Disconnecting From Social Media in 2012

Disconnecting from social media may help one realize that there is more to life than Facebook posting, Tweeting, Google plussing, etc... On Wednesday January 4, 2012, I discussed some of these issues with Washington, DC's Fox 5 News morning Co-Anchor Tony Perkins.

Disconnecting from Technology in 2012: MyFoxDC.com

Life is more fun in the real world than in the virtual world.

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is Cleveland's improper use of social media ordinance unconstitutional?

Cleveland is known for many things. Both famous and renown. They may also soon be known as one of the first large cities in the United States to ban "destructive" social media "Flash Mobs".

According to Wikipedia, a Flash Mob "is a group of people who assemble suddenly in a public place, perform an unusual and sometimes seemingly pointless act for a brief time, then disperse, often for the purposes of entertainment and/or satire. A flash mob may be organized via social media, texting, email, or other electronic platforms.

According to Cleveland's City Council website, the new "ordinance would focus on intended use of social media to cause public disruption". Cleveland's City Council passed the law last week to combat Flash Mobs or what others may call "Tweet Ups".

What if there is a national political convention or another large event in Cleveland and social media is utilized to gather interested people to express their opinions? What will happen when the Baltimore Ravens or Pittsburgh Steelers come to town for their annual AFC North games against the Cleveland Browns and people utilize social media to talk trash about the game? One person's Flash Mob is another person's Tweet Up. How will the law be enforced?

Does Cleveland have a special ordinance on the books against utilizing a phone, a radio or television program, etc... to address the issues that this law is trying to combat? Does Cleveland's City Council need a refresher course on the First Amendment, Common Sense, etc...?

I believe this new ordinance is an over-reaction. The best course of action is to enforce the current laws on the books. The ink has barely dried and the ACLU has already sought to repeal it. I hope that Cleveland's City Council sees the error of its ways before tens or hundreds of thousands of dollars in legal fees are wasted defending this ill-conceived law.

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

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media Law Predictions For 2011

Reading the tea leaves and advising clients is what lawyers are paid to do. 2010 was the coming out party for social media and social media law. With the release of the movie "The Social Network" and Facebook surpassing Google in several different web traffic metrics, social media and the practice of social media law has finally come of age. In no particular order, below are some of my social media law predictions for 2011:
1. Employers will continue to grapple with where to draw the line regarding employee social media use.
2. More courts will address social media usage in their instructions to juries and there will be more e-discovery related social media matters.
3. The judicial system, bar associations, and bar counsels will work to find a common sense approach regarding how lawyers, judges, and clients may or may not interact with other other on social media.
4. Intellectual property law will be updated to better protect copyright owners.
5. The Federal Election Commission and state election boards will update their rules to address social media usage by political candidates.
6. Regulated industries such as banking and finance, pharma, etc...will continue refining their approach to regulating social media usage.
7. Federal and state governments will determine what official government social media records need to be retained.
8. Homeland Security, the CIA, FBI, NSA, U.S. Armed Forces, etc... will need re-evaluate their social media policies and determine what they allow their employees to post online.
9. Cyberbulling, Privacy, Defamation, and First Amendment issues will become further intertwined and a rational legal framework will need to be created to address these matters.
10. Social Media Credential Fraud will continue to increase as more people will try to create the perception that they are experts in their professional field due to their social media activity.

To learn more about my social media law predictions you may contact me at www.shearlaw.com.

Copyright 2011 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.

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

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.