Enjoy the Holiday Season and Happy New Year!

Wishing everyone a happy and healthy holiday season along with a happy new year! May the new year bring good health, happiness, and success!

To learn more about the social media legal issues that your entity may confront in the new year you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Professional Athletes Must Be Careful When Using Social Media

During the past two years, professional athletes have started to embrace social media. For example, active NFL players such Chad Ochocinco and Reggie Bush have more than a million Twitter followers. These two NFL players have successfully combined their on the field play with their off the field personalities to become popular on social media.

Social media offers professional athletes new and exciting ways to engage and interact with their fans. Unfortunately, social media usage by professional athletes may also cause some unforeseen problems. During this time, some NFL players have been fined for violating the NFL's social media policy because they tweeted during a game. Other players have made inappropriate comments on Twitter. For example, former Kansas City Chief Larry Johnson lost more than $300,000 in game day compensation for his Tweets that slurred homosexuals. Johnson's Tweets so enraged Chiefs fans that an online petition garnered more than 32,000 fan signatures to keep Johnson from returning to the team. In addition to lost game day compensation, Johnson may have lost possible lucrative post-career marketing opportunities in Kansas City.

Social media usage by professional athletes may also have serious legal consequences. For example, on December 22, 2010 it was reported by the Baltimore Sun that Ravens rookie Sergio Kindle expressed uncertainty about his NFL career on Twitter after he met with his doctors. Kindle has been on the reserve/non-football injury list since fracturing his skull before training camp opened earlier this year. Discussing one's medical condition is not something that should occur via social media. Less than a week after Kindle's Twitter medical update he was charged with a DUI. In addition, Kindle through an interview allegedly admitted to drinking and driving. It appears that Kindle has deleted his Twitter account within the past 48 hours of this writing.

Kindle's social media usage along with his poor judgment may end up not only harming his NFL career, it may also cause him legal trouble. A prosecutor may utilize Kindle's Tweets and his alleged interview admission regarding the DUI against him in court. Even if Kindle's attorney is able to have Kindle's blood alcohol score and/or other evidence excluded from the case, a prosecutor may still be able to utilize Kindle's Tweets before and after the alleged DUI and his alleged admissions to a reporter regarding the incident.

As more and more people utilize social media, these type of issues will drastically increase. Therefore, it is imperative to think twice before making a social media post because you never know how it may be used against you at a later date.

To learn how to protect your social media profile you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

New York Jets' Rex Ryan Needs to Take His Feet Out of His Mouth and Address Foot-Fetish Gate

The New York Jets' Rex Ryan needs to take his feet out of his mouth. Usually, when you hear the saying that someone has their foot in their mouth it means that they are saying things that are not very intelligent. However, in this instance, Ryan has figuratively put both of his feet in his mouth to intentionally avoid addressing what will become known as Foot-Fetish Gate.

According to Deadspin.com, a woman who looks very similar to Ryan's wife Michelle has been posting videos onto YouTube about feet fetishes. In addition, if you listen to one of the videos posted the voice sounds similar to Ryan's. The YouTube account ("ihavepretty feet") that originally contained these videos was so popular that YouTube allegedly terminated the account for terms of service violations.

Foot-Fetish Gate was on the Cover of today's New York Daily News. According to NJ.com, when Ryan was asked about the videos in a press conference today he stated, "This is a personal matter and I'm not going to discuss it. This is a personal matter, I hope you can respect the fact I don't want to discuss it."

Ryan should have followed the way Dave Letterman handled his social media situation when Letterman was blackmailed about his personal conduct last year. On December 2, 2009, I blogged about how well Letterman handled his social media crisis and stated that Tiger Woods should follow David Letterman's social media crisis playbook. David Letterman came out publicly very quickly on his show and admitted what had happened. Letterman's honest response made the story die very early in the news cycle with no apparent professional consequences.

In contrast, Tiger Woods for months refused to address his personal problems that became public soon after Thanksgiving 2009. Woods' handling of his social media crisis has derailed his career, cost him millions in sponsorship dollars and destroyed his marriage. The final chapter on Brett Favre's sexting scandal has not been written yet so it is too early to properly review his social media crisis response.

From the facts I have seen so far, it does not appear that Rex Ryan or his wife have engaged in any activity that could cause him legal problems. Therefore, I would advise Rex Ryan to come clean and make this a non-story quickly. Ryan may want to take a page from Hugh Grant's personal incident from 15 years ago when Grant was caught with a hooker. Grant did the talk show circuit and made light of the matter. Grant's career did not suffer because he apologized and acted sincere and audiences have embraced him ever since. If you win football games people generally don't care what you do in your spare time. Even then, the U.S. is a very forgiving country. For example, Michael Vick has resurrected his career due to his recent on the field play and his positive contributions to his surrounding community.

Since Ryan and his wife may only be guilty of poor decision making he should do a 180 as soon as possible and give a press conference that honestly addresses Foot-Fetish Gate before this weekend's NFL games begin. Nobody cares what Ryan and his wife do in their spare time as long as the Jets win. However, if the Jets lose this Sunday and don't make or go far in the playoffs Ryan and/or his wife's off the field activities may be further questioned. Personally, I can't wait to see and hear what the Chicago Bear fans will say to Ryan at this weekend's game. Are you ready for some football?

To learn how to properly handle a social media crisis you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

UK approves Tweeting in the Court Room During Assange Bail Hearing

You have to give credit to Julian Assange where credit is due. His name and his organization WikiLeaks strikes fear in every government and large corporation throughout the world. He has the ability to destroy international relationships and expose secrets with a simple keystroke. Due to Assange's creation, no "For Your Eyes Only" document is safe from "inquiring minds."

So far, Wikileaks' infamous document releases have been a big disappointment to me. Reading how U.S. diplomats view leaders from around the world is boring. I want WikiLeaks to release its documents on Bigfoot, the incident at Roswell, New Mexico in 1947, and its information on the Warren Commission. I want to know if Lee Harvey Oswald was the only person involved with President Kennedy's assassination.

Despite WikiLeaks major shortcomings, we can thank Assange's actions and current celebrity for a UK court's acceptance of the usage of Twitter during a court room proceeding. Howard Riddle, the Chief Magistrate presiding over Assange's bail hearing was asked and provided permission to a reporter that he could send Tweets if it is done quietly and does not disturb the court. Therefore, it appears that mircoblogging during a trial by reporters may be acceptable in the UK.

As of this writing, the US does not have a uniform rule on microblogging by reporters during trial. In a recent high profile trial in Chesire, Conn a defendant is using as part of his basis for appeal that Tweeting during trial created a "circus atmosphere." So far this argument has fallen on deaf ears. However, until there is uniformity throughout the US this argument may succeed in some jurisdictions.

In my opinion, up until this point in time,WikiLeaks' major contribution is that it has assisted a UK court in deciding that Tweeting during a judicial proceeding is acceptable. Only after WikiLeaks uploads the documents that answer all of my questions regarding Area 51, the Roswell Incident, and the Bigfoot can I truly say that it has topped its biggest accomplishment to date which is having a UK jurist determine that Tweeting during a court proceeding is acceptable.

To learn more about how your legal rights may be affected by social media usage you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

How To Choose A Social Media Lawyer

Choosing a social media lawyer is difficult because there are so few bona fida social media attorneys around. You should choose a social media lawyer in the same manner that you choose a lawyer for any other matter: via due diligence. Social Media Law is like entertainment law and sports law in that there are several different areas of the law that a practitioner should understand.

Some of the areas of the law that a social media lawyer should be knowledgeable about include: Internet law, intellectual property, employment law, business law, media law, and privacy law. A social media lawyer should also know how social media may be used in other legal specialties and the business of social media. In addition, a social media lawyer must understand social media technology and how social media is utilized. A social media lawyer must not just talk the talk, he must walk the walk.

I have noticed some lawyers falsely advertising they have social media experience and some who have even fraudulently created social media credentials. Due diligence via a Google search, a review of an attorney's social media usage, and personal recommendations should enable a client to determine a lawyer's true social media knowledge. Having a blog, a Twitter account, or a Facebook or Myspace page for your practice does not mean you are a social media lawyer. It just means that you spend your spare time creating content that you want the entire world to see.

To learn more about my social media credentials I welcome you to do a Google search and review my lawyer profile. If you are in need of social media lawyer you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Copyright Office Has Extended Comment Dates For Sound Recordings Fixed Before 2/15/72

The Copyright Office has extended the comment and reply period for its Notice of Inquiry requesting public input for sound recordings fixed before February 15, 1972. Initial comments due in the Office of the General Counsel of the Copyright Office by January 31, 2011. Reply comments due by March 2, 2011. The Copyright Office prefers that comments be submitted electronically via www.copyright.gov. For more information check out the Federal Register notice regarding this update.

A change in the law will have significant consequences for social media usage of the content that falls under this category.

To learn how to protect and monetize your intellectual property you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Does Google agree with my 1 day DMCA safe harbor definition of expeditiously?

According to the Associated Press, Google has stated that it will respond to complaints about pirated material within 24 hours after receiving notification. This announcement also states that Google will better police the sites that utilize its ad network to try to limit copyright violations. This long overdue announcement is great news for content creators.

On June 30, 2010, I stated that even though Viacom lost the initial round of the Viacom v. YouTube case, the case may be a win for copyright holders in the long run. I made my prediction because if YouTube was able to remove more than 100,000 infringing copyrighted clips within 1 business day of being notified more than three years ago, there is no reason why commercial entities shouldn't be held to this standard today.

Google's new 24 hour policy is welcome news because content creators have lost billions of dollars to intentional copyright infringement over the past ten years. Google also needs to enact this policy for trademark infringement. I am waiting for Facebook, MySpace, Twitter, etc... to agree to the same policy for not just copyright infringement but also for trademark infringement. Only after these companies actively enforce a 24 hour turnaround for intellectual property infringement may they claim they are actively protecting content creators.

I challenge Facebook, MySpace, Twitter, and every other social media company to follow Google's lead in protecting intellectual property.

To learn how to protect and monetize your intellectual property you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Did a Social Media "October Surprise" Derail the U.S. 2022 World Cup Bid?

There will be a tremendous amount of soul searching in the coming weeks from the U.S. soccer community regarding its failed 2022 World Cup bid. U.S. bid chairman Sunil Gulati did everything legally possible to bring the World Cup competition back to the United States. Gulati traveled all over the world and enlisted President Clinton and Oscar winner Morgan Freeman for the final presentation. Unfortunately, that was not enough. Qatar was awarded the 2022 World Cup.

After FIFA announced who would host the 2022 World Cup Gulati stated, "Can I sit here today and say these are the seven things that we would do different? No..I think we did everything we could." President Obama weighed in and stated it was the "wrong decision." As a U.S. soccer fan, I am disappointed about the outcome. However, I am not surprised.

According to ESPN, the U.S. bid "far exceeded its rivals in the areas of ticketing, media rights, licensing, hospitality and sponsorship." Having the best bid or pitch does not guarantee success. Even though there have been accusations that graft may have occurred during the bid process, the bottom line is that the U.S. will not be hosting the 2022 World Cup.

In my opinion, the latest WikiLeaks document release may have swayed the voters. In other words, Social Media may have been the cause of the U.S. not being the host of the 2022 World Cup. Some of my colleagues may think I am off my rocker and that I sound like a modern day Fox Mulder right out of the X-Files. However, during the past several days the WikiLeaks U.S. cable document release has dominated international news. This story has been on the cover of every major news publication all over the world. You had to be living in a cave without a modern day electronic device not to hear about it.

WikiLeaks is a website that relies on user generated content. According to its website it is, "a non-profit media organization dedicated to bringing important news and information to the public." On November 28, 2010, WikiLeaks made available on its website more than 250,000 secret U.S. diplomatic cables. The fact that WikiLeaks was able to obtain these secret cables in the first place demonstrates that the U.S. has a serious problem with data security that I am hoping will be resolved in the near future. However, the content inside some of the cables provides the impression that some of the U.S. State Department employees are using diplomatic cover to spy. This allegation along with many other embarrassing revelations such as how U.S. diplomats view some world leaders was not helpful to the U.S. World Cup bid.

If I was a World Cup voter from another country I may have been angry at the U.S. and may have have taken my anger out against it by voting for Qatar. I may have asked myself, "if the World Cup is held in the U.S. will my fellow countrymen and diplomats have to worry about being spied on during the competition?

It appears that WikiLeaks has been in possession of these documents for some time. Therefore, why were these documents released just a few days before the World Cup vote? Was this release an "October Surprise" that was done with the precision akin to a smart bomb? Is WikiLeaks part of a modern day SPECTRE (Special Executive for Counter Intelligence, Terrorism, Revenge and Extortion) that wreaked havoc on the world in the James Bond books and movies? The latest WikiLeaks document release is extremely politically damaging and it appears that it was intentionally timed to inflict maximum political and economic damage on the United States. Why else were the documents released over Thanksgiving weekend just before the World Cup vote?

To learn more about these issues you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved

USPTO's Inquiry on Copyright Policy in the Internet Economy Comments Due on 11/19/10

The U.S. Department of Commerce's Internet Policy Task Force is reviewing how copyright law should evolve to balance the needs of content creators and users in the Social Media Age. Since the original Napster came on the scene in 1999, copyright protection has become more difficult for rights holders. Napster's technology created the first widely distributed peer to peer file sharing system that enabled its users to easily share MP3 files. Napster and its progeny such as Limewire (which was shut down a few weeks ago) allowed consumers to download/share music for free. If you were an artist, content creator, or content owner such as a musician, publishing house, record label, movie studio, author, etc... peer to peer file sharing changed your business model almost overnight and made it more difficult to profit from your copyrighted work.

Therefore, those parties that are interested in affecting government policy on copyright protection in the Social Media Age have until November 19, 2010 to file comments about how copyright law should evolve. To file comments electronically you may e-mail them to: copyrightnoi-2010@ntia.doc.gov.

To learn more about copyright protection in the Social Media Age you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved

ALM Has Relaunced Law.com

I encourage my readers to check out ALM's relaunched Law.com website. The updated site is easier to navigate and has an enhanced content offering. In particular, the site contains more articles and information from ALM's newspapers, magazines, newsletters, etc.. and from sources outside the ALM family. The Legal Blog Watch is now located under the News heading on the far left of the menu on Law.com's home page. The streamlined look is also more aesthetically pleasing than before. If you have any suggestions that you want me to pass along to the team involved with the relaunch please let me know.

[Full Disclosure: Shear on Social Media Law is syndicated by ALM's Law.com Blog Network]

Will The FEC Regulate Social Media For the 2012 Election Cycle?

The Federal Election Commission (FEC) may need to regulate the use of social media for the 2012 election cycle. As I have repeated time and time again, I am not in favor of the government regulating every nook and cranny of our existance. However, this is not 1999 and we are no longer in the Internet Age. We are in the Social Media Age.

The Internet Age was about emailing and surfing the web. The Social Media Age is about conversation, engagement, and user generated content. Think Facebook, MySpace, Twitter,YouTube, and Foursquare for starters.

Under the FEC's October 2006 Special Notices on Political Ads and Soliticitations, public communications are:
•Broadcast, cable or satellite transmission;
•Newspaper;
•Magazine;
•Outdoor advertising facility (e.g., billboard);
•Mass mailing (defined as more than 500 pieces of mail matter of an identical or substantially similar nature within any 30-day period);
•Telephone banks (defined as more than 500 telephone calls of an identical or substantially similar nature within any 30-day period); or
•Any other general public political advertising. General public political advertising does not include Internet ads, except for communications placed for a fee on another person’s web site

Even though the FEC Internet and Communications Activity regulations were updated in June 2007 and appear to cover most Internet activity due to the language, "and any other form of communication distributed over the Internet", they were created before the widespread use of social media for political campaigns. (See page 64 of the Final Rules and Explanation and Justification for the Internet Communications Rulemaking). Therefore, I believe the time is right for the regulations to be updated again to reflect changes in technology. As the 2008 Presidential Election first demonstrated, social media has the power to elect a President and change the course of history due to its viral nature.

Until the widespread use of the Internet in the U.S. in the late 1990's, people obtained most of their information from television and print. In my opinion, some people already obtain most of their information from social media and this number will increase in the future. Since television, radio, and print election advertising generally has some type of disclosure requirement, I do not believe it would be burdensome to require disclosure requirements for a federal candidate's official campaign social media pages and accounts since social media is being used to advertise to potential voters. This requirement would ensure that voters know that a social media account is the actual candidate's and not a fake page. I am not in favor of the FEC creating new guidelines that may hamper free speech or make it economically burdensome or administratively difficult for candidates to utilize social media.

Earlier this year, the State of Maryland created model social media election regulations that may be easily adopted by other states for state elections and by the FEC for federal elections. I assisted the State of Maryland in drafting these regulations and input was received from Facebook, Yahoo!, AOL, and Google. Since Maryland's regulations received input from the social media industry and a social media lawyer, the final regulations were passed with near unanimous support.

In my opinion, social media will never replace personal candidate-voter interaction. However, social media adds another method to connect with voters that print and television communication does not. Therefore, due to the growing usage of social media the FEC should create social media election regulations based upon Maryland's model for the 2012 campaign cycle. I would be happy to provide assistance to the FEC when they are ready to draft federal social media election regulations.

To learn how to properly utilize social media for state and/or federal elections you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

A Wall Street Journal Investigation Proves the Need For the Social Media Privacy Protection Act

A recent Wall Street Journal investigation found that some third party applications on Facebook and MySpace were both obtaining more personal data from the applications' users than they were allegedly allowed. This situation has been going on for a long time so I am not sure why this was such a shock to major media outlets. I have been writing about the need for stronger internal privacy controls by the major social media sites for months because of this issue.

On June 2, 2010, I blogged that Facebook/Disney's Tickets Together application was inherently dangerous. This application enables child molesters to know in advance where our children may be at a particular date and time. After Facebook/Disney launched the application, the New York Times wrote an extremely positive article about the application without fully understanding how the application works. Even after I pointed out how dangerous this application may be to our children, the New York Times dropped the ball and did not investigate this application or others. However, I am glad that the Wall Street Journal did the investigative reporting that was needed to demonstrate that some social media web sites may turn a blind eye to this troubling problem.

Earlier this year, Gawker reported that Google fired an engineer because the engineer allegedly accessed user accounts without authorization. The engineer allegedly accessed the accounts of young children. According to TechCrunch, this is the second time a Google engineer has been fired for unauthorized access of users' accounts. In that same TechCrunch article, it linked to a blog post that alleged that at least two Facebook employees have been fired for accessing its users' data.

I am loathe to articulate the need for further government regulation because the government has a hard time enforcing the laws already on its books and delivering some basic government services. For example, why can't the government settle on a secure and reliable method to vote? Electronic voting without a paper receipt that may be reviewed for a recount is too easily susceptible to hackers.

An easy solution to unauthorized data proliferation is to avoid putting your personal or professional information on a social media site. However, the social media companies want you to continue to "share" so they can monetize your data and users want to continue to "share" so they showcase themselves to others. There is no easy answer here but since the industry continues to fail miserably to enforce its own internal policies and does not have any real incentive to protect its users' data it may be time for Congress to act. Therefore, until the major social media companies demonstrate a real initiative to protect its users' personal data I strongly advocate for the passage of the Social Media Privacy Protection Act.

To learn how to protect and monetize your social media profile you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Brett Favre, Sexting, and Social Media Crisis Management

Brett Favre, the NFL, and the Minnesota Vikings have a social media public relations crisis that needs to be resolved immediately. This matter was allegedly caused by Brett Favre's innapropriate use of social media and electronic communication devices.

According to Deadspin, in 2008 while Brett Favre was playing for the New York Jets he contacted Jets hostess Jenn Sterger mulitple times in order to spend some "personal time" with her. It appears that Ms. Sterger was not interested in spending "personal time" with Favre. On Deadspin.com's website it is also alleged that Favre may have tried to have inappropriate contact with other females who had some type of professional relationship with the Jets organization. The messages allegedly left by Favre on Sterger's voice mail appear to be very troubling. In addition, it is alleged that Favre sent pornographic photos of himself electronically to Sterger.

On December 2, 2009, and on December 10, 2009 I discussed how Tiger Woods should handle his social media crisis. Unfortunately, Woods did not follow my advice and he lost his family, his reputation, millions of dollars in endorsements, and the ability to focus on his professional career.

As of this writing, Brett Favre has not publicly addressed in detail this matter and has reportedly only apologized to his teammates for being a distraction. Favre has said little to the media regarding the allegations against him. However, Favre has not stated that he is innocent of these allegations.

If Favre directly addresses this matter he has to be careful about what he says because there may be legal issues in addition to the NFL personal conduct policy issues that need to be resolved. At first glance, it appears that any possible legal issues may only be civil and not criminal in nature. One possible legal issue may be sexual harassment. However, this situation is fluid and may change depending on the facts uncovered.

Therefore, I advise Favre to do what I advised Woods to do: sit down with your legal counsel and tell them exactly what happened so your legal team can draft and execute a strategy that will keep your reputation intact. Favre's relationship with his family, fans, sponsors (Ex: Wrangler), the NFL community, etc... depends on Favre working closing with his legal team to resolve this matter. If there is a possibility that Favre's accuser has evidence that may damage Favre's reputation it may be in Favre's best interests to reach a confidential settlement with his accuser so Favre can keep his image intact. I would hate to see Favre experience the same type of downward spiral that has engulfed Tiger Woods.

This matter should be a wake up call to everyone to watch what you post on the Internet. In particular, you should be careful about what you write in an email, what you say in a voice mail or text message, and what you post on a social media site such as Facebook, MySpace, and Twitter, etc...

To learn how to protect your social media profile you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook's New Group Tools Should Be Opt-In

Facebook recently launced a new tool called Groups that enables users to create mini social networks within a Facebook user's list of friends. According to the Wall Street Journal, "Facebook’s CEO Mark Zuckerberg said the impetus for groups was to make communicating with your friends on Facebook more like talking with them in the real world."

Facebook Groups was created not to mimic real world communication but to better enable Facebook to monetize your personal data. Many Facebook users have hundreds of Facebook Friends. However, Facebook does not know what a user's true relationship is with each of its Facebook friends. A user's Facebook Friends may include: high school friends, college friends, graduate school friends, co-workers, family members, strangers, associates, significant others, ex-friends, ex-significant others, etc...

According to a recent PC Magazine article, a Facebook spokesperson stated "[w]e made the decision to allow Group members to add others to the Group in order to make the product simple, and because it resembles something we all understand: adding one of your contacts to an e-mail thread." An e-mail thread may be more analagous to unsolicited junk mail (snail or email) than a real group. In addition, opting-in instead of opting out would have made the product simple for users because opting out forces users to take steps that are not user friendly.

If Facebook wanted to make its new Groups feature mimic real world communication it would have enabled users to individually opt-into Groups instead of making users opt-out. Making users opt-out instead of opt-in has the potential to create some unintended legal issues for some of its users. For example, what if a boss or family member or friend reviews a Group page and found out you were a member of a Group that had some sort of stigma?

In my opinion, Facebook made groups opt-out instead of opt-in to better collect and then sell your personal data to marketers. Facebook is on a furious pace to monetize its users' data to demonstrate to prospective bidders for its future IPO Facebook's monetary potential. If Facebook cares about its users' privacy it will change its Group's feature to be opt-in instead of opt-out. When was the last time you had to opt-out of going to dinner with a real group of friends? To go out with a real group of friends you must opt-in. Therefore, I challenge Facebook to correct this major oversight to its new Group tool.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Latest Cyberbullying Tragedy May Trigger Congressional Action To Address Social Media Law Issues

Cyberbullying has once again gained national headlines due to the recent tragic case of Tyler Clementi. To summarize this case, Clementi was a freshman at Rutgers University who committed suicide by jumping off the George Washington Bridge. Clementi was apparently extremely distraught because allegedly his roommate and another student utilized a webcam to stream onto the Internet Clementi being intimate with another person.

The students who allegedly set up the webcam that captured Clementi without his conset have been charged with Invasion of Privacy. Unfortunately, there is usually a lag between the rapid pace of new technology and the law that governs the use of new technology. In the case of civil and criminal digital crimes this lag is substantial.

This past July, I wrote about cyberbullying because a new Georgia law aimed at curtailing cyberbullying may have some unintended 1st Amendment related consequences. While I believe that Georgia's cyberbullying law has the right intent I do not believe it will withstand constitutional scrutiny for the reasons I stated in that post.

Unfortunately, it has taken another cyberbullying victim to get the attention of Congress. Over the past several years, there have been several high profile cases of cyberbullying. Earlier this year, Phoebe Prince was the poster child for cyberbullying. Now Tyler Clementi. I would hate to see another person's life cut short because they felt their life was over because of content that was uploaded about them online.

Currently, 45 states have some type of anti-bullying law. Even with all of these laws on the books this problem still persists. I believe education at home and in the schools is the best first line of defense in combatting cyberbullying. However, it appears that this may not be enough to deter this destructive activity.

Therefore, I would be happy to assist Congress in drafting a national anti-cyberbullying statute that would balance the need for 1st Amendment protection along with the way information is spread in the Social Media Age along with the need to protect cyberbullying victims. If Senator Lautenberg's office is interested in my assistance his office may contact me directly at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The Social Network, Facebook, Mark Zuckerberg, and Social Media Public Relations

The movie "The Social Network" premiered in New York City this past Friday and will be widely distributed on October 1st. The screenplay was written by Aaron Sorkin and is based on Ben Mezrich's book, "The Accidental Billionaires: The Founding of Facebook A Tale of Sex, Money, Genius, and Betrayal."

According to the Wall Street Journal, Facebook tried to influence the narrative in "The Social Network." Last month, the New York Times stated that, "[b]ehind the scenes, however, Mr. Zuckerberg and his colleagues have been locked in a tense standoff with the filmmakers" regarding the content of the film." I don't blame Facebook for trying to persuade the filmmakers to create a film that puts its founder in the best possible light; however, Facebook needs to realize that trying to massage a message in the Social Media Age is very difficult. Instead of trying to ignore "The Social Network," Facebook should embrace and own the story of its founding with its warts, real and imagined.

In the movie, "Clear and Present Danger," the fictional president has a public relations problem on his hand because a close friend of his may have been involved in drug trafficking. Harrison Ford's character (Jack Ryan) advises the president something along the lines that he should tell the media that the friend in question was not just a friend but a close friend. This advice killed the story because the fictional president embraced and owned up to the relationship.

On December 2, 2009, and then again on December 10, 2009, I blogged how Tiger Woods should handle his public relations situation and provided David Letterman and Meredith Baxter as examples of great Social Media public relations. As the world knows, Woods did not listen to my advice. Woods allowed the situation to spiral out of control and he lost his family, hundreds of millions of dollars, and his ability to focus on his profession.

Facebook and Mark Zuckerberg should openly embrace and promote the movie, "The Social Network" because downplaying the movie and/or ignoring it enables others to own the narrative. Zuckerberg is extremely hypocritical because he wants everyone to share their private information but he refuses to reciprocate. If Zuckerberg held a press conference and publicly explained the entire situation regarding the founding of Facebook and was open and honest about all the lawsuits he has had to settle surrounding Facebook's founding the story would die a natural death because he would own the narrative.

I have read Ben Mezrich's book, "The Accidental Billionaries" and David Kilpratrick's "The Facebook Effect". Mezrich's book is a much more interesting account than Kilpatrick's. In addition, I watched Zuckerberg's recent Oprah appearance and Zuckerberg seemed uncomfortable when "The Social Network" was brought up.

The truth in how Facebook was started is most likely somewhere in between Mezrich's account and Kilpatrick's Facebook endorsed version. "The Social Network" has been made and Facebook and Zuckerberg's public relations team should embrace movie. Facebook's stance towards the movie is only going to encourage more people to want to see it.

The bottom line is that Facebook and Zuckerberg need to reevaluate their Social Media Public Relations strategy.

To learn how to create and execute a Social Media Public Relations and Crisis Management Plan and to understand the legal issues that may affect your plans you may contact me at http://www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Protecting Your Social Media Profile Against Text Spam

On April 29, 2010, I stated why the Social Media Privacy Protection Act is needed. I reiterated my position again on July 25, 2010. I did not wake up thinking about privacy issues. However, when I logged into my Google account this morning, I received the message, "What would happen if you lost access to your Google Account tomorrow?" The screen listed my email address and requested my cell phone number in case I need to reset my password.

In my opinion, password resets via cell phone SMS is a ruse to obtain access to your cell phone number so the number may be used at a later date to perform mobile marketing. Social Media companies are trying to collect as much information about their users as possible because they are building a monetizable data bank. As the Brits may say, "brilliant."

Google may argue that a cell phone number is the easiest and most secure way for a consumer to obtain a password reset. I disagree. The best way to do this is via email and/or a personal security question. Google recently fired an employee for accessing the personal accounts of its users. Just think of all the possibilities when private companies (not the government-whole different conversation) have access to this type of personal information.

Social Media companies are trying to entice their users to turn over as much of their personal information as possible. Unfortunately, too many consumers are freely providing Social Media companies their information without a second thought. For example, there is no reason for any company to ask for or for anyone to list their religion on their social media profile.

When I recently tried assisting a friend of mine with obtaining a personal URL for his Facebook account it requested a cell phone number for confirmation. When I obtained my personal URL soon after consumers were allowed to do so I did not need to provide a cell phone number. Social Media companies want your cell phone number so they can monetize this information.

The bottom line is that people need to be careful about providing any data to third parties. Do you really want to be bombarded at some point in the future with spam text messages that you will have to pay for? Therefore, unless a company needs your cell phone number do not provide it.

To learn how to protect your Social Media Profile you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Corporate Counsel's IP Trademark, Copyright & Licensing Cousel Forum

On September 14th and September 15, ALM's Corporate Counsel will be hosting a seminar that will discuss current intellectual property issues. The conference's keynote speaker will be Marybeth Peters, Register of Copyrights. Intellectual Property practitioners from all over the country will be speaking and will be in attendance.

Some of the topics that will be discussed at the conference include: Protecting Your IP in a Digital Environment, Monetizing Your Copyright and Trademarks, Recent Online Litigation Developments, Structuring Licensing Programs, and IP Issues in Social Media Marketing.

Some of the organizations that will be represented at the event include: The New York Times, the Recording Industry Association of America, The Author's Guild, Gannett Co., the U.S. Copyright Office, News Corporation, Comcast Entertainment Group, Conde Nast, ESPN, ABC, and NBC Universal.

The Conference will be held at The Harvard Club of New York. For more information click here.

[Full Disclosure: Shear on Social Media Law is part of ALM's Law.com Blog Network]

9/11/2001, the 1st Amendment, and Social Media

Today marks the 9th anniversary of September 11, 2001. On September 11, 2001, at least 19 terrorists attacked the United States without any provocation. Nine years ago, I was living several blocks away from the World Trade Center and I witnessed first hand the tragedy and aftermath of this cowardly attack against our country. Due to the destruction that was caused, I became displaced from my home.

To my generation, Sept. 11th means what December 7th meant to my grandfather's generation. As President Roosevelt stated during a joint session of Congress on December 8, 1941, December 7, 1941 is a date that will live in infamy. President Bush's first official address post the September 11, 2001 attacks summed up our country's initial reaction to this act of cowardice.

In the United States, the 1st Amendment protects against most free speech. An open forum to discuss ideas is the cornerstone of a democratic society. Voltaire is credited by some with saying, "I do not agree with what you have to say, but I'll defend to the death your right to say it." This mentality was one of the inspirations of our Constitution and Bill of Rights.

In the Social Media Age, people have to be very careful about what they say and do because every action or reaction has the potential to become a news story that may change international perception in a New York minute. For example, the controversy surrounding the proposal to build a mosque in the former Burlington Coat Factory building near the site of the World Trade Center in Lower Manhattan has caused a firestorm not only in New York City but around the globe.

This story appeared to be only a local Lower Manhattan issue until President Obama commented on the subject. The President's comments were quickly carried via social media and traditional media around the globe and all of sudden it became an international issue where world leaders, political pundits, etc... offered their two cents. The on/off again plan to create a bonfire to burn hundreds of copies of Islam's holy book, the Koran by Florida preacher Terry Jones is another example of how the mainstream media and social media may shape international opinion.

The owners of the property in Lower Manhattan that formerly housed a Burlington Coat Factory have a legal right to build a mosque if they abide by all local zoning laws. In addition, Terry Jones has the legal right to burn the Koran assuming he does so in a manner that does not break any local Florida laws against creating bonfires. The First Amendment protects ideas and opinions, regardless of their popularity.

However, just because both of these parties have a legal right to do these things that does not mean they should do it. Legal rights and moral rights are two different things and unfortunately the media generally distorts these issues to create stories that will generate more eyeballs for their coverage and in turn more advertising dollars that strengthen their bottom line.

The media, politicians, military personnel, and businesses need to rethink their public relations strategy in the Social Media Age because in many instances social media fuels media coverage and this enables a story to become a much larger event than it ever should have become. I bet that Andy Warhol would love the Social Media Age because now everyone has the opportunity to get their "15 Minutes" of fame very easily. According to the Washington Post, Terry Jones' publicity plan started with a tweet. Now Terry Jones is a household name. This is another example of the power of social media.

As of this writing, Terry Jones has stated he will not hold a bonfire to burn hundreds of copies of the Koran. In turn, the owners of the building that formerly housed a Burlington Coat Factory in Lower Manhattan should rethink their position and look to build their mosque several blocks further away from the World Trade Center site. Even though both of these parties have a legal right to do what they have publicly stated they want to do, following through with their plans will only increase tensions on each side that may lead to unanticipated consequences that may have a domino affect. It is now time to allow each party to save face so each may proclaim they have made their point.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook is a Trademark Protection Hypocrite Part II

I recently wrote how Facebook is a trademark protection hypocrite because of its efforts in trying to block other companies from using the word "BOOK" in their names while not doing more to proactively protect trademarks on its own web site. Facebook is also trying to block others from using the word "FACE" in their names.

To paraphrase from an old English proverb, Facebook wants to have its cake and eat it too. This is the height of hyprocrisy. Facebook's platform enables intellectual property theft and now Facebook wants to block others from using generic terms that have been around for hundreds of years before Facebook's existence.

Facebook is currently monetizing all of its users' user generated content (UGC). This includes the trademarks of every company or individual that is on Facebook regardless of whether a company or individual has an official Facebook presence or if a third party has put that company's or individual's intellectual property on Facebook without that company's or individual's permission. Facebook knows or should know that there is widespread intellectual property theft on its web site. Unfortunately, under current law Facebook has no legal obligation to stop intellectual property theft on its web site unless a rights holder notifies Facebook of the intellectual property theft.

Facebook's intellectual property protection hypocrisy must be confronted. Facebook should not be allowed to stop others from using the words "FACE" or "BOOK" in their names and continue to profit off of intellectual property theft of others. Therefore, I challenge the AM 100 and Fortune 500 legal communities to provide assistance to Teachbook.com and to Aaron Greenspan in their legal fights against Facebook. If Facebook prevails in stopping others from using "FACE" or "BOOK" in their names this victory may have widespread unforeseen consequences.

To learn how to protect your trademarks on the Internet and on Social Media you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Facebook is a Trademark Protection Hypocrite

Facebook is the 800 pound gorilla of social media and it is doing everything in its power to stay the Big Man in Social Media (BMISM) (akin to the Big Man on Campus-BMOC). These actions include protecting its intellectual property through litigation.

Therefore, I find it rather hypocritical that Facebook is suing a company calling itself Teachbook.com and claiming that Teachbook.com is misappropriating the distinctive "BOOK" portion of Facebook's trademark. I believe that Facebook filed this lawsuit because it believes if it doesn't try to stop Teachbook.com from utilizing "BOOK" in its name other companies may try to utilize the term "BOOK" in their name and perform social networking. Facebook is not the first company to do social networking and it will not be the last company to do so. However, Facebook is doing social networking better than anyone else at this point.

Under Facebook's logic, Redbook magazine may want to look into suing Facebook for trademark infringement because Redbook has a stronger claim to the word "BOOK" than does Facebook. Redbook has been around for about 100 years longer than Facebook. In addition, it appears that Redbook has had an online presence longer than Facebook and has had an online community of users longer than Facebook. In addition, some of Redbook's users are the same type of users who may also utilize Facebook. Therefore, Redbook may have as strong of a claim against Facebook as Facebook does against Teachbook.com

It is extremely hypocritical for Facebook to claim that others are infringing on its own mark when Facebook freely allows and enables its users to infringe on the trademarks of others. Facebook knows or should know that its platform is rife with trademark infringement. Since football season is upon us, I will use the NFL as an example of how Facebook is enabling trademark infringement on its own web site. When you log into Facebook and type in "NFL" you will see a large number of users utilizing the NFL's marks without the NFL's permission. In turn, Facebook is monetizing this infringement by the advertising on its web site. Therefore, Facebook does not have any incentive to stop trademark infringement on its web site because it is profiting from the massive trademark infringement that its platform enables.

Under current trademark law, Facebook is not under any obligation to remove an infringing mark until it is notified by a rights holder of the alleged infringement. Facebook does have a mechanism in place for intellectual property rights holders to notify them of infringing material. However, Facebook should do more to protect trademark owners. Until Facebook adequately addresses trademark infringement on its own web site, it should not accuse others of trademark infringement. Remember the old saying, "people in glass houses should not throw stones?" It appears that Facebook doesn't believe in this saying because Facebook is acting like a trademark protection hypocrite.

To learn how to protect your trademarks on the Internet and on Social Media you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Plug-In Contracts and Show Me The Money

In the last few months, Facebook has been asking companies to install the Facebook "Like" button on corporate web sites and on individual articles. Facebook's "Like" button is a social plug-in and social plug-ins are all the craze right now. A social plug-in enables other users or your "online friends" to see what types of information interest you. For example, to utilize a Facebook social plug-in that is installed on a website, a Facebook user must be logged into their Facebook account. Once a Facebook user is logged into their account, they can "Like" a particular website or article on a website that has installed Facebook's social plug-in.

If a user responds to a social plug-in it enables the company who provides the social plug-in to collect data about your interaction. For example, if The Wall Street Journal installs Facebook's "Like" Button on its articles it enables Facebook to collect valuable data about The Wall Street Journal's readers. The Wall Street Journal is able to see how many Facebook users "like" an article but this data is much more valuable to Facebook than The Wall Street Journal because it enables Facebook to capture in the aggregate a tremendous amount of data about its users.

Facebook's social plug-in strategy is brilliant. Facebook is asking companies to install their social plug-in for free and it appears companies are blindly doing so because Facebook is becoming the Pied Piper of Social Media. Once a company installs Facebook's "Like" Button, Facebook is then able to collect data about a company's website users via "Like" Button usage. Facebook monetizes the "Like" Button data in what may be the holy grail of advertising.

Social plug-ins are part of Facebook's monetization strategy since Facebook is utilizing the information obtained from the usage of social plug-ins to sell advertising. If a company incorporates Facebook's social plug-ins into their website, Facebook should pay a company for utilizing this valuable real estate. A social plug-in contract may mirror in some respects a cell phone tower leasing contract since a website is a piece of virtual real estate that may have as much or more value as some pieces of real property. Therefore, if Facebook asks your company to install its social plug-in Facebook needs to show your company the money.

To learn more about social plug-in contracts and monetizing your online content you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.

Library of Congress Announces New DMCA Rules Exemptions

Since the Digital Millenium Copyright Act (DMCA) was passed in 1998, the Library of Congress ("LOC") has been tasked with the duty to review the law to determine if there should be any classes of works that may be exempted from the DMCA. On July 26, 2010, the Library of Congress announced new DMCA Section 1201 Rules for Exemptions Regarding Circumvention of Access-Control Technologies. Six classes of works were added.

This was the fourth time that the LOC reviewed the DMCA to update it. In this review, the LOC decided to allow for the bypassing of DVD Content Scramble System encryption, permitting users to jailbreak their iPhone, enabling e-books to be read out loud by their computers.

Digital Rights Management circumvention is now allowed for the following six classes of works:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;
(iii) Noncommercial videos

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

In general, the exemptions appear to be pro-consumer or the "little guy." For example, the DVD circumvention exemption may assist documentary film makers and others who want to utilize small clips of copyrighted material for their work. The updated rules on jailbreaking mobile phones may enable consumers to utilize their purchases on the platforms they desire. The bottom line is that for at least the next three years these exemptions will be the law of the land.

To learn how copyright law may affect your business you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The DMCA's Safe Harbor May Only Provide Commercial Entities a One Business Day Grace Period to Remove Infringing Content

The Digital Millennium Copyright Act (DMCA) does not state how long an Internet Service Provider (ISP)/Online Service Provider (OSP) has to respond to a claim of copyright infringement. According to the U.S. Copyright Office, "[u]pon receipt of a compliant notification of claimed infringement, a service provider must respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of the infringing activity, if the service provider seeks to receive the benefits of the limitations of liability contained in § 512(c)".

Merriam-Webster's online dictionary, defines expeditiously to mean "marked by or acting with prompt efficiency." According to Wikipedia's entry for the "Online Copyright Infringement Liability Limitation Act, "[f]or a commercially run on-line provider taking action within the hour to tell a customer that a takedown notice has been received and informing them that they must immediately remove the content and confirm removal, giving them six to twelve hours to comply; and otherwise informing them that the content will be taken down or their Internet connection terminated, may be considered reasonable."

There is no controlling case law that provides black letter law regarding the DMCA's definition of expeditiously. However, it was noted in Viacom Int'l Inc. v. YouTube, Inc., 07 Civ. 2103 (LLS) (S.D.N.Y. June 23, 2010) that when YouTube received from Viacom one mass take-down notice for 100,000 videos within one business day almost all of the infringing content was removed. Viacom's take-down notice was sent on February 2, 2007, which is more than three and half years ago. Since this mass take-down, advances in technology have made it easier to detect and remove infringing content.

Since YouTube, a commercial entity, had the resources to remove allegedly infringing content within one business day more than three and a half years ago, it is not onerous for commercial entities to abide by a one business day rule today. At first glance, it may sound onerous for a web site to be forced to remove allegedly infringing content within one business day. However, in a matter of hours a popular movie, book, or other original work may be downloaded hundreds of thousands of times. These downloads may cause serious irreparable financial harm to copyright holders.

According to the Senate Report about the DMCA (S. Rep. 105-190 at 44), "[b]ecause the factual circumstances and technical parameters may vary from case to case, it is not possible to identify a uniform time limit for expeditious action." In my opinion, this indicates that a non-profit may be held to a different less onerous standard than a commercial entity. Since S. Rep 105-190 was created, technology has drastically changed and I do not believe it was the intent of the Senate to provide ISPs/OSPs wide latitude to remove infringing content at their leisure when even a minor delay in removal may cause serious financial repercussions to rights holders.

The DMCA's safe harbor provision is already tilted heavily in favor of ISPs/OSPs. Therefore, to level the playing field it is time for either Congress or the courts to declare that under the DMCA commercial entities have one business day to remove infringing content.

To learn more about protecting and monetizing your online content you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The Social Media Privacy Protection Act Part II

On April 29, 2010, I blogged that the Social Media Privacy Protection is in the works. This bill has not yet been passed; however, I think this type of legislation will eventually be enacted because up until this point the online business community has not done enough to police itself.

On July 22, 2010, the U.S. House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection held a hearing regarding how online service providers handle user information. During the session, online industry leaders asked Congress to act in a manner that will be flexible enough to address the rapid advances in digital media. On July 27, 2010, the U.S. Senate Committee on Commerce, Science, and Transportation will have a full committee hearing on consumer online privacy. Representatives from Apple, Facebook, Google, and AT&T are scheduled to testify.

Capital Hill's interest in electronic media privacy issues has made the online business community realize that it must do a better job of being proactive than reactive to privacy issues. Unfortunately, it has taken the threat of congressional action for Internet service providers and online service providers to realize that consumers still highly value their privacy.

I believe these hearings are long overdue. However, I think it would be a mistake for Congress to overreact and draft legislation that hampers innovation. Therefore, if Congress decides to act I hope it is in a manner that offers consumers and businesses the privacy they desire without harming the online community's ability to create cutting edge technological advances.

To learn more about online privacy issues and how to monetize your social media assets you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.

Maryland's Social Media Election Regulations Are a Model For the Rest of the U.S.

This past week, the state of Maryland passed social media election regulations that require candidates for state political office to include an authority line on all of their campaign social media accounts. Maryland is technically the second state in the country, behind Florida, to officially address social media usage in state political campaigns. However, Maryland is the first state to proactively create social media regulations before its election board was forced to do so because of litigation.

Social media election regulations are needed so that voters are able to determine whether a social media account they are viewing is part of a candidate's official campaign. Of the most widely utilized social media platforms, only Twitter has a process that officially verifies accounts. Therefore, it is difficult to determine whether the page you are viewing is created by or on behalf of a person, an entity, or an activity.

Under Maryland's new regulations, social media is to be treated in the same manner as other campaign material and communication. From a conceptual standpoint, social media is an online extension of a candidate's television, radio, or print advertisements. Due to the drastic increase of social media usage since the last election cycle, it was time for political social media campaign utilization to be regulated. It is only a matter of time before the Federal Election Commission decides to regulate social media for federal campaigns.

I worked with Maryland's State Board of Elections ("Board") to draft Maryland's new social media election regulations. In June, the Board voted 4-0 to pass the regulations and earlier this week a committee of state lawmakers voted 11-1 to implement the new regulations for this upcoming election cycle. The regulations received bipartisan political support and they were also supported by the social media business community. The almost unanimous support from all of these stakeholders apparently means that I was successful at working with the Board to draft fair and balanced rules.

The regulations are not onerous on candidates and are inexpensive to follow. Also, they do not have any additional requirements that go beyond what is required for other forms of campaign media. The only drawback with the new regulations is that they do not teach candidates how to utilize social media. From my review of some of Maryland's major political candidates' social media accounts, it is apparent that politicians in Maryland need the assistance of a social media lawyer to teach them how to better deploy their social media assets.

To learn how to abide by Maryland's social media election regulations and to successfully deploy social media in your campaign you may contact me at www.shearlaw.com.


Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.

Georgia's New Bullying Law May Have Some Unintended Social Media Consequences

According to the Augusta Chronicle, the public school board in Richmond County, Georgia is banning almost all social media utilization by students on school computers for this upcoming school year. Students will only be allowed to utilize social media from public school computers if the usage it is part of their curriculum. This new ban is in response to a new law state law, The Georgia Bullying Law, O.C.G.A. 20-2-751.4 that goes into effect for the 2011-2012 school year.

I commend Georgia for their efforts to address bullying. At first blush, this new law appears to be a great idea. Its intentions are to stop a very troubling problem that may have long term negative consequences on those who are affected by bullying. However, while reviewing the new law I realized that the definition of bullying may be problematic. For example, O.C.G.A. 20-2-751.4 (a) states, "[a]s used in this Code section, the term 'bullying' means an act which occurs on school property, on school vehicles, at designated school bus stops, or at school related functions or activities, or by use of data or software that is accessed through a computer, computer system, computer network, or other electronic technology of a local school system,..."

The law's language covers the use of school owned electronic equipment and it may also apply to personal owned hand held devices. With the proliferation of mobile devices such as Blackberries or iPhones it will be very difficult and extremely expensive to enforce this new law because school officials may now have to determine where a Facebook post, Twitter update, or other social media communication occurred and the post's intent. There may also be some First Amendment challenges to this new law due to its broad definition of "bullying".

Social media postings by students are the modern day equivalent of passing notes and writing on the walls of the bathroom stalls in schools. The biggest differences between "old school" student communication and Social Media Age student communication is that the postings on social media generally have a much larger audience.

Implementing this new law may end up costing the taxpayers of Georgia more than they anticipated because it appears that it may provide authorities the ability to start subpoenaing family phone records and social media account records to determine who made a social media post and when and where the post was made. In addition, there are social media account authentication issues that will have to be addressed.

I believe that it would be more effective to educate students on proper social media manners and usage. This may be done via social media classroom instruction or by having an outside expert discuss social media issues with students. Legislating without education will not solve the problem. Education is the most powerful tool that can be provided to a student. Therefore, I urge Georgia to amend this new law before unintended consequences occur.

To learn how to educate students about the proper ways to utilize social media you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.

Social Media Defamation

According to Law.com's online legal dictionary, the definition of defamation is: "the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one's occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error."

In the Social Media Age, libel and slander can be devastating to a person or the reputation of a business. There are numerous web sites that allow consumers and other third parties to post comments about a business or a person. Under Section 230 of the Communciations Decency Act, ISPs generally have immunity from all information posted on their websites by third party users if they meet a three pronged legal test.

On July 8, 2010, the Lebron James sweepstakes ended when James decided to sign a new contract with the Miami Heat. His old employer, the Cleveland Cavaliers was devastated. Dan Gilbert, the Cavaliers' owner posted an open letter to Cleveland's fans that bashed James. The letter contains Gilbert's opinion and does not appear to libel James. However, in an interview with the Associated Press it appears that Gilbert may have slandered James by stating, "He [James] quit, Not just in Game 5 [In the 2010 playoffs], but in Games 2, 4 and 6. Watch the tape. The Boston series was unlike anything in the history of sports for a superstar." In general, libel and slander lawsuits are more difficult for celebrities to win than for those who are not in the public eye.

James had fulfilled his contract and had no legal obligation to continue to work for the Cleveland Cavaliers. That being said, both James and Gilbert could have handled the situation in a more professional manner. James should not have requested the one hour ESPN special to announce that he was leaving Cleveland and signing with Miami. However, Gilbert's reaction to James' decision does not make him a sympathetic figure and it may have caused him some legal liability. The bottom line is that in the Social Media Age every writen or spoken word can be easily disseminated around the world in seconds. Therefore, every time a company communicates with the media it needs to understand both the public relations and legal ramifications of its message.

To learn how to avoid social media defamation you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.

Viacom vs. YouTube May Be a Victory For Copyright Owners

The Viacom Int'l Inc. v. YouTube, Inc., 07 Civ. 2103 (LLS) (S.D.N.Y. June 23, 2010) summary judgement in favor of YouTube was hailed as a victory for technology companies and a loss for copyright owners in most major publications. In my opinion, the instant analysis of the case and its effect on future litigation misses a key important point. This point is the amount of time that Internet Service Providers (ISPs)/Online Service Providers (OSPs) have to remove infringing content once they have received a Digital Milenium Copyright Act (DMCA) take down notice.

There is a saying among lawyers that goes something like, "when the law is against you, argue the facts. When the facts are against you, argue the law. If both the law and the facts are against you, attack the other side." In this case, the law was clearly against Viacom. The DMCA's safe harbor is as wide as the Pacific Ocean. 17 U.S.C. Section 512 (c) provides ISPs/OSPs broad protection against claims of copyright infringement by rights holders whose work appears on the ISP's/OSP's websites. In addition, the facts of Viacom's case appeared to favor YouTube. According to the facts of the case, Viacom spent several months accumulating over 100,000 videos that were illegally uploaded to YouTube and then sent one massive take down notice on February 2, 2007 to YouTube. By the next business day, YouTube had removed virtually all of the illegally uploaded videos.

The bottom line is that the take down provisions in the DMCA worked. Several months after the lawsuit was initially filed in 2007, YouTube launched a service called Video Identification Tool which assists copyright holders in protecting their content from being illegally uploaded onto YouTube. It appears that YouTube was extremely responsive in this matter.

If YouTube did not act as quickly as it did to remove the infringing content then I believe Viacom's position would have been greatly strengthened and a different outcome may have occurred. Therefore, I don't think this was the best test case for copyright holders.

In my analysis of the DMCA, ISPs/OSPs have only a small window of time to remove infringing material once they have received a DMCA take down notice. The next time an ISP/OSP is sued for enabling copyright infringement it will need to prove that it took no more than a few business days to remove the alleged infringing material after it has been notified. If it takes more than several days for the alleged infringing material to be removed I believe that the copyright holder will have a stronger case than Viacom that the ISP/OSP should not be protected under the DMCA's safe harbor provisions. Since it took YouTube only one business day after it received a DMCA take down notice to remove the infringing content, the bar is set extremely high for other ISPs/OSPs. The take down notice was also sent more than 3 years ago and since then technology should make it even easier for ISPs/OSPs to remove infringing material once they have been notified. Therefore, I believe the length of time it takes an ISP/OSP to respond to a DMCA take down notice may be a central issue in future litigation.

To learn how to protect and monetize your intellectual property you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Supreme Court Issues Groundbreaking Social Media Law Case

The U.S. Supreme Court earlier today issued a unanimous ruling in the City of Ontario, California et al v. Quon government workplace privacy sexting case. The Court ruled that a public employer's review of text messages on a publicly owned electronic device was a reasonable search under the Fourth Amendment and that the Ninth Circuit erred by concluding otherwise. The Court focused on the Fourth Amendment search issue and side stepped the broader expectation of privacy issue.

On December 14, 2009, I blogged about this case and I opined that 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 all electronic communications that are sent via an employer owned account. My opinion was based on the premise that while using employer owned devices employees either know or should know that their employer may need to review the messages that have been sent via the electronic device for a work-related purpose.

Here, the Petitioner, City of Ontario, had purchased pagers for Respondent, Quon and others who were employed by the City. Only after Quon and other public employees had exceeded the character limits that the City had purchased on their behalf for several months did the City inquire why this was occurring. Upon reviewing the transcripts of the messages that Quon was sending, the City realized that a large percentage of the sent messages were personal and not work related. Quon was disciplined for misusing his City owned electronic device so he filed a suit against the City. The City of Ontario had a policy on computer, Internet, and e-mail use that clearly stated that the city had the right to monitor such communications. The policy allowed “light personal communications” but said “users should have no expectation of privacy or confidentiality.” Sergeant Quon signed a statement agreeing to the City's policy.

The Quon decision should be a wake up call to government employees. In the public sector, electronic communications sent through employer owned electronic accounts may not be subject to the Fourth Amendment’s protection against unreasonable searches, as long as employers have “a legitimate work-related purpose” for inspecting the communications. Both public and private employers need to have policies in place that outline the usage policy of employer owned devices and accounts because the line is blurring between personal and business use of electronic devices and accounts. I predict that the Supreme Court will be hearing more cases in the near future regarding similar issues and that the court will need to understand the specific nuances of social media and the electronic devices utilized to access these new technologies and platforms.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.

Intellectual Property Law is Useless in the Social Media Age

The major tools that companies have to protect their intellectual property rights in the Social Media Age were created before and during the Internet Age of the late 1990's. Under current law, copyright and trademark holders have several different remedies available to go after cyber-squatters and those who utilize copyrighted material and trademarks without permission. Some of the tools available include the Lanham Act and the Anti-Cyber Squatting Protection Act, The Digital Millenium Copyright Act, and ICANN's Uniform Domain Dispute Resolution Policy.

Facebook, MySpace and Twitter, (scroll down to the Copyright Policy), and YouTube all have policies in place for companies to report theft of their intellectual property. Even though some of these companies, (Ex: Facebook) appear to have a policy in place that addresses the problem when a company's trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark.

Screen/user name intellectual property infringement is a major problem. For example, on Facebook there is a popular page that at first glance appears to be Nike Shoes. Upon closer examination, even though this page has over 2.2 million "likes" it does not appear to be a valid Nike Shoes Facebook page. In addition, if you type in www.facebook.com/nikeshoes you are directed to an entirely different Facebook page that appears to be another user. Visiting MySpace's "Nike Shoes Page" demonstrates the same problem. If you type in www.myspace.com/nikeshoes you will notice that you are directed to the page of a Nike shoe collector/seller.

Through a quick check of the United States Patent Trademark TESS search system it appears that "Nike Shoes" is not trademarked. However, "Nike" was trademarked in 1972 for "ATHLETIC SHOES WITH SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES" and "ATHLETIC SHOES WITHOUT SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES". Therefore, Nike has a very strong claim that the term "Nike Shoes" infringes on its trademark.

The bottom line is that intellectual property law needs to catch up with the Social Media Age and/or social media companies need to be willing to provide the contact information of those who are charged with determining if a screen/user name infringes on a trademark or if posted material violates a copyright. Providing forms for intellectual property rights holders to complete when an alleged violation occurs is a start but does not adequately address the situation. More accountability is needed.

To learn how to combat the theft of your company's intellectual property via social media you may contact me at http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Disney's Facebook Application For Toy Story 3 Is Inherently Dangerous

Disney's new Facebook application made a splash in the New York Times yesterday. The New York Times article states, "[t]he application, called Disney Tickets Together, could transform how Hollywood sells movie tickets by combining purchases with the powerful forces of social networking." The Disney Tickets Together application will alert your Facebook friends and invite them to also buy tickets to the same Disney event.

Oliver Luckett, SVP and GM of DigiSynd, a Disney subsidiary is quoted in the article as saying “[t]he whole idea is that no friend gets left behind.” This mentality is extremely troubling because it demonstrates Disney's utter lack of concern for the personal privacy of its customers who purchase tickets via Facebook. Creating a Facebook application that focuses on Toy Story 3's target audience, children, is especially upsetting. This application will allow child predators to know who will be attending an event and where they will be. It is an application that child molesters can easily utilize to target their prey.

Applications that utilize a Facebook user's information is a lazy method of social media engagement. Instead, Disney should immediately terminate this application and focus its Facebook strategy on engaging and conversing with its more than 3.5 million Facebook "likes." A review of Disney's Facebook page demonstrates that Disney's current strategy involves posting a link and then letting its fans comment on the post. Where is the social media interaction and engagement?

Facebook needs to ban application developers from being able to access your personal information as a prerequisite to utilizing an application. There is no reason why an application that asks, "What old school WWF wrestler are you?" needs to know your personal data and your friends information. For the record, I was labeled Hulk Hogan. All the information the application needs is included in the questions the application asks you to answer.

Facebook and Disney need to share the blame for this new application because Facebook's recent privacy controls do not go far enough in protecting a user's personal information. The new privacy controls should enable a user to have full control over his or her Facebook profile. Unfortunately, the new privacy controls do not fully enable a user to pick and choose what information is shared. Facebook's failure to properly protect its users' personal information demonstrates why the Social Media Privacy Protection Act is needed.

I grew up loving Disney movies, their theme parks, and the entire Disney experience. Walt Disney was a visionary in experiential marketing. However, this Facebook application that Walt Disney's successors have created has crossed the line. Disney's new application is an inherently dangerous one because it provides child molesters with information they may utilize to harm our families. I would highly advise other entertainment companies not to follow in Disney's footsteps because there is no legitimate reason for a movie studio to create an application that utilizes its Facebook's customers' data.

I challenge Facebook CEO Mark Zuckerberg and Disney's CEO Robert A. Iger, and any other Fortune 500 CEO to provide a rational reason why access to my personal Facebook data or my friends' data is required for Disney's Tickets Together application or any other Facebook application. To resolve this issue you may contact me directly at 301-652-3600 or at bshear@shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.