violating the First Amendment for silencing critics on social media. The unanimous(!) opinion recognized that the mere fact that a social media page belongs to a public official is not by itself sufficient to impose liability.4) <a href="/topics/social-links-going-back-to-cali" target="_self">Social Links: Going Back to Cali</a>We named this early October piece “<a href="https://www.youtube.com/watch?v=FdizL4on-Rc" target="_blank">Going Back to Cali</a>” because each snippet of news just happened to be California-centric. Go figure. AI guidelines, social media addiction legislation, deepfake laws, privacy rights . . . it’s all about the Golden State.3) <a href="/topics/central-district-of-california-upholds-grindr-s-immunity-under-section-230-amidst-growing-concerns-over-social-media-safety-for-children" target="_self">Central District of California Upholds Grindr’s Immunity Under Section 230 Amidst Growing Concerns over Social Media Safety for Children</a>In addition to claiming the #3 spot on our countdown, this piece from February wins the “longest title of the year” award! In it, Aaron Rubin and Lindsay Harris dissect the John Doe v. Grindr case and how Section 230 was applied to the popular LGBTQ+ dating app. This example of Socially Aware’s substantive yet readable content is well worth revisiting.2) <a href="/topics/socially-aware-fake-reviews-real-rulings-and-an-epic-fail" target="_self">Social Links: Fake Reviews, Real Rulings, and an Epic Fail</a>We posted this extra-spooky Social Links piece on the eve of Halloween, and it clawed its way to the #2 spot. Fake reviews, medical data tracking, a very dramatic court ruling . . . this one was all treats, no tricks.1) <a href="/topics/an-enforceable-browsewrap-or-not" target="_self">An Enforceable Browsewrap . . . or Not?</a>The #1 most popular Socially Aware post of 2024 was authored by the dynamic duo of Aaron Rubin and Lawrence W. Gallick. The piece looks at Patrick v. Running Warehouse LLC, which addressed whether an arbitration agreement contained in a website’s terms of use was enforceable. Spoiler alert: it was.On behalf of Aaron Rubin, Lawrence W. Gallick, Anthony M. Ramirez, and the entire Socially Aware team, we’d like to wish everyone a happy and healthy holiday season. 2025 will no doubt be an interesting year in the world of social media and IP law—and we’ll be covering all of it, so you don’t have to.

2024 Recap: Ten Lords A-Leaping!

Arbitration

Data Security

Defamation

E-Commerce

Online Reviews

Privacy

Section 230 Safe Harbor

Terms of Use

Sick of the “<a href="https://www.tiktok.com/@joolieannie/video/7399736793119247662" target="_blank">very demure, very mindful</a>” social media trend yet? The U.S. Patent and Trademark Office probably is too. Our national nightmare began on August 5 when TikToker Jools LeBron uploaded a video of herself pontificating about the way she dresses and behaves for a job interview, claiming that she was “very modest” while broadcasting self-absorption to millions of online followers (the very definition of modesty). The trend was picked up by a number of other entities—including the <a href="https://www.instagram.com/p/C-vr65nSM-N/?utm_source=ig_web_button_share_sheet" target="_blank">White House</a> and <a href="https://www.facebook.com/share/p/tjeKx23Zj1B9rjBj/">Dunkin’ Donuts</a>—and now LeBron is attempting to <a href="https://www.axios.com/2024/09/09/trademark-disputes-demure-viral-phrase" target="_blank">trademark the phrase</a>. Unfortunately for her, quick-acting IP vultures beat her to it. At least three other applicants with absolutely no connection to the viral trend had the same idea and <a href="https://tsdr.uspto.gov/#caseNumber=98706752&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank">filed to register a trademark</a> before her. Will Jools LeBron become an enduring symbol of cultural excellence like the <a href="https://youtu.be/C7tydu_erZo?si=m3RxTvVJo0AW4Qm0&t=5" target="_blank">Hawk Tuah girl</a>, or will she become irrelevant like art and literature?Utah’s proposed law regulating the use of social media by minors, which we <a href="https://www.sociallyawareblog.com/topics/social-links-july-2024" target="_blank">reported on in July</a>, has been <a href="https://www.reuters.com/world/us/utah-law-restricting-youth-social-media-use-blocked-by-judge-2024-09-11/#:~:text=Sept%2011%20(Reuters)%20%2D%20A,impose%20restrictions%20on%20minors'%20accounts." target="_blank">temporarily blocked</a> by U.S. District Court Judge Robert J. Shelby. In <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/gkvllnwexvb/09102024utah.pdf" target="_blank">the ruling</a>, Judge Shelby wrote that the law likely constitutes an unconstitutional limitation on protected speech and plaintiff NetChoice is “substantially likely to succeed on its claim the Act violates the First Amendment.” NetChoice has successfully blocked similar legislation in several states and recently prevailed in the Supreme Court in <a href="https://www.theverge.com/2024/7/1/24166388/supreme-court-ruling-moody-paxton-texas-florida-social-media-law" target="_blank">two content moderation cases</a>. Judge Shelby summed up the ruling in no uncertain terms, writing that “The court recognizes the State’s earnest desire to protect young people from the novel challenges associated with social media use, but owing to the First Amendment’s paramount place in our democratic system, even well-intentioned legislation that regulates speech based on content must satisfy a tremendously high level of constitutional scrutiny.”<a href="https://www.msn.com/en-ca/music/news/feds-indict-musician-on-landmark-massive-streaming-fraud-charges/ar-AA1q0wI9" target="_blank">By robots, for robots</a>. That’s the new dystopia we apparently find ourselves in. North Carolina-based musician Michael Smith <a href="https://www.justice.gov/usao-sdny/media/1366241/dl" target="_blank">has been indicted</a> in federal court on three counts of wire fraud, wire fraud conspiracy, and money laundering conspiracy. Smith used AI to create hundreds of thousands of songs which he uploaded to multiple music streaming services. He then created thousands of bot accounts to “listen” to his music nonstop, generating more than $10 million in royalty payments. AI-generated music is uncharted territory for artists, labels, publishers, and IP attorneys, as society wrestles with the incredibly fast-moving technology. A number of major record labels are trying to put the <a href="https://www.billboard.com/pro/major-label-lawsuit-ai-firms-suno-udio-copyright-infringement/?utm_source=twitter&utm_medium=social" target="_blank">genie back in the bottle</a>, but a long road of litigation is a near certainty. Perhaps it will be settled by robot lawyers arguing in front of a robot judge on behalf of the <a href="https://www.youtube.com/watch?v=okhQtoQFG5s" target="_blank">robot artists</a> and robot listeners they represent.After an investigation by the EU, X has <a href="https://www.dataprotection.ie/en/news-media/press-releases/data-protection-commission-welcomes-conclusion-proceedings-relating-xs-ai-tool-grok" target="_blank">agreed to comply</a> with the European Data Protection Commission’s guidelines and to stop using personal data to train its AI chatbot, Grok. X has agreed to delete data collected from May 7 to August 1 and cease collecting user data for developing Grok. Despite X’s compliance, the social media giant <a href="https://techcrunch.com/2024/09/06/elon-musks-x-could-still-face-sanctions-for-training-grok-on-europeans-data/" target="_blank">may still face sanctions</a> over AI models trained on the previously collected data. In the U.S., where laws governing data usage are less stringent, <a href="https://www.msn.com/en-us/money/other/how-to-stop-x-from-using-your-posts-to-train-its-ai/ar-BB1qHPJX?apiversion=v2&noservercache=1&domshim=1&renderwebcomponents=1&wcseo=1&batchservertelemetry=1&noservertelemetry=1" target="_blank">users may now opt out</a> of allowing the platform to access their data for AI training, but the process is not intuitive and users are opted in by default.In a <a href="https://ag.ny.gov/sites/default/files/letters/social-warning-label-letter.pdf" target="_blank">letter to Congress</a>, 42 state attorneys general have encouraged lawmakers to pass legislation requiring cigarette-style warning labels on social media platforms. The action was <a href="https://www.theverge.com/2024/6/17/24180005/surgeon-general-warning-labels-social-media-mental-health" target="_blank">spearheaded last June</a> by U.S. Surgeon General Dr. Vivek Murthy after a 2019 AMA study published in the Journal of American Medicine. The impact of so many attorneys general advocating for legislation remains to be seen, but it could very well move the needle in Congress. As the AGs wrote, “A surgeon general’s warning on social media platforms, though not sufficient to address the full scope of the problem, would be one consequential step toward mitigating the risk of harm to youth.” With so many <a href="https://www.ncsl.org/technology-and-communication/social-media-and-children-2024-legislation" target="_blank">states considering legislation</a> to curtail social media use among children, overarching federal guidelines may be inevitable. The issue appears to be bipartisan and has gained real momentum over the last few months.

Social Links: TikTok Trademarks, Social Signposts, and Robot Rock

European Union

The Federal Trade Commission has finalized a <a href="https://www.ftc.gov/business-guidance/blog/2024/08/well-pay-you-give-our-new-rule-good-review">new rule</a> aimed at curtailing false, misleading, and otherwise fraudulent reviews on online retail sites. Fake reviews are a <a href="https://pushpullagency.com/blog/a-deep-dive-into-amazon-consumer-review-statistics/">significant problem</a> for the big e-commerce platforms, given that a robust customer review system is crucial to modern e-commerce business models. In fact, <a href="https://pushpullagency.com/blog/a-deep-dive-into-amazon-consumer-review-statistics/">studies</a> have shown that a one-star rating increase in a product review can result in as much as a 26% increase in sales. Unsurprisingly, this has caused a proliferation of fake reviews and “<a href="https://www.theguardian.com/money/2023/apr/22/it-can-be-incredibly-profitable-the-secret-world-of-fake-online-reviews">review brokers</a>.” The new FTC rule is pretty comprehensive and worth a <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf">full read</a>.New York trademark attorney Jeremy Green Eche hit the jackpot—and may have run afoul of <a href="http://www.internetlibrary.com/publications/anticybsquattSamson9-05_art.cfm">federal anti-cybersquatting law</a>—when he recently sold the HarrisWalz.com domain for $15,000. Eche <a href="https://www.cbsnews.com/news/harris-walz-domain-name-sold-for-1500/">purchased the domain in 2020</a> for $8.50. Though cybersquatting law is focused predominantly on trademark protection, it includes a provision barring any registration that “consists of the name of another living person” without their consent and “with the specific intent to profit” from its sale. This isn’t the first time Eche got lucky purchasing domains. In 2016, he <a href="https://www.usatoday.com/story/news/politics/onpolitics/2016/10/03/clinton-kaine-trump-website/91462708/">sold ClintonKaine.com to the Trump campaign,</a> also for $15,000. Eche denied being profit-driven, noting the relatively low price he put on both the Harris and Clinton domains. That the “relatively low” price happens to be slightly less than the cost of pursuing a cybersquatting case against him is probably just a coincidence, right?The U.S. Court of Appeals for the Ninth Circuit has ruled that employers may be subject to lawsuits based on their employees’ off-work social media posts. In <a href="https://casetext.com/case/okownowsky-v-garland">Okonowsky v. Garland</a>, the court unanimously ruled that an employee of a federal prison was sexually harassed on Instagram by a coworker in violation of Title VII of the 1964 Civil Rights Act. Following the ruling, plaintiff’s attorney Drew Pletcher said, “It appears to be the first holding in the Ninth Circuit to find that social media posts on an Instagram page could be considered workplace harassment under Title VII.” In the wake of this ruling, companies will need to consider whether their employee social media policies adequately address abusive or harassing behavior both inside and outside the workplace, including on personal social media.Ye, the artist formerly known as Kanye West, <a href="https://usaherald.com/kanye-west-faces-1-5m-copyright-suit-over-unauthorized-photo-use/">has been hit</a> with a $1.5 million copyright infringement lawsuit by celebrity photography sites <a href="https://usa.backgrid.com/">BackGrid USA</a> and <a href="https://uk.backgrid.com/">BackGrid UK</a>. The paparazzi companies allege Ye posted 10 BackGrid-owned photos to his Instagram account without permission or compensation. While it may seem counterintuitive that celebrities cannot post photos of themselves on their own social media, this is actually a fairly common fact pattern, and one that we <a href="https://www.sociallyawareblog.com/topics/by-winning-motion-to-dismiss-supermodel-loses-chance-to-clarify-whether-she-can-lawfully-post-photos-of-herself-to-social-media">have covered previously</a>. For Ye, in any event, this will not be the first time he has <a href="https://edition.cnn.com/2014/03/17/showbiz/kanye-west-plea-deal/">tangled with paparazzi</a>.Embattled Georgia attorney Lin Wood has been <a href="https://lawandcrime.com/high-profile/pro-trump-defamation-attorney-lin-wood-must-pay-former-law-partners-4-5-million-after-defaming-them-as-criminal-extortionists-on-social-media/">ordered to pay</a> his former law partners $4.5 million after an <a href="https://www.documentcloud.org/documents/25049449-lin-wood-defamation-damages">Atlanta jury found him liable</a> for defaming them on social media. The feud began, like so many do, as an argument over money. The federal court’s initial <a href="https://storage.courtlistener.com/recap/gov.uscourts.gand.301086/gov.uscourts.gand.301086.90.0.pdf">ruling</a> contained some not-so-subtle jabs at Wood. Judge Michael L. Brown wrote, “During a five-week period the following year, Defendant repeatedly accused Plaintiffs of criminal extortion in a series of messages he posted on a social media platform called Telegram. Hundreds of thousands of people viewed Defendant’s messages.” Brown continued, adding: “Tellingly, Defendant does not even try to show his accusations were true. Indeed, he admits Plaintiffs did not commit ‘the crime of extortion.’ But he insists his extortion accusations were still non-false because they contained ‘loose, figurative, or hyperbolic language’ that no reasonable person could construe as a genuine accusation of criminal conduct. The Court disagrees.” Lin Wood’s Telegram page can be viewed <a href="https://t.me/s/linwoodspeakstruth?before=50839">here</a>.A paywall for Reddit? CEO Steve Huffman <a href="https://www.pcmag.com/news/reddit-ceo-teases-paywalled-subreddits">hinted</a> at subscription-only features for the wildly popular news aggregation and social forum site during an <a href="https://s203.q4cdn.com/380862485/files/doc_financials/2024/q2/Reddit-Q2-24-Earnings-Call_Transcript.pdf">earnings call</a> with investors. Unsurprisingly, Redditors had a snarky, and often hilarious, meltdown on the site. Despite its popularity, Reddit has struggled to become profitable. It’s a top site for AI web scrapers, which prompted the company to <a href="https://www.pcmag.com/news/microsofts-bing-search-engine-gets-ai-overviews-as-reddit-blocks-it">block Microsoft’s Bing</a> search engine and enter into an <a href="https://www.theverge.com/2024/2/22/24080165/google-reddit-ai-training-data">agreement with Google</a> for site access for AI training. Of the data sharing and web scraping situation, Huffman said, “[Our] preference is to have relationships with everybody, but we need to be very considered of where Reddit data goes and what it’s used for.”

 Social Links: Recent Developments in the Law and Business of Social Media

Social Links: Recent Developments in the Law and Business of Social Media

The Federal Trade Commission has finalized a new rule aimed at curtailing false, misleading, and otherwise fraudulent reviews on online retail sites.

Social Links: Recent Developments in the Law and Business of Social Media

Conversations around AI continue to dominate the headlines in early 2024 and show no signs of abating anytime soon. Here are few of the stories and trends we’ve been tracking at Socially Aware.A deepfake technology scam cost a multinational company’s Hong Kong office upwards of $25M earlier this month. The scam involved an employee who was duped during a video call that involved AI-created likenesses of various company employees, including the CFO, who instructed the employee to transfer funds to five different Hong Kong bank accounts. This event has reinforced persistent concerns in the technology community and beyond about AI’s use and its role in tricking people into believing AI-generated images, likenesses, and audio recreations are real.Media giant Fox is contemplating using its blockchain protocol known as Verify, an open-source protocol that emerged out of Fox’s Blockchain Creative Labs, to help companies “track how their content is being used online,” according to an Axios report. Blockworks added that “Verify uses digital signatures to allow publishers to put media on-chain, making it easier for everyone to trace the original source of the content.” Fox’s hope is that this technology will help consumers and other content producers trace the origins of any piece of content that is included in the protocol.Meanwhile, the U.S. Patent and Trademark Office recently issued new guidelines on AI tools and their potential misuse by practitioners in its administrative tribunals. In a recent memorandum from the PTO, Director Kathi Vidal cited potential issues around AI-generated submissions to the PTO, stating that “[a] submission (including an AI-generated or AI-assisted submission) that misstates facts or law could also be construed as a paper presented for an improper purpose because it could ‘cause unnecessary delay or needless increase in the cost of any proceeding before the Office.’”Finally, the Chief AI Officer, 0r CAIO, is trending as one of the hottest new job titles across industries and sectors, and, particularly, the federal government. With that, there are two schools of thought on where an organization’s AI responsibilities should reside. Some believe it should be concentrated in a singular executive C-suite role, while Axios reports that some organizations are looking to distribute AI strategies across several executives and functional areas rather than concentrate those responsibilities within one department or role. Leading AI expert Ryan Heath believes that “AI strategy should be everyone’s job” within an organization. With the rapidly expanding role that AI continues to play in commerce and society, we will be keeping a close watch on how companies and individuals grapple with this emerging dominant technology.

Social Links: March 2024

Social Links: March 2024

Conversations around AI continue to dominate the headlines in early 2024 and show no signs of abating anytime soon.

Blockchain

Patent

Here at Socially Aware, we <a href="/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_self">have been discussing</a> issues around ownership of social media accounts since the beginning of social media. Just last July, we reported on how a bankruptcy court in Florida forced the founder and former CEO of Bang Energy to delete disparaging comments from his Instagram account and ultimately <a href="https://caselaw.findlaw.com/court/us-ban-crt-s-d-flo-for-lau-div/2289548.html" target="_blank">ruled</a> that the company owned the Instagram, TikTok, and X (formerly Twitter) accounts at issue. Prior to the Bang case, a number of other cases addressed these issues, with varying results, which is unsurprising given the varying facts around creation and use of social media accounts by businesses and business professionals. See some of our other <a href="/topics/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts" target="_self">coverage of social media ownership litigation</a>.Today, we are looking at a recent Second Circuit case, <a href="https://law.justia.com/cases/federal/appellate-courts/ca2/21-2535/21-2535-2024-01-17.html" target="_blank" dir="ltr">JLM Couture, Inc. v. Hayley Paige Gutman</a>, where a fashion designer and her former employer wrestled over ownership of Instagram and Pinterest accounts that the fashion designer created and used for both business and personal brand purposes.BackgroundIn July 2011, JLM Couture, Inc. engaged Hayley Paige Gutman to design a line of bridal wear. The employment contract included several restrictions on Gutman, including that: (a) Gutman would not use her name in commerce once JLM registered it as a trademark; (b) certain broad categories of Gutman’s work would be JLM’s property as works for hire; and (c) she would abide by certain noncompete, nonsolicit, and nondisclosure obligations during the term of the contract and for five years thereafter. JLM and Gutman agreed to extend the contract through August 1, 2022 but, following further negotiations in 2019, failed to agree on any further extensions. Following the breakdown in negotiations, Gutman changed the passwords to her Instagram and Pinterest accounts, refused to give JLM access to the accounts, and notified JLM that she would no longer post JLM-related content to the accounts. JLM then sued Gutman for, among other things, breach of contract, conversion, and trespass to chattels based on Gutman’s taking control of the accounts.Gutman personally created both accounts in 2011 and 2012, using her own name as a handle and with her personal contact information. JLM did not require Gutman to open the accounts, although JLM argued that she had created them within the scope of her employment. The district court agreed that Gutman created the accounts to showcase JLM’s products, which she featured in her earliest posts, interspersed with posts of a more personal nature. Over time, the accounts became more JLM-focused, featuring product pictures and JLM event information. In addition, the accounts’ messaging features were used to respond to sales inquiries. Notably, other JLM employees had access to manage the accounts.Prior to this appeal, the case had already gone through a series of decisions and appeals, resulting in a preliminary injunction that, among other things, gave JLM control of the accounts and enjoined Gutman from competing with JLM until the end of the contract term in 2022. When Gutman posted teasers to the Instagram account about her new bridal brand, the district court held her in contempt, ordered her not to post any “similar content,” and assessed a $5,000/day penalty while she remained out of compliance. In this appeal, the Second Circuit reviewed that contempt order.Second Circuit DecisionGutman argued, and the Second Circuit agreed, that the district court was in error to give JLM control of the accounts. The district court had used a six-factor test to determine the proper owner of a social media account, as follows:<ol><li dir="ltr">whether the account handle reflects the business or entity name;</li><li dir="ltr">how the account describes itself;</li><li dir="ltr">whether the account was promoted on the entity’s 	advertisements or publicity materials;</li><li dir="ltr">whether the account includes links to other internet platforms of the entity;</li><li dir="ltr">for what purpose the account was used, including whether it was tied to promotional or mission-oriented activities of the entity; and</li><li dir="ltr">whether employees or members of the entity had access to the account and participated in its management.</li></ol>Based on this analysis, the district court determined that JLM had a “clear likelihood” of success on demonstrating that it owned the accounts or, even if Gutman had title to the accounts, that JLM had a “vastly superior” right to control the accounts.The Second Circuit concluded that the district court’s use of the six-factor test was an error. Despite social media being a relatively new technology in the eyes of the law, the Second Circuit determined that there was no reason here to deviate from traditional principles of property law. The Second Circuit noted that the district court’s failure to start its analysis by looking at who owned the accounts at their creation was one problematic result of this error. The court went all the way back to a case that most law students read in their first-year property law class, <a href="https://history.nycourts.gov/case/pierson-v-post/" target="_blank" dir="ltr">Pierson v. Post</a> (a case from 1805 deciding the ownership of a fox), among other venerable precedents, to spell out the principle that the proper ownership analysis consists of determining (a) who owned the property originally; and (b) whether those rights were later transferred to someone else.The Second Circuit then went on to hold that Gutman clearly owned the accounts at their creation if she originally created them using her personal information and for her personal use (a factual issue for the district court to decide on remand). If Gutman did own the accounts at their creation, the next question is whether JLM later acquired the accounts by operation of the contract. The Second Circuit makes clear that this question does not turn on whether Gutman assigned specific content to JLM under the contract, or whether others were permitted to assist in managing the accounts. In a rebuke to the district court, the Second Circuit said:Determining ownership by reference to such principles would promote transfer by surprise and complicate contractual arrangements under which an account owner might agree to advertise another’s goods on his or her platform.The contract allocated ownership of the following materials to JLM as works for hire: “designs, drawings, notes, patterns, sketches, prototypes, samples, improvements to existing works, and any other works conceived of or developed by [Gutman] in connection with her employment with [JLM] involving bridal clothing, bridal accessories and related bridal or wedding items.” (Emphasis added.) The district court interpreted the accounts to be “other works” under this language, and therefore held that Gutman had transferred ownership of the accounts to JLM.The Second Circuit rejected the district court’s analysis based on ejusdem generis, a general principle of contract construction that requires that general terms at the end of a list include only objects similar to the specific items in the list. The Second Circuit noted that the listed items were all creative materials that Gutman might produce in her work as a designer, consisting primarily of copyrightable subject matter. A social media account, in contrast, does not share any of those attributes. Therefore, the Second Circuit instructed the district court to reassess the ownership question using the proper ownership test and the foregoing principles, with the strong inference that it might then conclude that Gutman is the legal owner of the accounts.ConclusionIn Gutman, the Second Circuit endorsed a test of social media account ownership that is perhaps not as simple as it seems. In broad terms, the Gutman analysis requires us to look at who owned the account when it was created, and then see if it was later transferred or assigned to someone else. Given the court’s reference to determination of initial ownership by the circumstances of its creation, including whether it was created for personal use, this analysis is inherently fact-driven and will likely not have a clean answer in a world where influencers tend to leverage their personal lives for business gains.Notably, the Second Circuit’s approach implicitly accepts that a social media account is property in the first instance, a proposition that prior courts have not always been sure about, even though they generally accept the principle as a matter of convenience. For example, in <a href="https://caselaw.findlaw.com/court/us-ban-crt-s-d-flo-for-lau-div/2289548.html">In re: Vital Pharmaceutical</a> (the Florida bankruptcy case mentioned above), the bankruptcy court noted:<blockquote dir="ltr">Describing a user’s interest in a social media account is difficult. With respect to some sites, such as TikTok and Twitter, a social media user’s right to use the platform is defined as a “license.” But, in some cases, such as Instagram, that right is not defined at all. For ease of reference, the Court will refer to “ownership of the rights to social media accounts” to encompass whatever rights a user has—whether it be a license or otherwise—to access and use a social media account.</blockquote>Despite these issues, Gutman may enable other courts to streamline their analysis of these issues. While it is not necessarily easy to determine whether an account was owned by an employee or a company at creation, knowing that a court will ultimately rule on ownership of the account according to traditional principles of property law should enable both employees and companies to enter into employment contracts that make ownership of social media accounts more predictable, by, for example, expressly assigning social media accounts used for any company business to the company (note that it would be fairly simple for a company to include language in its employment contract eliminating the ejusdem generis issue described above), implementing strict procedures for creation of such social media accounts, and/or requiring the employee to promise to use company-related social media accounts only in certain ways.

Here at Socially Aware, we have been discussing issues around ownership of social media accounts since the beginning of social media. 

Owned: Second Circuit Holds That Traditional Principles of Property Law Apply to Social Media Accounts

Digital Content

Influencer Marketing

Online Promotions

In <a href="https://law.justia.com/cases/federal/district-courts/california/candce/3:2023cv00686/408431/50/" target="_blank">Jaime Rogozinski v. Reddit Inc</a>, U.S. District Judge Maxine M. Chesney for the Northern District of California dismissed WALLSTREETBETS Reddit community founder Jamie Rogozinski’s claims against Reddit for trademark infringement and dilution as well as various state law claims.Rogozinski established WALLSTREETBETS in 2012 and served as its community moderator. The popular interest-specific subreddit community’s purpose is to inspire average Americans with the notion that they can succeed financially in the stock market.In 2020, Rogozinski filed an application to register the trademark WALLSTREETBETS. He also posted a link in the forum’s sidebar to his book, and later posted a link to a live e-stock trading competition ran by a company he owned. In response, Reddit suspended Rogozinski’s account for seven days and prohibited him from moderating forums on Reddit. Reddit also filed its own application to register the WALLSTREETBETS mark.Rogozinski then sued Reddit for trademark infringement, trademark dilution, violation of his right of publicity, breach of contract, violation of the duty of good faith and fair dealing, and unfair competition.In examining Rogozinski’s trademark claims, the court concluded that Reddit, rather than Rogozinski, was the owner of the WALLSTREETBETS trademark. Rogozinski argued that he had created the name of the forum and that, through his moderation of the forum, members of the public had come to associate him with WALLSTREETBETS. The court held, however, that these facts did not mean that Rogozinski owned the WALLSTREETBETS trademark. Rather, Reddit owned the mark because Reddit was the party that used the mark in commerce in connection with operation of the WALLSTREETBETS. This holding spelled the end of Rogozinski’s trademark claims.The court also held that Section 230 barred Rogozinski’s state law claims. As in many Section 230 cases, the primary issue was whether Rogozinski’s claims sought to hold Reddit liable as a publisher of someone else’s content. The court agreed with Reddit’s argument that content moderation—i.e., making decisions about what content and which users are permitted on the site—does qualify as publisher activity, holding that Rogozinski’s state law claims “seek to hold Reddit liable for publisher conduct, specifically, for either suspending Rogozinski from the r/WallStreetBets subreddit, banning him, and/or allowing the subreddit to continue to operate without him.” Accordingly, the court dismissed most of Rogozinski’s state law claims on Section 230 grounds.The court held that Section 230 did not bar Rogozinski’s one remaining claim for unfair competition under the California Unfair Competition Law, which asserted that Reddit’s practice of claiming trademark rights in the names of subreddits was an unfair trade practice. However, the court dismissed the unfair competition claim for lack of standing.This case is yet another in a recent flurry of cases concerning social media account ownership and control. Recently, we reported on former Bang Energy CEO Jack Owoc’s <a href="https://www.sociallyawareblog.com/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_blank">claims to own Bang’s social media accounts</a>.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

WallStreetBets Founder Loses Trademark Suit Against Reddit

In Jaime Rogozinski v. Reddit Inc, U.S. District Judge Maxine M. Chesney for the Northern District of California dismissed WALLSTREETBETS Reddit community founder Jamie Rogozinski’s claims against Reddit for trademark infringement and dilution as well as various state law claims.

WallStreetBets Founder Loses Trademark Suit Against Reddit

In a purported attempt to safeguard free speech, President Trump has issued an order “Preventing Online Censorship,” that would eliminate the protections afforded by <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener noreferrer">one of our favorite topics</a> here at Socially Aware, <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230</a> of the Communications Decency Act, which generally protects online platforms from liability for content posted by third parties. President Trump issued the order after <a href="https://www.businessinsider.com/trump-online-censorship-executive-order-free-speech-first-amendment-2020-5" target="_blank" rel="noopener noreferrer">Twitter tagged some of his tweets as misleading</a> and linked the tweets to text contradicting their substance. Democratic presidential candidate Joseph Biden is also in favor of abolishing the law, but for very different reasons. <a href="https://www.law.com/njlawjournal/2020/06/14/trumps-social-media-order-puts-a-target-on-communications-decency-act/" target="_blank" rel="noopener noreferrer">Find out what they are</a>.There’s more than one way to strip a law of its teeth. In what Politico describes as “the latest GOP-led plan to target Section 230” of the Communications Decency Act, Senator Josh Hawley is proposing legislation that would make websites eligible for the Section 230 protections only if they stop the sale of ads that target users based on behavioral data.And a Circuit Court in Virginia dismissed a suit that Representative Devin Nunes, a California Republican, brought against Twitter for defamation stemming from two parody accounts—@DevinNunesMom, and <a href="https://twitter.com/devincow">@DevinCow</a>—that posted unflattering things about Rep. Nunes during President Trump’s impeachment hearings last year. The court held that <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230</a> of the Communications Decency Act insulated Twitter from liability.After the first Supreme Court oral argument held over the phone, Justice Ruth Bader Ginsburg wrote in a majority opinion that Booking.com is entitled to a trademark, and that “<a href="https://www.cnn.com/2020/06/30/politics/booking-trademark-supreme-court/index.html" target="_blank" rel="noopener noreferrer">adding ‘.com’ to a generic word can make the entire combination eligible for trademark protection</a>.”Twitter’s new “request verification” option will allow run-of-the-mill users to acquire the blue checkmark next to their names that the platform formerly reserved for public figures. Read about how else <a href="https://techcrunch.com/2020/06/08/twitter-to-launch-a-revamped-verification-system-with-publicly-documented-guidelines/" target="_blank" rel="noopener noreferrer">Twitter plans to improve its verification system</a>.Tik My Day, <a href="https://mumbrella.com.au/tik-tok-marketing-agency-tik-my-day-launches-632334" target="_blank" rel="noopener noreferrer">a marketing agency that Tik Tok launched in Australia</a>, says it can provide all the services necessary for a branded Tik Tok campaign within 24 hours.Users of the dating app OkCupid can now add a <a href="https://theblog.okcupid.com/black-lives-matter-2d40ac10d1c0" target="_blank" rel="noopener noreferrer">#BlackLivesMatter</a> badge to their profiles. The social media firm also donated $1 million in advertising to Black American civil rights organizations, and added several social-justice-related questions to their matching process. How did the app’s users answer? <a href="https://www.forbes.com/sites/johnscottlewinski/2020/06/13/social-media-dating-app-okcupid-launches-blacklivesmatter-badge/#1689f9042e6a" target="_blank" rel="noopener noreferrer">Read the statistics</a>.

Debate over §230 of the CDA rages on; Twitter defeats defamation suit; Booking.com held valid trademark

In a purported attempt to safeguard free speech, President Trump has issued an order “Preventing Online Censorship,” that would eliminate the protections afford

Debate over §230 of the CDA rages on; Twitter defeats defamation suit; Booking.com held valid trademark

Cyberbullying

Marketing

Litigation

Is scraping data from a publicly available website trade secret misappropriation? Based on a new opinion from the Eleventh Circuit, It might be.In <a href="https://law.justia.com/cases/federal/appellate-courts/ca11/18-12004/18-12004-2020-05-20.html" target="_blank" rel="noopener noreferrer">Compulife Software, Inc. v. Newman, Compulife Software</a>, a life insurance quote database service alleged that one of its competitors scraped millions of insurance quotes from its database and then sold the proprietary data themselves. Compulife brought a number of claims against its competitors, including misappropriation of trade secrets under <a href="https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1122&context=umblr#:~:text=Florida's%20version%20of%20the%20Uniform,prevailing%20plaintiff%20in%20some%20cases." target="_blank" rel="noopener noreferrer">Florida’s version of the Uniform Trade Secrets Act (FUTSA)</a> and under the <a href="https://www.americanbar.org/groups/business_law/publications/blt/2016/09/03_cohen/">Federal Defend Trade Secrets Act (DTSA)</a>.Following a bench trial,<a href="http://davidrutstein.com/compulife-lawsuit-decision.pdf"> Magistrate Judge James Hopkins found</a> that, while Compulife’s underlying database merits trade secret protection, the individual quotes generated through public Internet queries to the database do not. So using a bot to take those individual quotes one by one did not constitute a misappropriation of trade secrets. On appeal, however, the <a href="https://law.justia.com/cases/federal/appellate-courts/ca11/18-12004/18-12004-2020-05-20.html" target="_blank" rel="noopener noreferrer">Eleventh Circuit disagreed</a>, vacated, and remanded the case.Facts of the CaseCompulife’s main product is its “Transformative Database,” which contains many different premium-rate tables that it receives from life insurance companies. While these rate tables are available to the public, Compulife often receives these tables before they are released for general use. In addition, Compulife applies a special formula to these rate tables to calculate its personalized life insurance quotes.Compulife sells access to its “Transformative Database” to life insurance agents. The agents can either buy a “PC version” of the database or an “internet-engine version” of the database. In addition, Compulife provides access to the database to consumers for free through its <a href="http://www.terms4sale.com">Term4Sale.com</a> website. When an individual gets a quote from the Term4Sale website, the site automatically refers that individual to an insurance agent who works with Compulife.The defendants operate two competing life insurance quote websites: NAAIP.org and beyondquotes.com. “NAAIP” stands for National Association of Accredited Insurance Professionals. Through NAAIP.org, the defendants offer a “Life Insurance Quoter Engine” that is similar to and partly copied from Compulife’s “Transformative Database.” Life insurance agents can sign up for a free website through NAAIP.org and put NAAIP’s life insurance quoter on their own website. Beyondquotes.com functions just like Compulife’s Term4Sale website. Individuals can use that site to obtain free life insurance quotes and are then referred to a NAAIP affiliated life insurance agent.As part of other efforts to take its proprietary data, Compulife alleged that the defendants retained an Israeli hacker to run automated queries on the Term4Sale website to obtain individual quotes that would be used in the defendants’ competing sites.Trade Secret MisappropriationUnder either the FUTSA or the DTSA, to prove trade secret misappropriation, Compulife had to show that (1) it possessed a trade secret and (2) the trade secret was misappropriated, either by one who knew or had reason to know that the secret was improperly obtained or by one who used improper means to obtain it. Misappropriation can be shown through improper acquisition, disclosure, or use.With respect to the hacker’s queries to its Term4Sale website, Compulife acknowledged that any individual could visit the Term4Sale website to obtain a quote and that there was no restriction on how an individual could use a quote obtained from the Term4Sale website. Similarly, the Term4Sale website engine was also available on Compulife customer websites, and those sites were also freely accessible to the public.Judge Hopkins held that, while the underlying Transformative Database is a trade secret, the individual quotes are not. Thus, Compulife’s FUTSA and DTSA claims alleging misappropriation of these quotes necessarily failed.Judge Hopkins also found that Compulife failed to establish a claim of misappropriation through either use or acquisition.On appeal, the Eleventh Circuit held that Judge Hopkins erred in reasoning that the public availability of quotes on Compulife’s Term4Sale site automatically precluded a finding that scraping those quotes constituted misappropriation.The Eleventh Circuit recognized that the quotes’ public availability is important to the first prong of trade-secret misappropriation—the initial determination whether a protectable secret exists. The Court held that public availability creates a vulnerability, which—if unreasonable—could be inconsistent with the reasonable precautions requisite to trade secret protection.The Court, however, held that, even granting that individual quotes themselves are not entitled to protection as trade secrets, Judge Hopkins failed to consider the possibility that so much of the Transformative Database was taken—in a bit-by-bit fashion—that a protected portion of the trade secret was acquired.The Court found that Judge Hopkins correctly concluded that the scraped quotes were not individually protectable trade secrets because each is readily available to the public but held that does not in and of itself resolve the question whether, in effect, the database as a whole was misappropriated. The Court reasoned that, even if quotes aren’t trade secrets, taking enough of them must amount to misappropriation of the underlying secret at some point.The Court further held that the fact that the defendants took the quotes from a publicly accessible site does not automatically mean that the taking was authorized or otherwise proper. Although Compulife plainly gave the world implicit permission to access as many quotes as is humanly possible, a robot can collect more quotes than any human practicably could. So, while manually accessing quotes from Compulife’s database is unlikely ever to constitute improper means, using a bot to collect an otherwise infeasible amount of data may well be.ConclusionsAs noted in <a href="https://www.sociallyawareblog.com/2019/09/17/ninth-circuits-linkedin-decision-does-not-greenlight-the-unauthorized-web-scraping-of-public-websites/" target="_blank" rel="noopener noreferrer">recent posts</a>, website owners have many tools at their disposal to combat unauthorized webscraping. The Eleventh Circuit reminds website owners that they may have one more arrow in the quiver. If the website owner can establish that the underlying data viewed in the aggregate is entitled to trade secret protection, it would be no defense under the Eleventh Circuit’s reasoning that the data is taken bit-by-bit through public access.

Platform Liability

Commercial Litigation and Intellectual Property

International Arbitration

Bankruptcy Litigation

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J. Alexander Lawrence

Webscraping a Publicly Available Database May Constitute Trade Secret Misappropriation