How Do You Solve A Problem Like Maria (Juror Facebooking)?

I was invited to speak at the University of Baltimore's Lunch Time Law Series on February 22, 2010 to discuss entertainment and social media law. The Lunch Time Law Series is a great program that invites members of the legal community to discuss current trends in the law.

During the program, the State v. Dixon case was brought up. I previously blogged about this case on December 30,2009, and on January 15, 2010. In this case, five jurors communicated with each other outside of the courtroom via Facebook. The defense team found out about this after a verdict had been entered but before sentencing. Whether this activity constituted juror misconduct enough to warrant Dixon a new trial was never decided because a settlement was reached. Therefore, the Maryland legal community is still trying to figure out how best to avoid this problem in the future.

In my opinion, the temptation to access the Internet and social media sites is too great. Over the past several years, more and more people are ditching their landlines for smartphones, which allow quick and easy access to the Internet. Therefore, the courts have to put rules in place to safeguard the integrity of the jury system.

There are several different ways to do this. The first is to sequester all jurors, which frankly is impractical for many reasons, including, cost, and inconvenience.

The second possible solution would be to require prospective jurors to list all of their social media accounts on the juror questionnaire, including for example, Twitter name and password, and Facebook userid and password. This would enable court staff and the legal parties to not only screen for juror bias, but also to ensure that the impaneled jurors are not discussing the case in violation of court admonishments. In my opinion, this would intrude on a prospective juror’s right to privacy. The U.S. Constitution does not expressly protect one’s right to privacy. However, I believe it is inherent and forcing people to turn over this information may make people more inclined than they already are to try to avoid jury duty.

A third option, and the one that I believe is most viable is to require jurors sign a form stating that they agree not to discuss their case in any medium, including social media while they are impaneled. The form would include possible legal penalties if they disobey the directive.

On September 10, 2009, I blogged about how the San Francisco Court System is handling this issue.The U.S. Federal Courts recently weighed in on this problem and their response was to put forth a new model set of jury instructions: http://www.uscourts.gov/newsroom/2010/DIR10-018.pdf

Suggested jury instructions and admonishments for disobeying the rules are not enough. Real consequences are needed to take away the temptation to surf, post, blog, podcast, etc...There are no easy answers to "solving a problem like Maria (Juror Facebook)." However, a 21st century solution that addresses these issues and anticipates future challenges is needed. 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.

Social Media Engagement Product Placement Contracts

Social media rights in professional sports is going to soon become one of the biggest revenue generating streams outside of a professional player's contract. It may take several years for this prediction to pan out but I guarantee that this will occur in the near future.

There are only a handful of professional athletes who are able to obtain major endorsement deals. The traditional form of endorsement deals where an athlete such as Tiger Woods is seen utilizing or standing next to a product is going to significantly change in the near future. Since the Tiger Woods scandal, companies are now going to be extremely careful about putting all of their eggs in one basket no matter how successful an athlete is in their chosen profession. In the Social Media Age an athlete's image can drastically change with one posted youtube video. Since the corporate world is generally risk averse, many companies will soon realize that a new endorsement paradigm will need to be created.

Traditional print, television, and radio advertising is dying a slow death. Internet banner ads and the pay per click model is also in transition. The wave of the future is what I would like to call "Engagement Product Placement." Engagement Product Placement occurs when a paid endorser such as a professional athlete is hired to engage in a conversation with his or her Facebook Fans, Twitter Followers, or other social media connections about a product or service. Chad Ochocinco, a wide receiver for the Cincinnati Bengals, has more than 186,000 Facebook Fans and almost 750,000 Twitter Followers. Given Chad Ochocinco's popularity just imagine the opportunities available.

The companies who hire paid endorsers and the attorneys for paid endorsers must be fully versed in the Federal Trade Commission's new guidelines before negotiating Engagement Product Placement Contracts. Paid endorsers need to hire attorneys who understand the technology and full power of social media to account for the permutations that exist in this type of contract.

In the Social Media Age attorneys need to find creative ways to address all of the business and legal issues that accompany social media usage. 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.

Are You Willing To Pay For Social Media Content?

Due to the popularity of the original Napster and other early file sharing services, a large segment of the population believes it should not have to pay for the rights to digitally download music, movies, or other forms of Internet accessible entertainment. The Recording Industry Association of America has led the fight to stop the wholesale theft of intellectual property rights from its members. According to the RIAA's website, global music piracy causes more than $12.5 billion dollars in economic losses every year and the loss of more than 71,000 jobs.

Love or hate Apple, the company created an easy to use device, the iPod and set an unofficial price point of $.99 for each entertainment segment that is downloaded. In 2007, Radiohead provided fans the opportunity to pay whatever a fan wanted for the right to download their songs. Recently, Linkin Park was a driving force behind another pay what you want effort for non-profit Music For Relief that supports the Haiti relief effort. This business model may work in some cases, but the free rider dilema where too many people don't want to pay a fair price for a product or service is still a challenge that social media content providers must confront.

Amazon recently tried to replicate Apple's business model and industry position in the book business with their price point of $9.99 per Kindle download. However, major publishing house, Macmillian has refused to accept Amazon's price point and a legal dispute may be in the works.

As an active user of social media, I am fully aware of the cost of content creation and usage. Most social media websites are financially supported by advertising. Some have paywalls that offer a teaser before requiring a user to pay and others are fully subscription based. In the pornography industry, there are group subscriptions where belonging to one site automatically enables you to access other sites with your subscription or provides a reduced rate for membership.

The newspaper industry is on life support and it appears that Senator Cardin's proposal to allow newspapers to become non-profits has not been embraced by the marketplace. In contrast, Rupert Murdoch has been preaching about charging for his newspaper's content. As a Wall Street Journal subscriber, I believe the paper is one of only a couple of news organizations in the world that offers content that its users are willing to pay a subscription premium for. However, if I was offered a flat fee to access premium content for 25 of my most visited social media websites, I may be willing to pay for it if it was priced correctly. This subscription model would be based on the way cable companies offer premium channels on top of their basic packages.

There may be antitrust issues if a group of the most popular news organizations/social media content providers formed an entity and began offering their content in a pooled subscription. The Sports Broadcasting Act enables professional and collegiate sports leagues to package and sell pooled broadcasting rights. Even though member teams/schools are individual entities, Congress has carved out an exemption for this industry.

Why can't Congress carve out the same type of exemption for news organizations and/or social media and/or entertainment entities that would enable them to pool their resources? If professional sports leagues and NCAA member schools enjoy this type of special exemption why can't the news and/or the social media/entertainment industry also receive a special exemption under the law?

The bottom line is that content creation is not free and imaginative business methods must be utilized that may require new laws or a rethinking of some of our current laws. I believe now is the time for the business, legal, and political community to come together to draft a plan that accounts for this change in how people view, price, and protect intellectual property. To learn more about these issues you may contact me www.shearlaw.com

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

The Legal Definition of a Twitter Follower

Twitter has become one of the most popular social media websites. In 2009, there were several highly publicized lawsuits that were based on what people have tweeted (communicated) through twitter. Until recently, to find out what has been tweeted by someone you needed to "follow" someone's twitter feed. However, search engines Google and Bing now incorporate twitter feeds in their search engine results. For those who are not familiar with Twitter, it is a form of communication limited to 140 characters and a twitter feed is analogous to the the old stock tickers on wall street.

In order to keep abreast of the information posted by a Twitter account holder another Twitter account holder needs to become a "follower" of the account holder he or she wants to follow. Becoming a "follower" of another's twitter feed only means that you now have the ability read that person's tweets. Unlike Facebook in which someone has to be accepted as a "friend" before being able to essentially follow that person's posts, Twitter does not have that same restriction.A Twitter account holder has the ability to delete unwanted followers or to protect his/her tweets from non-followers.

According to Merriam-Webster's Online Dictionary, the word "follower" is a noun and its top two definitions are:

1 a: one in the service of another : retainer

b: one that follows the opinions or teachings of another
c: one that imitates another
2 archaic : one that chases

I tried to unsuccessfully find a legal definition for "Twitter Follower" on Merriam-Webster's Online Dictionary, Black's Law Dictionary and several other online reference sources. The reason for creating a legal definition of a "Twitter Follower" is that the U.S. legal system may one day need the definition to determine possible attorney or witness conflicts of interest, alleged juror misconduct, jury tampering or connections between those involved in a legal matter.

Therefore, I propose the following legal definition for Twitter Follower:

"A person or entity who has a Twitter account who has gained access or the ability to follow or read another Twitter account holder's tweets."

Becoming a Twitter Follower of another Twitter account holder does not mean that the "Follower" or "Followee" have ever met or have any type of personal or professional relationship. For example, entertainer Ashton Kutcher has more than 4,430,000 twitter followers and he is following at least 300 other Twitter accounts. I am willing to guarantee that Mr. Kutcher does not know 99.99% of those who are following him.

Even though a person is a "Twitter Follower" of another or is a "Twitter Followee" there may not be any real connection between the Twitter account owners. To learn more about this issue you may contact me at www.shearlaw.com

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

The Facebook Five and Alleged Juror Misconduct in Baltimore Mayor's Trial

The recently concluded trial of Baltimore's soon to be former Mayor Dixon ended when Mayor Dixon was found guilty of embezzlement for stealing gift cards from the poor. Numerous times throughout the trial and prior to jury deliberations, Hon. Dennis M. Sweeney, who presided over Ms. Dixon's trial, admonished the jury not to discuss the case with anyone. This jury instruction is standard throughout the country. After Ms. Dixon was found guilty of embezzlement, but before she was sentenced, it came to the attention of her legal team that 5 of the 12 members of the jury (the "Facebook Five") became "Facebook Friends" and started communicating with each other on Facebook.

Mayor Dixon filed a motion to set aside the verdict and one of her arguments was that the Facebook Five's Facebook activities constituted jury misconduct under Maryland law. This argument became moot when the Mayor agreed to withdraw it after a plea agreement was entered that resolved all of the Mayor's outstanding legal issues.

The State of Maryland like most states does not have an official social media policy relating to court room behavior for judges, attorneys, witnesses, or members of the jury. According to my research, there are no reported cases in the country that have had to determine whether Facebook Friending and/or Facebook posting about a case during a trial by a juror is juror misconduct. Maryland has ruled that juror Internet research during deliberations is juror misconduct. In Wardlaw v. State of Maryland, 971 A.2d 331 (2009),the court reversed an assault conviction after a deliberating juror used the Internet to perform research about the case and notified other deliberating jurors about the research.

If the Facebook Five discussed substantive issues about the case outside of the courtroom in any medium, including Facebook, there is no doubt there was juror misconduct and the conviction would most likely have been overturned. However, if the Facebook Five were just Facebook friending each other and not discussing substantive issues of the case, this issue is just a red herring that was deftly used by the Mayor's legal team to secure her Alford plea and enable her to keep her $83,000 annual pension and enable her to eventually run for public office again in the future.

Courts throughout the country should expand upon the jury instruction that prohibits jurors from talking about the case or performing one's own independent research to specifically include prohibiting jurors from discussing anything pertaining to the case on social media. By acknowledging on a Facebook wall that you are on a jury for anyone, let alone someone as high profile as the mayor of a major metropolis, invites all of your friends to comment and possibly influence your opinion as to the guilt or innocence of a defendant, something clearly prohibited by current jury instructions.

Mayor Dixon's high profile case demonstrates the need for state bar associations throughout the country to work in conjunction with their respective state legislatures and judiciaries to create social media policies that address the reality of today's technology and citizens' social media habits. Therefore, I urge state bar association presidents throughout the country to create social media law committees to work with their legislators and members of the judiciary to craft uniform court room social media policies. Continuing to ignore the realities of the Internet/Social Media Age is a recipe for injustice. 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.

The Legal Definition of a Facebook Friend

According to Merriam-Webster's online dictionary, the top two definitions of the word "friend" are:

1 a: one attached to another by affection or esteem b: acquaintance
2 a: one that is not hostile b: one that is of the same nation, party, or group.

The New Oxford Dictionary's 2009 word of the year was "unfriend." The New Oxford Dictionary recognizes "unfriend" as a verb, and defines "unfriend" to mean "to remove someone as a 'friend' on a social networking site such as Facebook."

Therefore, I would deduce that the New Oxford Dictionary would define the verb "friend" to mean, "to add someone as a 'friend' on a social networking site such as Facebook." When I looked for the definition of a "Facebook Friend" on Facebook, I could not find a definition. As far as I could determine, it is not defined on Facebook. When I looked on other online dictionaries, Black's Law Dictionary, and other online legal dictionaries, I could not find a legal definition for "Facebook Friend."

I would like to create a legal definition for a "Facebook Friend." A "Facebook Friend" is someone whom is added to your network on a social media website. A "Facebook Friend" may or may not be someone with whom you have ever met or interacted with other than requesting that he or she be added to your network or that you confirmed that he or she be added to your network.

Some "Facebook Friends" are close friends with whom you keep in touch with on a regular basis. Some "Facebook Friends" are people with whom you have not spoken with for 10-20 years, while others may only be "Facebook Friends" of "Facebook Friends." Some people are "Facebook Friends" with movie stars and other people deemed famous only because a "Friend Request" was sent and accepted.

If a "Friend Request" is accepted and two people are "Facebook Friends" that does not mean that these two people are actual friends or have any contact other than an acceptance of a "Friend Request." A Facebook user has the ability through his or her privacy controls to limit what some "Facebook Friends" are able to view about them. For example, some "Facebook Friends" are able to view personal information about their "Facebook Friends" while others are not.

The reason for creating a legal definition of a "Facebook Friend" is that the U.S. legal system may one day need to create a definition to determine possible attorney or witness conflicts of interest, or jury tampering.

The bottom line is that just because two people are "Facebook Friends" does not mean that either person actually knows each other. In other words, "Facebook Friending" may be just the online equivalent of handing out your business card to a complete stranger. To learn more about this issue you may contact me at www.shearlaw.com

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

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

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

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

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

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

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

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

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

Social Media and the Sean Goldman Kidnapping and Custody Case

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

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

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

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

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

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