Juror Facebook Friending During Baltimore Mayor's Trial May Enable Mayor To Receive A New Trial

As a Baltimore native, I keep an active eye on all things Baltimore. I am a fan of the Baltimore Ravens, Baltimore Orioles, Barry Levinson, and John Waters. However, I am very disappointed in Baltimore's recently convicted Mayor Sheila Dixon.

Mayor Dixon was convicted earlier this month of embezzling retail gift cards that were meant for Baltimore's poor. Mayor Dixon's conviction was even discussed on Jay Leno's show. Despite Mayor Dixon's conviction, she has refused to step down and her highly respected legal team is working to overturn her conviction.

According to the Baltimore Sun, one of Mayor Dixon's legal arguments to overturn her conviction pertains to Facebook friending. It appears that several of the jurors friended each other on Facebook during the trial. This is a novel argument and I am not aware of any on point case law regarding this issue. During the past couple of years, there have been several publicized legal matters where the participants have Facebook friended each other. However, this is the first time that a high-profile case has had to deal with whether Facebook friending by jurors during a trial is considered misconduct. If Facebook friending is ruled to be juror misconduct it may be possible for Mayor Dixon's conviction to be overturned.

On September 10, 2009, I blogged about San Francisco Superior Court's court rules that go into effect in the new year regarding social media usuage by jurors. At that time, I stated that these rules should be implemented across the country. This case demonstrates the need for such rules.

A hearing is scheduled for January 6, 2010 regarding potential juror misconduct relating to Mayor Dixon's trial and I am interested in how the court will rule. Facebook friending is just one of the many social media law issues that the courts will need to address in the coming decade.

I wish all of my readers a happy and healthy new year and new decade.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media and the Sean Goldman Kidnapping and Custody Case

Jeff Rossen of NBC News has been providing real time Twitter updates for the Sean Goldman kidnapping and custody case. For those who have not heard about this case I would like to provide a brief synopsis. David Goldman, a New Jersey resident married a Brazilian, Bruna Bianchi in New Jersey in 1999. They had a son, Sean Goldman, born in New Jersey in 2000. On June 16, 2004, Ms. Bianchi and Sean left to visit her family in Brazil on a planned vacation. After arriving in Brazil, Ms. Bianchi called her husband to tell him that their marriage was over, their son Sean would not be returning to the United States, and that her husband must sign over legal custody if he ever wanted to see his son again.

David Goldman refused to relinguish his legal rights and started the legal fight to bring his son home. International law has been clearly on Mr. Goldman's side from the begining. However, Ms. Bianchi remarried a politically connected Brazilian attorney who just happens to specialize in international family law. Ms. Bianchi and her family have used every possible legal maneuver to keep Mr. Goldman from being reunited with his son. During this time, Mr. Goldman has had little contact with his son.

About a year and a half ago, Ms. Bianchi died while giving birth. Despite this tragedy, her family continued the legal fight and refused to return Sean to his father. Due to the power of traditional media, social media, and excellent public relations, the Obama administration along with several U.S. Senators and Congressmen have gotten involved with the case to strongly urge Brazil to follow international law which requires Sean to be returned to his father.

The Chief Justice of Brazil yesterday tweeted his decision to return Sean to his father and according to a report earlier today, Mr. Goldman's late wife's family will not appeal the Chief Justice's decision. Therefore, Mr. Goldman and his son could be reunited later today.

The use of social media is exploding and changing the way our entire society communicates. Even though the U.S. legal system is usually slow to adapt to change it will eventually have to embrace social media.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Supreme Court To Hear Potentially Groundbreaking Social Media Law Case

The U.S. Supreme Court has agreed to hear a Federal appeals court case from California that may lay the groundwork for determining whether an employee has an expectation of privacy when sending a personal text message and other personal communication from a work computer or other work issued property in the Social Media Age. The case, City of Ontario, California, et al., Petitioners v. Jeff Quon, et al. (No. 08-1332) may enable the Supreme Court to determine when and if an employer has the right to monitor any of the following personal accounts accessed at work: a personal email account, a Facebook account, or a Twitter feed.

Police sergeant Jeff Quon sued the City of Ontario, CA for violating his workplace privacy rights. Quon claimed that the City conducted a constitutionally banned unreasonable search by reviewing his text messages, despite those messages being sent from a city owned and paid for pager account. Notwithstanding Quon's claim, the trial court ruled that the City of Ontario had not violated his privacy. Quon successfully appealed to the U.S. Court of Appeals, 9th Circuit which reversed the trial court's decision. The City of Ontario has since appealed to the U.S. Supreme Court claiming that Quon did not have an expectation of privacy in his communications.

Interestingly, Quon signed a form that acknowledged that his personal communications on his work-issued electronic devices would not be private. Despite signing the form, he utilized a work issued pager to send non-work related messages, including messages that some have deemed sexually explicit.

In general, an employer has the right to monitor any electronic communications accessed via employer owned equipment. Internet and Social Media Law is still evolving and the courts have begun to recognize there may be a distinction when an employee accesses personal email and social media accounts utilizing an employer's property.

In my opinion, the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review any electronic communication that is sent via an employer owned account. Email, text messaging, and pagers have been commonly used in the workplace for more than 15 years and employees know or should know that they have no expectation of privacy when sending messages through an employer owned account. An employee should only have an expectation of privacy when communicating on his or her own personal computer, personal cell phone, or personal smartphone.

The case is scheduled to be argued in Spring 2010 with a Summer 2010 decision likely.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media, Poor Choices, and Bad Advice Is Destroying Tiger's Ability to Recover From TigerSexgate

What is Tiger's legal, social media, and public relations team doing to stop the bleeding? So far, Team Tiger's strategy has been to duck and cover, and hope for the cavalry to arrive sooner rather than later. As General Custer found out, the cavalry doesn't always come in time to save you. The entire media and social media world, including the New York Post, US Magazine, and The Today Show, are circling and Tiger's response has been to go into seclusion and avoid everyone and everything in the hopes that TigerSexgate will somehow go away.

As I stated in a previous post, Tiger must be proactive during this time of crisis. Unfortunately, Team Tiger is in paralysis and unable to create an effective crisis response. On the home page of http://www.tigerwoods.com/ it should state in big bold letters "I am Sorry" and Tiger should personally state in a video posted on his website that he is sorry for the all of the pain he has caused his wife and family, he is sorry to his fans, the public, and to his sponsors and that he will work to regain their trust. The video should be released to every social media website to get his message across. As of this writing, Tiger and his website are trying to ignore TigerSexgate and this strategy is failing.

Is Team Tiger taking direction from Tiger, his personal attorney(s), his agent(s), or his publicist(s)? Whomever is the general in this fiasco must be replaced immediately. If Tiger is making the decision to stay out of the spotlight he needs to summon the courage to face the public and come clean. Leaders and role models address criticism head on and personally take full responsibility for their actions. So far, Tiger has failed to live up to the image that Team Tiger has created. This situation reminds me of the scene in The Wizard of Oz when the curtain on the Wizard is pulled back and there is nothing there but a man, not a "Wizard."

It has been approximately two weeks, and I am very surprised that his sponsors that include: Accenture, Electronic Arts, General Motors, Gillette, Pepsi, Proctor and Gamble, and Tag Heuer have been generally quiet since the story broke. If I was the legal counsel for any of Tiger's sponsors I would be reviewing the endorsement contract that my company has with Tiger and analyzing the "morals clause" that I assume was inserted in each contract. A contract morals clause provides a company the ability to terminate the services of an endorser if the endorser engages in activity that is inconsistent with a company's public image.

If the morals clause is properly drafted, I would advise my client to drastically redraft the endorsement contract or sever all ties with Tiger since my client is paying for an image that no longer exists. Companies want to be associated with people who are at the top of their profession, have the right personal image, and who know how to react when either their professional or personal image is under attack since an attack on the endorser is also an attack on the company's brand. Tiger no longer has the image companies desire and his ostrich like "head in the sand" reaction to this crisis demonstrates he is out of touch with the customers whom he is paid to attract.

When dealing with high profile clients, an attorney should ask his client(s) about any "possible future challenges" that may be on the client's radar. Sometimes the client will not be forthcoming, other times the client may provide this information. Due to the nature of the attorney-client relationship an attorney should make the client feel comfortable enough to provide this type of information so an attorney may be proactive in preventing a public relations nightmare that may have corporate and legal consequences.

Immediately after reports of Tiger's multiple infidelities become public, Tiger's legal team should have sprung into action. Tiger's legal team should have had the contact information for each woman with whom he had an inappropriate relationship with so they could negotiate a settlement to keep the relationship a private matter. In particular, Tiger should have worked with his legal team to list in order the women who have the most "evidence" of a relationship to the least amount of evidence. The women with whom he "sexted" with, left voice mails with, emailed with, or left any other possible evidence (Think Monica Lewinsky's Blue Dress), should have been targeted first. These women should have been offered appropriate settlements with iron clad confidentiality agreements.

Tiger should have followed Michael Jackson's lead and spent the money necessary to keep his image intact. Michael Jackson's image took a hit but he was never convicted of child molestation. Michael Jackson's settlement with his accuser(s) allowed him to keep his freedom and to go back to making music. Unfortunately, he tragically passed away earlier this past year before he was able to make another comeback.

Tiger's "transgressions" will not put him jail. However, it may forever change his relationship with his wife and family, eliminate hundreds of millions of dollars in marketing opportunities, destroy his public persona forever, and may affect his ability to focus on playing golf. I thought Tiger was a lock to easily surpass Jack Nicklaus on the all-time major wins list. After watching his response to TigerSexgate, I believe that Tiger will be lucky to win one more major. I hope he proves me wrong, but at this point in time I doubt it.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media Has Forever Tarnished Tiger Woods' Image

Tiger Woods is the most popular and recognizable professional athlete on the planet and the highest paid athlete and pitchman. However, his purported "transgressions" during the past several years that have recently come to light and his response or initial lack thereof to the rumors concerning his extracurricular activities may have permanently tarnished his marketability.

Tiger's image has been very tightly controlled for many years and he has allowed his great skills on the golf greens to do most of his talking. Tiger's car accident over the Thanksgiving holiday weekend combined with published reports that he has been unfaithful to his wife have forever changed his image. From a legal perspective, Tiger's refusal to speak with police or provide a statement regarding the accident was his best move. However, from a public relations perspective Tiger's initial silence concerning the car accident and his alleged "transgressions" have created a feeding frenzy throughout the social media world.

Everybody makes mistakes. Our country is very forgiving and in the past when our heroes have fallen down and they have worked to repair the damage, the public has accepted them with open arms. A prime example of this is how former President Bill Clinton has bounced back since the Monica Lewinsky scandal. Even though President Clinton had to deal with the 24 hour news cycle, cable news, and the Internet (albeit a much less robust one than we have today), he did not have to deal with the power of social media.

Social media has changed the game. Due to a multitude of news websites, blogs, podcasts, etc... there is no escaping a story. Unfortunately, Tiger's handlers still do not understand the power of social media and how to respond to legal issues that they encounter in the Social Media Age. This is evidenced by Tiger's 11/29/2009 statement concerning his car accident and his 12/02/2009 comments regarding his personal indiscretions. Neither statement provides a clear explanation of what has truly happened, which the public and many of Tiger's fans and supporters want.

From a legal perspective, the less said about a legal matter the better. However, from a public relations standpoint, it is usually advisable to defuse a story by getting out in front of it by either acknowledging it or providing evidence to debunk it. An excellent example of successful public relations is how Meredith Baxter, aka Elyse Keaton of Family Ties fame handled the story concerning her sexuality. Ms. Baxter had been seen on a lesbian cruise and immediate questions concerning her sexuality were raised. Ms. Baxter got wind that a tabloid was going to "out" her so she went on The Today Show to out herself and take control of her story. Ms. Baxter's proactiveness destroyed the sensationalism of the story.

A second example of how to successfully handle a sex scandal is the way late night talk show host David Letterman reacted during his recent sex scandal. Mr. Letterman admitted the sexual affairs on his show. In general, Mr. Letterman has so far come out relatively unscathed. The only criticism of the manner in which this scandal has been handled is that CBS has refused to post Mr. Letterman's admission on CBS.com and it has used its legal muscle to force Youtube.com to remove it on the basis of copyright infringement. Despite these actions, unauthorized copies of Mr. Letterman's public apology are easy to find on the Internet.

In contrast, Tiger has tried to ignore his current situation and it appeared that he hoped it would all blow over. There is a good possibility that it will no longer be in the news cycle in a couple of weeks. However, social media will keep it alive on the Internet. If Tiger would have come clean a few days ago and went on camera and stated something along the lines that he was upset when he left his house and this caused his car accident and that he has been unfaithful to his wife and he is sorry for the pain he caused the story would be over. However, refusing to come clean early in the news cycle of the story has only fueled the fire and allowed for tabloid fodder. The longer Tiger waits to come clean, the more he tarnishes his well-crafted image.

Therefore, due to the power of social media it is important to hire a legal and public relations team that understands the legal, business, and public relations consequences of each possible course of action. In my opinion, Tiger needs to reevaluate his legal and public relations strategy to incorporate the new reality of the Social Media Age.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Tweeting May Land You In Prison

The World War II adage, "Loose Lips Sink Ships" applies to Social Media in the 21st century. It appears that Roger Avary, Co-Screenwriter of Pulp Fiction, either never heard of this slogan or never thought his tweets would lead to his incarceration.

Mr. Avary pleaded guilty earlier this year to vehicular manslaughter while intoxicated. Mr. Avary was purportedly driving more than 100 mph when he crashed his car last year. A passenger in his car was killed and his wife was injured in the crash. Even though he was sentenced to prison for his actions, it appears he was instead assigned to a work furlough program. L.A. Times Technology blogger, Mark Milian discovered Mr. Avary's Twitter account and his tweets so he investigated why Mr. Avary was able to tweet when he was scheduled to be in prison without cell phone access. It turned out that Mr. Avary was assigned to a work furlough program instead of prison. Mr. Milian blogged about Mr. Avary's tweets and within several days it appears that Mr. Avary was reassigned to jail.

The old adage "silence is golden" still applies in the age of social media. It appears that Mr. Avary would have been better off if he had kept his mistaken gift of freedom to himself.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The EEOC May Punish Employers Or Insurers Who Review Applicants or Employees' Social Media Posts For Insurance or Personnel Decisions

The Genetic Information Nondiscrimination Act ("GINA") that went into effect on November 21, 2009, prohibits employers from utilizing genetic tests or considering an applicant or employee's genetic background in hiring, firing, or promotions. The main change from the law is that in general, it will prohibit health insurers and employers from asking employees to provide their family medical histories. GINA applies to companies who have more than 15 employees.

The U.S. Equal Employment Opportunity Commission is trying to determine how social media will fit into the law. GINA does not punish employers for obtaining information on workers from traditional or electronic media. However, with the explosion in the use of social media, the EEOC is worried that health insurers and employers will data mine an applicant or employee's social media accounts and utilize the information obtained to discriminate against them.

The easiest way for an applicant or employee to avoid any possible discrimination based upon their genetic background is to avoid discussing their personal or family medical issues on social media. I believe there are some things that better suited for a personal conversation or an email than a social media post. I would like to borrow from the the old Latin derived saying "Let the Buyer Beware" and coin the phrase "Let the Social Media Poster Beware."

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Medical Insurance Policy Holder Claims Benefits Terminated After Facebook Posting

Social Media has become a double edged sword for the 21st century. Facebook, Twitter, Myspace, LinkedIn, etc... has made it so much easier for old friends to reconnect and professionals to network. However, let me emphasize again, beware of what you post on these websites, it might come back to haunt you. Take for example, the latest from our Northern American neighbor.

In Canada, a Manulife Insurance policy holder claims that her sick-leave benefits were terminated after several photos of herself appeared on Facebook. The policy holder was out on sick-leave due to depression and the photos that were posted on Facebook appear to show the policy holder having a good time at a Chippendales bar show. Whether or not that was a reason, or the only reason that Manulife terminated the policy holder's sick leave, the moral of the story is do not make any Social Media posts or link to any posts or photos that can ever be utilized against you.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Tweeters Beware: Google Is Archiving All Tweets

Do you remember the scene from the movie Swingers where Jon Favreau's character Mikey makes multiple phone calls to a Nikki, a woman that he met earlier that night at the Dresden and embarrasses himself so thoroughly that she tells him to never call him again? Whether Mikey was "Drunk Dialing" or not, when the movie was made in 1996 there was not a chance of his actions being disseminated to the entire world.

Fast Forward to 2009. Now imagine if you start "Drunk Tweeting" or "Drunk Facebooking." Instead of only one person knowing about an episode in your life that you may want to forget, all Internet users may now be able to access this information because Google is now archiving all tweets. This may not only lead to future embarrassing situations, it will also drastically increase the cost of E-Discovery. As a take off from a saying that some have attributed to Mark Twain, "It is better to keep your tweets to a minimum and be thought a twit than to tweet all night and remove all doubt."

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Courtney Love Is Being Sued For Her Tweets

Courtney Love is being sued by fashion designed Dawn Simorangkir after Ms.Love allegedly posted false and derogatory statements about Ms. Simorangkir on Twitter. According to CNN, Ms. Love made the alleged libelous statements after she had a disagreement with Ms. Simorangkir regarding the cost of Ms. Simorangkir's services.

The bottom line is that social media users should avoid posting content that may be considered libel. Insurance companies who provide Social Media Insurance or Social Networking Insurance for active Tweeters, Bloggers, and Facebookers would be wise to capitalize on the market's need for this type of insurance sooner rather than later. Social Media Insurance will one day be as common as an insurance rider for personal articles.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook Acts As An Alibi For A Brooklyn, New York Teenager

Social Media is being used everyday by the police and prosecutors as evidence in court. Up until now, Social Media and Social Networking usage has been primarily used as evidence against defendants. However, in what may be the first highly publicized defense usuage, a Brooklyn, New York teenager was able to utilize Facebook as an alibi when he was accused of a crime.

According to the The New York Times, the teenager was incorrectly identified by a victim as a robbery suspect. Fortunately, the teenager was an active Facebook user and was on Facebook at his family's home computer at the same time that the alleged crime occurred. Due to the electronic evidence from the Facebook post, prosecutors dropped the charges and the teenager was freed from Riker's Island, one of the most dangerous prisons in the country.

Some skeptics may point out that someone else may have used the teenager's account to make the post to create an alibi. And others may state that a savvy techie can figure out a way to be in two places at once. That is always the possibility in any case. However, the bottom line is that Social Media is here to stay and police, prosecutors, judges, juries, and defense attorneys need to learn how to incorporate it into the U.S. Justice System.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Did Letterman's Alleged Blackmailer Register The "Screenplay?"

This morning The Today Show aired a piece on the alleged bribery of David Letterman by Robert Halderman. Halderman's attorney Gerald Shargel made an extremely novel and interesting argument. Mr. Shargel stated that Halderman was merely offering Letterman the first opportunity to buy a "screenplay" that included alleged damaging information about Letterman's private life. Halderman purportedly offered to sell Letterman the "screenplay" for $2,000,000.

Mr. Shargel's argument might be a winning one if some of the following questions were first answered: Did Halderman register his "screenplay" with the U.S. Copyright Office? How about the Writer's Guild? What type of social media promotion plan did Halderman have to promote his project if Letterman did not want to buy it? Was Halderman shopping his "screenplay" around to any other potential buyers?

It costs $35 to register a work online with the U.S. Copyright Office and at most $22 to register a work with the Writers Guild of America East. If Halderman registered his "screenplay" with either of these organizations his argument that he was merely offering Letterman a first crack at his work may be successful. However, if the "screenplay" was not registered, I do not believe that the argument his attorney mentioned this morning will be a winning one. If this purported screenplay had widespread commercial value Halderman would have taken the steps necessary to protect his intellectual property.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Sex, Sexting, Lies, Videotape, and Carrie Prejean

Carrie Prejean, the former Miss California who has been ostracized by many in the media since celebrity blogger Perez Hilton "outed" her as a woman whom many would consider does not have liberal opinions, has recently ended her legal fight with the Miss California Pageant. In many articles, it has been reported that Ms. Prejean ended the legal wrangling after the pageant obtained a purported sex tape that included Ms. Prejean.

According to Ms. Prejean's interview on The Today Show, the sex tape that has been in the media the past week is what would now be called a "sexting" tape. In The Today Show interview, Ms. Prejean stated that she was 17 years old when the tape was made, she is the only person in the tape, and she made the tape to send only to her boyfriend. In other words, not nearly as salacious as the press has hyped it to be.

This situation highlights that nobody can hide from their past. In general, I believe that almost everyone deserves a second chance because everyone makes mistakes. Unfortunately, Social Media and the Internet can destroy one's reputation almost instantly. It is important to understand your rights when you are being filmed and photographed, and when you are posting to the Internet. Even if you understand your rights, you must realize that once something is released onto the Internet, even if it is an unauthorized release, it can never be fully retrieved.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook Sued For Allegedly Violating the Video Privacy Protection Act

Social Media website Facebook was recently sued along with Blockbuster for breaking the Video Privacy Protection Act (USC Title 18 Section 2710) because Facebook was making some type of public notation every time a Texas woman was renting a video from Blockbuster. Apparently, Facebook and Blockbuster had or have some type of partnership that involves an information sharing agreement that allowed video rental information to be shared without the Facebook user's authorization or ability to opt out.

Facebook's information sharing problem was partly due to its Beacon Advertising System that is supposedly being discontinued. Beacon was initially designed as an opt out instead of an opt in system. Therefore, Facebook users needed to be extremely vigilant to keep their personal information private.

The proliferation of social media and social networking sites has made it difficult to keep one's personal details private. Unfortunately, unless there is some type of consumer backlash that forces Congress to pass strong legislation that sets an enforcement mechanism that includes stiff penalties, this type of information sharing will dramatically increase in the near future.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Google Book Settlement Angers Chinese Authors

I have written extensively on this blog that the biggest beneficiary of the Google Book Settlement as it is currently configured is Google. Surprise. Surprise. Surprise. Did I just say that or was that my Gomer Pyle impression? Fortunately, the U.S. Deparment of Justice and the U.S. Copyright Office has strenuously objected to the settlement and the parties are back at the negotiating table. According to the New York Times, the current settlement may create some international difficulties for the U.S. because the proposed settlement may affect authors whose rights are protected under various international treaties. I am not surprised that international authors are against the proposed settlement. I am just a bit surprised that it has taken so long for the international community to become mobilized.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Employers Are Using Social Media to Reject Job Applicants

The current economic climate has been extremely brutal across the country. In many industries, a paradigm shift has occurred and thousands of jobs that have been cut will never re-appear when the economy recovers. Those companies that are hiring have a large pool of candidates to choose from. However, having the "pick of the litter" is not good enough for some employers. According to an article on MSNBC.com, some employers are not just reviewing the information that an applicant has provided, but they are also diving deep into the candidate's social media background to find people to contact that may have some "dirt" on a candidate. This is only a breach of protocol from the normal process and not illegal. However, some companies are now requiring as part of the interview process that a candidate sign a waiver not to sue if a former boss or a social media contact disparages a candidate. While the former is just sneaky, the later is downright disgusting and should be against the law.

People who need a job will sign almost anything when they are in a vulnerable position. A waiver may provide immunity to an "off-list" reference to say anything about the candidate whether true or not. When the reference is someone a candidate has chosen there usually is not much to worry about. However, this type of waiver may be forced upon a candidate for every single "friend" or "connection" that a person has in their social media accounts.

I am generally against Congress interfering with our daily lives. However, this is the type of situation if allowed to become a generally accepted business practice could undermine people's ability to obtain a job or even keep a job. Therefore, before this type of practice becomes widespread, Congress needs to step in to stop it dead in its tracks.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

NFL Fights Over Access To College Game Day Content

The NFL is currently in a standoff with the company that video records college football games for eight conferences and then delivers it digitally to the NFL. The content is primarily utilized by the NFL's College Advisory Committee to form an official opinion on college juniors who are thinking about entering the NFL draft before their college eligibility is exhausted. The College Advisory Committee acts as another source for potential early entrants to the NFL draft because without this committee prospects would only be able to obtain information about their possible draft prospects from sports agents and their college football coaches.

The company that creates the content and then delivers it to the NFL, XOS Technologies, has reportedly made a mulit-million dollar rights fee request on behalf of the college football conferences it works with to the NFL for content that was previously delivered free. The College Advisory Committee is made up of participants from each NFL team and it provides a draft opinion of college underclassmen. This arrangement has provided college juniors an opinion that is not biased by the opposing interests that sports agents and college coaches inherently possess. The analysis that the College Advisory Committee provides is mutually beneficially to both the NFL and to underclassmen. Potential draft prospects are able to obtain a professional opinion about their readiness for the NFL while the NFL has been able to scout potential draft picks with free access to game day tapes.

From a legal and business perspective, there are several issues that need to be determined. What is the monetary value of the game tapes to the NFL? Who owns the rights to these game day tapes? Does the conference own the game day content or do the two schools who play the game own the rights? If the content is used for purposes other than talent evaluation, such as for entertainment or analysis on the NFL Network, what is the value of this use? If a college underclassman would like to obtain the game day tapes and post clips on a social media website to promote himself can the player also obtain the rights for this use? How much is the College Advisory Committee's talent evaluation services worth to college football programs and their players?

These questions need to be answered sooner rather than later because there is a high probability that a larger number of juniors than usual will declare themselves available for the upcoming NFL draft due to the possibility that a new NFL Collective Bargaining Agreement that is in the initial stages of negotiation may put some type of cap on rookie salaries.

In my opinion, the NFL should pay some type of fee for the game day tapes depending on the type of rights that are granted. Since NFL teams pay tens of millions of dollars to top draft picks, game day tapes are very valuable in the evaluation process. I do not believe it would be practical to charge potential draftees for an independent evaluation because most likely they could not afford the cost of the review. However, I think some type of deal should be worked out that would allow a player to obtain game day content that would allow them to directly promote themselves on social media websites.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

FTC May Back Down On Some Of The Proposed Social Media Rules

According to the Wall Street Journal, the FTC may back down from its initial indication that it would bring enforcement actions against bloggers and individuals who comment about products or services without full disclosure. The FTC has indicated that they plan to focus on advertisers and companies instead.

This turnaround demonstrates the power of social media and the "modern day petition." In a previous post, I mentioned that I was not pleased with all of the proposed changes. I admit that the rules needed to be updated since the last update was in 1980. However, some of the proposed rules are still too broad and ambiguous, and should be changed. I am hoping that people continue to let the FTC know how they feel about this issue before it becomes effective because an ambiguous new rule is worse than an old outdated rule that is generally easy to understand and implement.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Sex Crimes, Stickam.com, and Social Media

Stickam.com is a live video web site that according to the New York Times is owned by a Japanese based pornographer. According to Stickam.com's Frequently Aasked Question Page, it is a free live video service and social network that allows a user to stream live video over the Internet. However, Stickam.com is also being used to showcase the work of alleged rapists and other criminals.

This past year, there have been several arrests of the website's users based upon video that was uploaded onto the site. Each arrested user is accused of uploading video of a sexual crime that the user participated in. Unfortunately, a website such as Stickam.com is just one avenue that sexual predators utilize. As anyone who has watched NBC's Chris Hanson's "To Catch a Predator" specials or Law and Order: SVU knows, this type of behavior occurs more than most people realize. Law enforcement is so overwhelmed and most websites are understaffed and focused on generating revenue and not policing their web site. Therefore, this type of behavior can fall through the cracks unless concerned website users notify the website and the proper authorities. Since 9/11/2001, the the New York City subway's safety slogan has been, "[i]f you see something say something" and I believe this slogan should be extended to the Internet.

In Stickam.com's defense, the website self reported some of these alleged criminal acts to the police, disabled the alleged rapists accounts, and removed the content that allegedly shows a crime being committed. I am not trying to defend Stickam.com's website, but these types of websites are common on the Internet and generally it is up to the users of social media to police the content available and notify the proper authorities when it is alleged that a crime has been committed by a fellow user.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

NBA Star Wins Internet Domain Fight

The Toronto Raptors' forward Chris Bosh sued a cybersquatter for the rights to www.chrisbosh.com and 800 other athlete and celebrity domain names. Mr. Bosh won his fight against Hoopology.com (I refuse to provide a link for this site because I do not like cybersquatters) for his domain name and 800 others. Cybersquatters usually buy a domain name in the hopes of either selling it to its rightful owner or to profit off the likeness of the rightful owner.

It appears that this is the first time that a court has awarded third-party domain names to a plaintiff. Mr. Bosh has stated that he intends to return the domain names to their rightful owners without compensation. Great news. Despite what some people think, this proves that not all NBA players are selfish "show me the money" people.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media Fraud

One of the biggest problems that social media companies have encountered with the rise of the popularity of social media is the rise of social media fraud. According to the Wall Street Journal, one of the biggest problems that companies are encountering occurs when criminals create fake urls that are made to look like legitimate websites. This occurs when a criminal creates a url that has a name that impersonates a real entity. However, when the url is clicked, the user is directed to another website that is created to obtain the user name, password and other identifying information of the user.

There is no way to stop this behavior. If a hacker has the right tools and the determination, he will be successful in breaking into your computer, website, or blog. The only way to avoid becoming a victim is to be careful about the websites you visit and ensuring that you have current security software installed on your computer or network. Even with these precautions you can still become a victim of this type of fraud.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Flight Attendant Utilizes Facebook To Harrass 15 Year Old Female Passenger

We have only seen the tip of the iceberg regarding social media harrassment or misuse. Australian Airline Jetstar has a male flight attendant who thought that it was socially acceptable to try to "friend" on Facebook a 15 year old female passenger. It appears that the airline employee obtained the female's name from her boarding pass.

This story reminds me of the old Seinfeld episode where Jerry gets the phone number of a woman he wants (and whom appears interested in him) to date off of an AIDS Walk list. At the time of the episode's original broadcast, this type of "ingenuity" was not socially acceptable and Jerry could not stop thinking about what would happen if the woman found out how he acquired her phone number. However, Jerry did not use private information that only an employee of a company could utilize to try to obtain a phone number.

Even though this occurred in Australia, and there has not been any litigation yet, I believe that this type of behavior has occurred in the United and will occur again here. I predict that there is going to be a tremendous amount of litigation in the future regarding social media misuse.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Details In The New FTC Endorsements and Testimonial Rules May Curb False Product Testimonial Claims But It Will Create Confusion

The Federal Trade Commission just released its final guidelines governing the use of edorsements and testimonials in advertising. Implementing updated rules for the first time since 1980 is a great idea. A lot has changed since the Carter administration. In particular, the Internet has supplanted television, radio, and printed newspapers as the most important media communication tool. However, upon closer review of the new rules, it appears that some of the rules are beneficial, while others are ill conceived, difficult to enforce, and create more problems than then solve.

I recently reviewed the text of Federal Register Notice 73 FR 72374 that was published last year. This notice discussed proposed changes to the regulations governing endorsements and advertisements. The new guidelines published in 16 CFR Part 255 are subject to go into effect on December 1, 2009. Under the new rules, bloggers will now have to disclose if they are receiving monetary incentives or payment in kind to write about a product or service. Additionally, celebrities will now be required to disclose if they have any economic ties to a product or service if they promote a product it on a talk show or via social media. I am in favor of the spirit of these rules because it will inform consumers about any possible conflicts of interest by those who are giving testimonials. Unfortunately, the rules appear to be intentionally broad and ambiguous and therefore they may cause more problems than they solve.

In addition, as part of the overhaul, there is a less publicized rule regarding celebrity endorsements that I like to call the Entertainment Lawyer Employment Act. Under this new rule, if a celebrity stars in an advertisement and reads a script that misleads the public about a product or a service, the celebrity may be personally liable along with the company who hired the celebrity. This new rule will force entertainment lawyers to include language in endorsement deals that requires advertisers to cover any attorney fees an endorser may incur related to the endorsement.

16 CFR Part 255 states, "[t]he addition of new Section 255.1 (d) and the new examples featuring celebrities, does not create new liability for celebrities, but serves merely to let them (and their advisors) know about the potential liability associated with their endorsement activities." I have to disagree with this assertion because it opens the door for celebrities to be held personally responsible for the information in their paid endorsements.

If you read example 4 on 73 FR 72391, you will understand the ridiculousness of the above statement about the rule. The rule places an unfair burden on celebrities and actors to ensure that the content of an advertisement is not misleading. This burden should only be with the company that is making the claim and not an actor. In the example that the FTC provides, a celebrity endorser is pitching a chicken roasting system. During the commercial's taping, the celebrity watches the roasting system cook 5 chickens incorrectly. However, the script calls for the celebrity to state, "if you want the perfect chicken every time, in just 30 minutes, this is the product you need." The celebrity follows the script as required by his or her contract and under the new rules the celebrity is subject to liability along with the advertiser for misrepresentation. The rationale given is that, "a significant percentage of consumers are likely to believe the celebrity's statements represent his own views even though he is reading from a script."

I have no problem with the advertiser being liable for intentional misrepresentations, but holding an actor, celebrity, professional athlete, or paid endorser liable also over reaches. This new rule may force paid endorsers to read scientific journals or memorize the Encyclopedia Britannica to ensure that their statements about products they endorse are true. Additionally, it may require specialized insurance to cover any claims that may arise from a celebrity endorsement. If a significant percentage of consumers in our country believe everything that comes out of a celebrity's mouth we have a bigger problem on our hands that no guidelines will be able to resolve.

If John Madden states, "EA Sports Madden NFL Football is the Perfect Football Video Game," he may be liable under the FTC's new rules for misrepresentation. Every Baltimore NFL fan knows this is a false statement because the perfect NFL football video game would have an All-Time Baltimore NFL team that includes both Johnny Unitas and Ray Lewis playing on the same Baltimore NFL team. Until Madden's NFL football game corrects this problem, Mr. Madden and EA Sports cannot claim that Madden NFL Football is the perfect product without incurring liability under the new rule.

Do you now see the ridiculousness of this part of the new guidelines?

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The UK's High Court Permits Injunction To Be Served Via Twitter

The United Kingdom's High Court has permitted an injunction to be served via Twitter. Under UK law, there is no requirement that an injunction be served in person. In the UK, injunctions may be served via fax and e-mail, and now via social media.

It is possible that one day service by social media will be allowed in the U.S. However, the authentication issues involved must be properly addressed.  One reason for requiring personal service in the U.S. is to ensure that the person being sued is made aware of the litigation.  In my opinion, it may take years, but once all of the authentication issues are addressed it would not surprise me if service of process by social media is eventually allowed in the U.S.  

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Catch-22: Scrib.com Copyright Dispute Has the Potential to Create New Law

A unique copyright lawsuit has recently been filed in the U.S. District Court of the Southern District of Texas, Houston Division. The lawsuit was filed by Elaine Scott, an author of children's books against Scribd.com, an internet based social publishing company. Ms. Scott claims that Scribd.com is violating copyright law because it is using unauthorized "digital fingerprints" of her book "Stocks and Bonds, Profits and Losses: A Quick Look at Financial Markets" ("Stocks and Bonds") in a filtering system to ensure that her book does not appear again on its website.

In July 2009, Ms. Scott visited Scribd.com and found that her book "Stocks and Bonds" was illegally uploaded to the site. Subsequently, a letter was sent to Scribd.com notifying the company about the copyright violation. Scribd.com removed the copyrighted work and left "digital fingerprints" of the work in its filtering system to ensure that the the copyrighted work did not appear again on its website. However, before including the "digital fingerprints" of the copyrighted work in its filtering system, it appears that Scribd.com did not obtain a license from Ms. Scott permitting it to utilize her work in this manner.

Generally, before a copyrighted work can be utilized a license from the copyright holder must be obtained. For example, when The Sopranos ended a couple years ago, the show's creator had to obtain permission from the band Journey so the song "Don't Stop Believin" could be played in the background of the last scene of the series finale. Sometimes, copyrighted material may be used without obtaining permission due to the Fair Use Doctrine. In determining whether a utilization falls under the Fair Use Doctrine there are 4 factors that the courts consider.

This lawsuit brings up a very interesting Catch-22 for companies trying to abide by copyright law after they are notified of a copyright violation. If a company does not take protective measures to ensure that it is following copyright law, the company may be held liable for copyright infringement. However, Scribd.com's solution to avoid violating copyright law appears to include a filtering system that may violate copyright law by utilizing part of the author's work without permission. The courts will have to decide if utilizing part ("digital fingerprints") of a copyrighted work without an author's permission in a filtering system to stop others from committing copyright infringement falls under the Fair Use Doctrine.

In my opinion, Scribd.com and others in Scribd.com's space should be denied the ability to claim Fair Use because Scribd.com is in the commercial business of publishing content and its proprietary filtering system may be licensed out to other companies confronting the same dilemma as Scribd.com. Therefore, Scribd.com should be forced to obtain a license from Ms. Scott. However, since Scribd.com appears to be trying to protect Ms. Scott's published work, Ms. Scott should not be allowed to obtain an unreasonable license fee. If Scribd.com would have approached Ms. Scott about obtaining a license before including her work without her permission in its filtering system, I believe Ms. Scott would have granted the required license at a reasonable rate. I learned a long time ago that being polite and making a fair offer resolves most legal matters.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

U.S. Secret Service Requests That Facebook Remove a Poll Asking Whether President Obama Should Be Assassinated

The U.S. Secret Service is investigating a poll on social media website Facebook that asked whether President Obama should be assassinated. Facebook complied with the Secret Service's request to take down the poll and now the Secret Service is investigating the creator of the poll to determine the intent behind its creation.

I understand the Secret Service's concerns regarding keeping the President and his family safe. In 1995, while attending The George Washington University, I woke up one day and the Secret Service without any announcement decided to permanently close down Pennsylvania Avenue in front of the White House due to security concerns. This occurred two years after the first attack on the World Trade Center and soon after the Oklahoma City bombing. These tragedies along with several other incidents made the Secret Service reassess the security measures in place to protect the President and the First Family.

I have mixed feelings about the Secret Service getting involved in this matter. I think the Secret Service should do all it can to protect the President and his family. However, my question is where do we draw the line in determining what is acceptable free speech under the 1st Amendment? There are many opinions
that I find distasteful and moronic; in particular, some opinions from members of my own extended family. Even though I may not agree with an opinion, I agree that everyone has a right to his or her own opinion and ideas.

Most interactive web sites have a Terms of Service/Terms of Usage section that discusses how the site can be utilized by its users. If a user is violating a web site's policies, the user can be barred from the website and the user's posts can be removed. However, I am not in favor of the executive branch of the government determining what is acceptable speech. In general, the legislative branch of our government creates the laws, the executive branch enforces the laws, and the judicial branch determines if a law is constitutional and how it may apply. These checks and balances have generally worked for more than 200 years.

This type of censorship by the Secret Service or other law enforcement agencies will increase with the rise in popularity of social media. I predict that one day that the U.S. Supreme Court will hear a case involving censorship of a social media website by the government.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media Law Issues Will Grow Proportionately With Social Media Use

According to the media tracking company, Nielson, Social Media usuage drastically increased this past August compared to a year earlier. This past August, 17 percent of all time spent on the internet was spent doing Social Media related activities compared to only 6 percent the prior August. I predict that as the use of social media grows so will the legal issues that confront its users and society. As with any new technology, it takes some time for the law to evolve and for legal standards to be developed.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Federal Trade Commission is Planning Privacy Discussions in December

Due to the increasing popularity of social media web sites and the numerous legal issues involved, the Federal Trade Commission is planning to hold a series of discussions regarding privacy issues and social media.

I believe this type of government involvement is long overdue. I am generally against government intervention in the private sector. However, due to the underlying concern for identity theft that is intertwined into this discussion, I believe the FTC's involvement is long overdue.

For those who are interested in submitting written comments or original research regarding this topic you should click on the link to do so. The deadline is November 6th.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Google Book Lawsuit Not Ending Any Time Soon

Earlier today, Judge Denny Chin of the United States District Court for the Southern District of New York granted a motion to delay an Oct. 7th hearing on the Google Book Lawsuit Settlement because it appears that Google and its allies are now willing to modify some of the proposed settlement terms to allay the fears of copyright holders and Google's competitors. I believe this is a good sign because this signals that Google may be more flexible in their position. Lets hope this is the case for all stakeholders since the proposed settlement has the ability to fundamentally change copyright law throughout the world.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook Increasing Users' Privacy

Great news on the Facebook Privacy Front. Facebook has agreed to dismantle its Beacon Advertising System and to create an independent foundation that will focus on online privacy. This agreement will settle a class action suit that was brought against Facebook because its Beacon Program was collecting a large amount of data about the Internet activities of Facebook users and then broadcasting this information.

To Facebook users this program was like a "Peeping Tom" that would also inform others about your activities. The system was extremely difficult to opt out of it entirely and this problem rightfully frustrated many users.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Even Saying Good Things About Others Online Can Come Back to Haunt You

Due to our litigious society, anything you say, whether it is good or bad has the ability to come back to haunt you. Before Social Media websites become vogue, most people would obtain a written recommendation from a boss and/or ask a colleague or friend to act as a reference. To ensure that a potential hire was being honest about their background, a recruiter or potential employer might contact your former supervisor for verification of your employment.

On LinkedIn, Facebook, and other social media websites, a boss and/or colleague can easily recommend you or become a fan of yours and provide a recommendation for all users to view. In theory this sounds great because it has the potential to cut down on the costs of employment verification and due diligence. However, a problem may arise when an employee is terminated and the official reason provided is poor performance while the boss recently sang the employee's praises on a social media website. This type of conflicting information raises a red flag for labor lawyers.

Therefore, the best policy is to be reserved in your social media communications with your employees, supervisors, and/or colleagues. If an employee requests a recommendation an employer should feel free to act as personal reference since the employer has the ability to change their mind about the employee/former employee down the road. However, when acting as an online reference, the employer may not have full control over the reference after it has been posted and this lack of control has the potential to cause future potential problems.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

U.S. DOJ is Against the Google Book Settlement

Not surprisingly, the U.S. Justice Department came out against the proposed Google Book settlement. DOJ advised the U.S. District Court for the Southern District of New York that it should not accept the class action settlement in The Authors Guild Inc. et al. v. Google Inc. DOJ encouraged the parties involved to continue discussions to craft a resolution that all parties affected would be willing to accept. I hope that that the U.S. Copyright Office's official position along with the U.S. Department of Justice's official position will encourage Google to make a good faith effort to resolve the outstanding issues in a manner that does not shortchange copyright holders and does not create a monopolistic system that harms consumers.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Lawyers Must Be Mindful of Their Social Media Usage

There is an excellent New York Times article by the paper's National Legal Correspondent, John Schwartz, that discusses some examples where lawyers have been sanctioned for their Facebook posts, blogs, and tweets. Lawyers who utilize social media must realize that the Code of Professional Responsibility that every member of the Bar must follow in their every day interactions with prospective clients, clients, opposing counsel, judges, etc...is also in effect in cyberspace. Even though the First Amendment protects most speech, a person still can't falsely yell fire in a public area. Attorneys as officers of the court have additional responsibilities. The bottom line is that every lawyer should thoroughly read their prospective posts, blogs, or tweets before they are published in cyberspace. Before I publish a post, I ask myself:

1) Will my post add value to an area of discussion?
2) Does my post violate the Code of Professional Responsibility?

If my post can add value to a discussion and does not violate the Code of Professional Responsibility I publish my post. If my thoughts do not add value to an area of discussion or if I think they may violate the Code of Professional Responsibility I do not make the post. In general, I try to avoid personal attacks on others. I try to live by, blog by, tweet by, and post by this adage that my late Grandfather instilled upon me: "Better to keep your mouth closed and be thought a fool than to open it and remove all doubt."

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

U.S. Register of Copyrights Attacks Google Book Settlement

The U.S. Register of Copyrights, Marybeth Peters agrees with most of my previously stated positions on the proposed Google Book Settlement. In particular, Ms. Peters stated in her testimony to Congress on September 10, 2009, "[i]n the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress...We are greatly concerned by the parties' end run around legislative process and prerogatives, an we submit that this Committee should be equally concerned. To read Ms. Peters entire statement click on the link above.

According the New York Times, [h]er ("Ms. Peters") opinion is important because it could be reflected in a brief expected from the Justice Department this month. The government has until September 18, 2009 to make a filing in the case so stay tuned.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Proposed San Francisco Superior Court Social Media Policy May Be A Model For the U.S. Court System

San Francisco Superior Court has proposed a new rule scheduled to go into effect on January 1, 2010, that notifies prospective jurors on the cover sheet of the juror questionnaire that blogging, tweeting, or utilizing the Internet to obtain or share information about their case is prohibited. According to Ann Donlan, the Communications Director for San Francisco Superior Court, "the judges currently admonish jurors from the bench about discussing the case. This [rule] is not to prohibit the use of technology by jurors. This is a rule to (1) provide consistent instructions for jurors in those cases in which a questionnaire is being used and (2) to remind jurors, in writing, of the admonishment not to discuss the case with anyone."

In my opinion, this is a very practical and long overdue rule that I believe should be implemented in some form throughout the entire U.S. court system. The last time I was called for jury duty I noticed that several prospective jurors were utilizing their blackberries and there is no way to know if they were just reading their email or tweeting about their jury duty service.

I would like to thank Ms. Donlan for sending me a copy of the proposed draft rules and providing some insight about them.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Google Book Search Copyright Class Action Settlement

I have talked at length in previous posts about the proposed Google Book Search Copyright Class Action Settlement. In my opinion, the settlement is a raw deal for copyright holders and consumers due to many issues that I have discussed in some of my older posts. One of the most important sections of the settlement is the cash payment section that discusses how copyright holders are compensated for their work. Many rights holders will not be pleased with the details.

If you made a claim by the filing deadline and receive documentation from the lawsuit claims administrator you should read the documents thoroughly. If you disagree with your claim determination you may want to consider sending a rejection of the claim determination certified return receipt. If the company contacts you and states that there is nothing more they can do and asks you to send a letter or email stating that you now agree with their claim determination you may want to consider contacting an attorney to assist you with the claims process.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Tweeting Can Be Hazardous to Your Game

Twitter is currently in the fad stage of American Society. It is trying to move into the mainstream to become as ubiquitous as email but only time will tell if this will happen. I have a Twitter account but I do not use it often because I do not think people want to know what I am doing all the time. I doubt my followers would be interested in knowing what type of diaper my son had this morning and whether I changed it.

As an attorney, most of the things that people would be interested in hearing me tweet about are priviledged attorney-client communications. Therefore, I rarely tweet since some of the things I could possibly say may provide a clue as to whom I am representing, the type of matter I am working on, or a possible strategy that I may be thinking about employing on a client matter.

The U.S. Open has joined the NFL and some Fortune 500 Companies in instituting a social media policy. The NFL announced yesterday that its players will be allowed to utilize social media during the season. However, NFL players, coaches, and football operations personnel will not be authorized to use social media 90 minutes before a game or during a game. The last time I checked the NFL's Collective Bargaining Agreement I didn't see anything directly relating to social media so until this issue is collectively bargained I think this policy strikes a good balance between employee and employer rights.

However, the United States Tennis Association's (USTA) Twitter policy appears ambiguous and difficult to enforce. The USTA's policy appears to try to control the actions of not just its members but also its member's "entourages." As anyone who has watched the funny HBO series Entourage, controlling a member of your entourage is not always as easy as you may believe. Therefore, the USTA's social media may sound like a great idea but for all practical purposes it is almost impossible to hold a player responsible for the tweets of another.

In order for both the NFL and USTA's social media policies to be successful they need to be:

1) Collectively bargained or negotiated between the parties so a mutually acceptable policy is crafted.

2) Clear and unambiguous so all parties know what is expected.

3) Enforced in a consistent manner so all parties know the consequences for non-compliance.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook Improves Privacy Controls for Users

According to a Facebook press release, Facebook has agreed to increase its privacy control options in response to a request from the Office of the Privacy Commissioner of Canada. Any features that provide its users more control over the use and dissemination of their information is a great news for Facebook users.

Facebook users should limit the amount and type of personal information they provide in their Facebook profiles. Providing too much personal information on social media websites can be very dangerous. Does anybody rememberf the Sandra Bullock movie the The Net? Even though this movie portrays an extreme example of identity theft right before Internet usage became mainstream it is still demonstrates what a determined identity thief can do with the right knowledge and tools. No password or security feature is safe from a determined identity theif and I am sure that identity thieves target Facebook and other social media web sites all the time.

I am dissapointed that it took a Canadian government commission to "encourage" Facebook to act. As I have posted earlier, Facebook is sitting on what the "Mad Men" of Madison Avenue would call the "El Dorado" of marketing research. Facebook has freely obtained millions of bits of personal information that could be utilized by companies to reach a specific target audience. As my British friends would say, "brilliant."

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media Users Better Pay Their Taxes

Great article in today's Wall Street Journal discussing how some states have turned to Facebook, Myspace, and other social media sites to track down tax delinquents. According to the article, some states have ethical boundaries regarding how they are able to utilize social media and the Internet. For example, in Nebraska, officials are allowed to search social media web sites and Google to track down people who owe back taxes but officials are not allowed to "friend" a target utilizing false information.

As social media increases in popularity, I predict there will be numerous court cases on how government officials can utilize social media in their criminal and civil investigations. I also predict that the government will prevail in most of these cases unless the government's actions are egregious.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The Google Book Lawsuit: Continued

A new group called the Open Book Alliance has just created a web site that states the case that the Agreement between Google,the Authors Guild, and the Association of American publishers should be scuttled. Members of the Open Book Alliance include: Amazon, Microsoft, Yahoo, the American Society of Journalists and Authors, the Council of Literary Magazines and Presses, the Internet Archive, the New York Library Association, Small Press Distribution, and the Special Libraries Association.

As I stated in an earlier post, I am against the agreement in its present form because it appears to grant Google an unfair monopoly, it short changes some copyright holders, and it may enable Google to track the published works that a user views. While I applaud Google for taking the lead on this initiative, Google should not be handed a monopoly just because it started the project.

The bottom line is that the parties who favor the Agreement will reap financial benefits from it while the parties who are against the Agreement may be financially harmed or may not benefit from the Agreement. History has demonstrated that monopolies stifle innovation and hurt consumers. For example, when Network Solutions controlled all domain registration the cost to register a domain name was exorbitant . However, after other companies were allowed to become domain name registrars the cost to register a domain name drastically dropped and more people were able to participate in e-commerce.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

"Skanks in NYC" Blogger Planning to Sue Google For Following Judge's Order to Out Her

According to a CNN article, the "Skanks in NYC" Blogger who lost her lawsuit to keep her anonymity is planning on suing Google, the host of her blog, for not doing more to protect her privacy.

Some background for those who have not followed this story. An anonymous blogger made derogatory and possibly defamatory remarks against a model, Liskula Cohen. Ms. Cohen sued to compel the blogger's web hosting company, Google to release the personal information of the anonymous blogger. Ms. Cohen won her lawsuit and as ordered, Google provided the blogger's email address to Ms. Cohen. Ms. Cohen utilizing her gumshoe skills figured out the identify of the anonymous blogger. The media also found out the identity of the anonymous blogger.

Ms. Cohen received several days of positive press and during her media performances she was viewed not as a vindictive and helpless victim but as a person who is willing to forgive and forget and move on.

The anonymous blogger was vilified in the media and wants to blame Google for her self inflicted problems. As I said several days ago, if the anonymous blogger wanted to stay anonymous she should have covered her tracks better. Filing a frivolous lawsuit against Google only continues to demonstrate the blogger's vindicative nature and that she is looking for someone else to blame for her own actions. It is time for the anonymous blogger, Rosemary Port to cut her losses because the longer this story stays viral the more damage it does to her reputation.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Getting Fired For Blogging

The Wall Street Journal and CNN once again have reported on the legal ramifications of blogging and tweeting about your job. In particular, the CNN article discusses what is becoming an almost every day occurrence in the American workplace: an anonymous blogger is terminated after being outed or after he or she reveals his or her true identity under their own free will and accord.

In general, most employment situations in the United States are employment-at-will. This means that an employer or employee can terminate the employment relationship for any reason. Over the years, three main exceptions to this rule have been recognized:

1) A Public Policy Exception
2) An Implied Contract Exception
3) A Covenant Of Good Faith and Fair Dealing Exception

Some states recognize all three while other states may only recognize 1 or 2 of these exceptions. Every organization should have a social media policy. In the 1980's, creating a sexual harassment policy was all the rage. In the 1990's, creating an Internet usage policy became necessary. Now, all organizations that have employees should have a written social media policy. These policies should strike a fair balance between employee and employer rights. Unfortunately, until these types of policies become the norm and not the exception in the American workplace more employees will be terminated for their blogs, posts, and tweets.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

"Skanks in NYC" Blogger's Days of Anonymity Are Over

The "Skanks in NYC" blogger who recently lost a lawsuit to keep her identity private has now been outed. According to a NY Post article and the accompanying photo and video, the former anonymous blogger did not appear pleased that her identity has been revealed.

Some of my readers may question why I am even reading the NY Post. I have to admit that as a former New Yorker, one of my guilty pleasures was reading the NY Post instead of my Wall Street Journal while commuting to work. Old habits die hard so every now and then I still check out the NY Post online.

I mentioned in a previous post that this case or another similar one may go all the way to the Supreme Court. It appears my prediction may come to fruition. The article states that the former anonymous blogger "plans to pursue all her legal options against Google and could take the case all the way to the Supreme Court."

I can't see what kind of case the blogger would have against Google. Google complied with a valid court order to release the email address associated with the "Skanks in NYC" blog. If the "Skanks in NYC" blogger truly wanted to keep her identity secret she would have at least:

1) Signed up for her blog using an email address that she only accessed from public terminals
2) Never sent any emails from the email address associated with the blog, and
3) Only accessed her blog from public terminals

From listening to the Good Morning America segment about the case, it appears that the blogger at least broke rule number 2 and utilized the email address associated with the blog for other activities. There could be a legal argument that the blogger did not do enough to hide her identity. Therefore, regardless of the other legal issues involved it may be argued that the blogger was looking to be outed by her own actions or lack thereof.

In my opinion, I believe that most jurisdictions will pursue the line of thought that the court in this case did and it will order Internet Service Providers and Social Media Websites to turn over relevant information about those who are alleged to have defamed others. Internet anonymity is becoming more difficult these days and those who do not take the proper precautions are at risk for having their identities unmasked.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The Google Book Lawsuit: Next Round

According to the New York Times and the Wall Street Journal, Yahoo, Microsoft, and Amazon are planning to join with several non-profit groups in their opposition to the agreement that Google has forged with the Authors Guild and the Association of American Publishers that would have settled the 2005 lawsuit regarding Google's plan to digitize millions of published works.

I think Google's plan to digitize millions of published works is brilliant (as the British would say). When operational, the project will allow any Internet user to access millions of previously hard to view published works. However, we all must remember that Google did not envision this project as a philanthropic venture. The project was meticulously planned and implemented as another revenue stream. I am glad that some of the other E-Commerce heavyweights are finally realizing that their participation in this discussion is vital to ensuring that Google does not obtain a monopoly as the gatekeeper to the published works they scan. Democracy and capitalism work best when there is healthy discussion and lots of competition.

Social Media Executor Will Become Standard In Estate Planning

Naming a Social Media Executor is an estate planning tool that will become standard practice in the future. A Durable Power Of Attorney generally handles ones financial matters when there is an incapacity or death. An Advance Health Directive and a Living Will focus on health care related decisions. Prolific authors may name a Literary Executor whose role is to protect a writer's literary legacy.

However, a Social Media Executor is a position that is slowly becoming another accepted estate planning tool. Some social media websites have posted policies on how to deal with a deceased member. Most social media websites and email providers will not provide user names and passwords to a deceased users' heirs without a court order. Therefore, it is important to create a Social Media Executor and provide the person with all of your user names and accounts.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is Flickr Hiding Behind Copyright Infringment To Censor Free Speech?

Social Media has the ability to spread ideas like wildfire. However, if you don't own the platform from which you want to espouse your views your speech may be stifled. A perfect example of this occurred when Firas Alkhateeb, a college student from Chicago created a photo that some call art, others call politically charged, and some have called racist.

According to the L.A. Times, Mr. Alkhateeb utilized Adobe Photoshop and modified a photo of President Obama to make the President look like Heath Ledger's Joker character from the most recent Batman movie. In January of this year, Mr. Alkhateeb uploaded his creation to Flickr. Several months later somebody downloaded the photo and put the word "Socialism" on the photo and started plastering posters of the modified photo throughout Los Angeles.

Whether or not you agree with the message that it conveys, it appears that the photo modification is protected under the famous 1841 Folsom v. Marsh case that established the analysis later codified in the United States Copyright Act of 1976 Title 17, U.S.C. Section 107: Limitations on exclusive rights: Fair use.

From a legal point of view, there is a valid argument that the photo represents protected political commentary. Under our First Amendment, no matter how reprehensible a person's words or ideas may be that person has a right to them and a right to publish them. As Social Networking use increases, these types of incidents will increase ten fold. Therefore, this type of censorship that Flickr is engaging in may be just the tip of the iceberg.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook Sued For Being Facebook

Facebook is being sued for what appears to be engaging in evolving as a social networking site. On its face, the lawsuit appears without merit because it does not allege anything new against Facebook. One of the lawsuit's allegations is that Facebook, "seeks to open and/or disseminate private information to third parties for commercial purposes and economic benefit."

Despite what many of its users think, Facebook is not in business to provide free social interactions for the benefit of its users. Facebook is in business to make money by providing a uniqe platform that enables its users to enjoy their online social interactions and activities. If and when Facebook is able to fully monetize all of this freely obtained information it will be the marketing industry's "El Dorado."

Users join Facebook to interact with their friends and potential friends and to share their thoughts and ideas with others. I am a Facebook user. However, I limit the amount of personal information that I post because I know that as soon as I post something I have no ability to fully control it. In contrast, some of my Facebook Friends post a tremendous amount of information that is not fit for professional consumption. For example, a cousin of mine who is a recent college graduate and a Facebook Friend has allowed some of her college Facebook usuage to follow her into the professional world. I have had to warn her not to disparage in any manner her current employer or position in her posts. I just hope that none of her posts boomerang and harm her in the future. As with any new technology, once the Genie has left the bottle you can't put it back in.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The Google Book Lawsuit

The New York Times has an interesting article about some of the objections to the proposed deal to settle the Google Book Lawsuit. For those not familiar with this lawsuit here is a condensed description of events: Google is in the process of scanning millions of books into digital format from several famous libraries. In return, Google wants to profit from their scanning work along with the authors and publishers of the scanned books.

I have no problem with Google wanting to profit from their work since new ideas are what drives capitalism. However, some of the legal issues that need to be addressed include:

1) Fair Compensation: Is the monetary settlement fair to the rights holders of the published works? For example, is it fair for the settlement to set non-negotiable royalty terms for works that are out-of-print but still in copyright?

2) Privacy concerns: How will Google track users and will Google then profit from selling ads directed to those users. Will the published works rights holders be able to share in the profits from any ad revenue that Google generates from these ads?

3) Monopoly concerns: Will other companies be able to join Google in profiting from this venture? Remember the old AT&T? After AT&T was broken up, we started to have more telephone choices. Some of the Baby Bells have since merged and now there are some rumblings about possible monopolistic activities but in general we have more innovation with healthy competition than we did before the break up.

I am not in favor of any agreement that sets non-negotiable royalty terms for any published work because each work should stand on its own and be given the opportunity for the marketplace to determine its worth. I also have grave concerns about Goggle's "big brother" capabilities and the possibility of a monopoly. The final agreement needs to address these issues and until it does it should not be implemented.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Hollywood Is Trying To Figure Out How To Embrace Social Networking

Great article today in the Baltimore Sun today about how Hollywood is trying to figure out how Social Networking websites effect movie openings. Twitter and other Social Networking websites are great for getting the word out and should be incorporated into every marketing campaign for any business. As demonstrated in the past year in elections throughout the world, social networking when used deftly can be a very powerful tool.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Bloggers' Days Of Anonymity May Be Ending

Yesterday, a Manhattan, NY Judge ruled that Google must identify the anonymous blogger who created and/or posted to a blog titled "Skanks in NYC." The blogger wrote derogatory and possibly libelous posts about Liskula Cohen, an international fashion model. Once Ms. Cohen learns the identity of the blogger she will then be able to file a defamation suit.

Abcnews.com has a good article and an interview with Ms. Cohen. This ruling may signal the beginning of the end of total anonymity in internet posting. I predict that these types of lawsuits will only increase in frequency and jurisdictions throughout the country may differ in their application of the law. Due to the First Amendment issues involved one of these cases may eventually find its way to the U.S. Supreme Court.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.