Wouldn't it be great if we didn't have to carry around a wallet with a driver's license, credit cards, ATM cards, health insurance cards, etc...? As Apple famously trademarked and states in some of its commercials, "There's an app for that". For almost every interaction we have in the real world, software developers are creating apps to allegedly make our lives "easier" and more "frictionless".
In the tech world, "frictionless" may mean making it very easy to "share your personal thoughts, viewing habits, etc...without violating privacy laws", or making it very easy to "make online purchases." This is why so many companies are rushing to create apps for users. Unfortunately, multiple FTC reports have found many apps lack proper disclosures which may in turn lead to data leakage which creates cyber safety challenges for users.
The latest app that aims to make our lives "easier" is an app that may replace a physical Iowa driver's license. At first glance, this sounds great. Since more and more people are using their smartphones to do every day tasks and these mini computers hold so much of our personal information why not utilize an app which would mean one less thing (physical driver's license) to carry around?
There are numerous questions that still need to be answered. If a person who uses the app is questioned by a police officer during a "routine traffic stop" or a "stop and frisk" and asked to show the driver's license app will a police officer be able to access other parts of the phone or will a password be needed? What happens if a text message, email, or phone call comes through at the moment the police officer is reviewing the app license? Will the police officer be able to see the sender of the message, or the contents of the communications, or the phone number of the caller? When downloading the app, will it request access to your contacts or want to see what other apps you have downloaded like Twitter?
According to the recent Supreme Court decision in Hein v. North Carolina, the police may stop a car based on a "reasonable" misunderstanding of the law. What if while reviewing a driver's license app a police officer "misunderstands the law" and searches your smartphone, or makes subtle threats about providing access to your smartphone?
The bottom line is that there are still many questions that need to be answered regarding this new app. As more and more of our lives become digital, it is imperative that app developers work closely with lawyers and regulators to ensure that privacy by design is part and parcel of the process. While we may not know all of the potential consequences of utilizing driver's license apps, it is important that we have a national conversation about these issues to ensure that our 4th amendment rights are properly protected in the Digital Age.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Showing posts with label Social Networking Lawyer. Show all posts
Showing posts with label Social Networking Lawyer. Show all posts
Tuesday, December 16, 2014
Sunday, March 17, 2013
Did Social Media Convict the Steubenville High School Football Players?
Two guilty verdicts were handed down in the rape trial of two Steubenville high school football players. There were no winners in this case. A teenage girl lost her innocence, a couple tennage boys are forever branded as sex offenders, and a small town may now be known as that town where a disgusting crime came to light because of the power of social media.
Without social media, it is possible that this case may never have gone to trial. After the New York Times covered this matter last December, the story picked up steam. Subsequently, Anonymous allegedly hacked into the digital accounts of some of those who may have been involved or witnessed the activities surrounding the alleged criminal activity.
YouTube, Instagram, Twitter, and text messaging were utilized by those who either witnessed the incident or who may have been involved with the matter. The digital content that came to light shocked and sickened the public and may have helped convict the perpetrators of this crime.
According to ABC News, "[t]he contents of 13 cell phones were analyzed, which amounted to 396,270 text messages, 308,586 photos, 940 videos, 3,188 phone calls and 16,422 contacts." Absent the digital evidence via multipe social media platforms would there have been a guilty verdict? While witness testimony may be persuasive, photos and videos have the ability to become very powerful evidence that may trump eyewitness testimony. Even though this isn't the first case where social media may have affected the outcome of a trial, it may be a watershed moment for the usage of social media evidence.
The bottom line is that those who want to violate the law should think twice because anyone who has a mobile digital electronic device has the ability to capture the criminal act. Within seconds, people from around the world may become aware of the matter via an online post. Therefore, social media may have the ability to become a deterrent against crime.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Without social media, it is possible that this case may never have gone to trial. After the New York Times covered this matter last December, the story picked up steam. Subsequently, Anonymous allegedly hacked into the digital accounts of some of those who may have been involved or witnessed the activities surrounding the alleged criminal activity.
YouTube, Instagram, Twitter, and text messaging were utilized by those who either witnessed the incident or who may have been involved with the matter. The digital content that came to light shocked and sickened the public and may have helped convict the perpetrators of this crime.
According to ABC News, "[t]he contents of 13 cell phones were analyzed, which amounted to 396,270 text messages, 308,586 photos, 940 videos, 3,188 phone calls and 16,422 contacts." Absent the digital evidence via multipe social media platforms would there have been a guilty verdict? While witness testimony may be persuasive, photos and videos have the ability to become very powerful evidence that may trump eyewitness testimony. Even though this isn't the first case where social media may have affected the outcome of a trial, it may be a watershed moment for the usage of social media evidence.
The bottom line is that those who want to violate the law should think twice because anyone who has a mobile digital electronic device has the ability to capture the criminal act. Within seconds, people from around the world may become aware of the matter via an online post. Therefore, social media may have the ability to become a deterrent against crime.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, September 11, 2012
Twitter must produce Occupy Wall Street Tweets
Twitter has been ordered to turn over the public Tweets of Occupy Wall Street protestor Malcolm Harris. The ruling is not surprising since the Tweets were previously public and anyone with Internet access could view them. The Tweets are no longer available online; however, they have been saved on Twitter's servers. Twitter and Harris' attorney have been trying to quash the Manhattan district attorney's subpoena demanding the Tweets but have been unsuccessful.
On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.
On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.
While I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users.
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.
On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.
While I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users.
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, August 24, 2012
Gay Federal Employee Allegedly Fired For Facebook Like Sues
A former federal employee has filed a lawsuit alleging that he was fired because of a Facebook Like. This is reminiscent of another recent lawsuit where an employee alleges he was fired for Facebook Liking the page of his supervisor's political opponent.
If employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.
In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?
The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.
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.
If employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.
In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?
The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.
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.
Friday, August 17, 2012
Has Facebook created a legal duty to monitor for illegal activity?
Does Facebook have a legal duty to monitor for illegal activity on its website? Facebook is an international company with its headquarters in California. However, Facebook must comply with the laws of every jurisdiction where it operates.
In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.
A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?
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.
In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.
A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?
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.
Wednesday, August 8, 2012
Liking a Facebook Page May Be Constitutionally Protected Free Speech
Social Media has become a major free speech battleground around the world. For example, earlier this year Pakistan banned Twitter for a period of time because Twitter refused to delete tweets that were alleged to be blasphemy.
In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.
These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.
In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."
The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.
The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.
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.
In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.
These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.
In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."
The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.
The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.
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.
Friday, October 21, 2011
Missouri repeals social media ban aimed at online student teacher interaction
Missouri repealed its recently enacted student-teacher social media ban which prohibited students and teachers from interacting with each other online. I wrote about the law on August 2, 2011 and at the time stated:
"there is a tremendous lack of understanding regarding social media by elected officials across the country. Does Missouri have a law that bans teachers and students from being able to join the same Churches, Mosques, and Synagogues? Does Missouri have a law that bans teachers from interacting with students in activities outside of the school environment?...This new law is an over-reaction and will most likely soon be challenged and eventually overturned."
Missouri did the right thing in repealing the law because it not only infringed on First Amendment rights but it would also be very difficult if not impossible to enforce. When enacting new legislation lawmakers must understand exactly how the law works and how it may affect constitutional rights.
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.
"there is a tremendous lack of understanding regarding social media by elected officials across the country. Does Missouri have a law that bans teachers and students from being able to join the same Churches, Mosques, and Synagogues? Does Missouri have a law that bans teachers from interacting with students in activities outside of the school environment?...This new law is an over-reaction and will most likely soon be challenged and eventually overturned."
Missouri did the right thing in repealing the law because it not only infringed on First Amendment rights but it would also be very difficult if not impossible to enforce. When enacting new legislation lawmakers must understand exactly how the law works and how it may affect constitutional rights.
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.
Wednesday, October 6, 2010
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 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.
Tuesday, September 28, 2010
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.
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.
Thursday, September 2, 2010
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.
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.
Saturday, August 28, 2010
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.
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.
Tuesday, August 17, 2010
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.
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.
Sunday, August 8, 2010
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:
(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:
(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.
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;(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.(ii) Documentary filmmaking;
(iii) Noncommercial videos
(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(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
(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.
(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.
Sunday, July 18, 2010
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.
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.
Friday, July 9, 2010
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.
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.
Wednesday, June 30, 2010
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.
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.
Wednesday, June 16, 2010
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.
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.
Wednesday, June 2, 2010
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.
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.
Saturday, May 15, 2010
FINRA's Social Media Regulations
Recently, I have been counseling members of the securities industry about the new Financial Industry Regulatory Authority (FINRA) social media regulations. During a meeting last week, I was asked what type of interaction is acceptable between a registered securities employee and a Facebook friend who also happens to be a client of the securities industry professional. I gave the standard line that lawyers are taught to provide, "it depends." There is no bright line definition of what is acceptable interaction so this is a major dilemma for securities firms, their employees, their clients, and prospective clients.
The lines between business and personal activities in social media are becoming more blurred every day. In 1999, NASD (FINRA's predecssor) stated that if a registered representative participates in an Internet chat room he is subject to the same requirements as if he was making a personal presentation to a group of investors. This statement was codified in 2003 by NASD's Rule 2210 when NASD included in the definition of "public appearance" the "interactive electronic forum" or as most users call it a "chat room".
In January 2010, FINRA's Social Networking Task Force created a Regulatory Notice to provide securities firms guidance on business related social media usage. Even though the Regulatory Notice does not provide guidelines on securities employees' personal social media use, it is highly advisable for most firms to create a social media policy for employees' personal use. Creating a social media policy for non-business activities may be considered very intrusive. However, social media is the most intrusive and interactive technology currently in widespread use so it is imperative that employees understand that sensitive work matters should not be discussed on both business and personal social media accounts. No two firms have the same corporate culture so adopting the business or personal social media policy of another firm without consulting your legal, IT, human resources department, and a social media professional is a recipe for disaster.
To learn more about creating a business and/or a personal social media policy for your firm you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
The lines between business and personal activities in social media are becoming more blurred every day. In 1999, NASD (FINRA's predecssor) stated that if a registered representative participates in an Internet chat room he is subject to the same requirements as if he was making a personal presentation to a group of investors. This statement was codified in 2003 by NASD's Rule 2210 when NASD included in the definition of "public appearance" the "interactive electronic forum" or as most users call it a "chat room".
In January 2010, FINRA's Social Networking Task Force created a Regulatory Notice to provide securities firms guidance on business related social media usage. Even though the Regulatory Notice does not provide guidelines on securities employees' personal social media use, it is highly advisable for most firms to create a social media policy for employees' personal use. Creating a social media policy for non-business activities may be considered very intrusive. However, social media is the most intrusive and interactive technology currently in widespread use so it is imperative that employees understand that sensitive work matters should not be discussed on both business and personal social media accounts. No two firms have the same corporate culture so adopting the business or personal social media policy of another firm without consulting your legal, IT, human resources department, and a social media professional is a recipe for disaster.
To learn more about creating a business and/or a personal social media policy for your firm you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, April 29, 2010
The Social Media Privacy Protection Act
The Social Media Privacy Protection Act is coming. No such Act has yet been proposed but I predict this will be the name of the Act that regulates social media. The FTC is currently seeking comments on revising the Children's Online Privacy Protection Act (COPPA) to include social media. The U.S. Senate Committee on Commerce, Science, and Transportation held a hearing today examining how social media affects COPPA. Congress is first determining how it can best protect children's privacy in the social media age. The next logical step is to create legislation that will include the rest of their constituents.
On April 27, 2010, 4 U.S. Senators: Charles E. Schumer (D-NY), Michael Bennet (D-CO), Mark Begich (D-AK), and Al Franken (D-MN) publicly released a letter that they had sent to Facebook's CEO Mark Zukerberg regarding their concerns about Facebook's recent user changes. The letter urged Facebook to allow its users to have more personal control over the site's privacy settings, to change its third party data storage policy, and to simplify the instant personalization options.
I recommend that my clients set their Facebook privacy settings so that only their Facebook Friends are able to view their personal information. It is best to limit the amount of information you post and share because if your account is ever compromised by a hacker the information can easily be used to steal your identity. If you thought that the Internet Age was scary after watching Sandra Bullock's 1995 movie "The Net" the Social Media Age should terrify you.
The recent MIT Project Gaydar study proved that just by inserting data from a person's social media profile it is possible to determine a person's sexuality. I was surprised that so many people appeared shocked by this finding. If a researcher or marketer knows a Facebook user's personal habits and hobbies, friendships, employer/job, socio-economic status, marital/family status they have the ability to make a lot of predictions about a person. Profiling or forecasting is used by law enforcement, wall street, and meteorologists. The more data points you have the more accurate the model or prediction.
In the "old days," your mail carrier knew more about your business than even your neighbors. Then it was the credit card companies and credit bureaus who knew everything financially about you. However, nobody or entity, including the U.S. Government has the treasure trove of data that Facebook accumulates about its users. Most of these other entities spend a tremendous amount of time and resources collecting your data. What is amazing is that Facebook is able to obtain its data for free directly from its users. Not a bad concept, eh?
It appears that Facebook does not yet understand that its recent actions have angered enough people to prompt Congress to become extremely interested in the manner in which it utilizes and protects its users' personal information. Facebook's failure to acknowledge this is evident by the response that Facebook's spokesman Andrew Noyes and vice president of global communications and public policy Elliot Schrage have so far provided.
Social media users must be careful about what personal information they post on social media. In addition, social media users must be proactive in protecting their social media personal profile and companies must be aware of the legal liabilities that they may incur for mishandling their customer's personal information. To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
On April 27, 2010, 4 U.S. Senators: Charles E. Schumer (D-NY), Michael Bennet (D-CO), Mark Begich (D-AK), and Al Franken (D-MN) publicly released a letter that they had sent to Facebook's CEO Mark Zukerberg regarding their concerns about Facebook's recent user changes. The letter urged Facebook to allow its users to have more personal control over the site's privacy settings, to change its third party data storage policy, and to simplify the instant personalization options.
I recommend that my clients set their Facebook privacy settings so that only their Facebook Friends are able to view their personal information. It is best to limit the amount of information you post and share because if your account is ever compromised by a hacker the information can easily be used to steal your identity. If you thought that the Internet Age was scary after watching Sandra Bullock's 1995 movie "The Net" the Social Media Age should terrify you.
The recent MIT Project Gaydar study proved that just by inserting data from a person's social media profile it is possible to determine a person's sexuality. I was surprised that so many people appeared shocked by this finding. If a researcher or marketer knows a Facebook user's personal habits and hobbies, friendships, employer/job, socio-economic status, marital/family status they have the ability to make a lot of predictions about a person. Profiling or forecasting is used by law enforcement, wall street, and meteorologists. The more data points you have the more accurate the model or prediction.
In the "old days," your mail carrier knew more about your business than even your neighbors. Then it was the credit card companies and credit bureaus who knew everything financially about you. However, nobody or entity, including the U.S. Government has the treasure trove of data that Facebook accumulates about its users. Most of these other entities spend a tremendous amount of time and resources collecting your data. What is amazing is that Facebook is able to obtain its data for free directly from its users. Not a bad concept, eh?
It appears that Facebook does not yet understand that its recent actions have angered enough people to prompt Congress to become extremely interested in the manner in which it utilizes and protects its users' personal information. Facebook's failure to acknowledge this is evident by the response that Facebook's spokesman Andrew Noyes and vice president of global communications and public policy Elliot Schrage have so far provided.
Social media users must be careful about what personal information they post on social media. In addition, social media users must be proactive in protecting their social media personal profile and companies must be aware of the legal liabilities that they may incur for mishandling their customer's personal information. To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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