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

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

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

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

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

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

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

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

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

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

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

Facebook is a Trademark Protection Hypocrite Part II

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

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

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

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

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

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

Facebook is a Trademark Protection Hypocrite

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

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

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

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

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

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

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

Social Plug-In Contracts and Show Me The Money

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

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

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

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

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

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

Library of Congress Announces New DMCA Rules Exemptions

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

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

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

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

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

(ii) Documentary filmmaking;
(iii) Noncommercial videos

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Social Media Privacy Protection Act Part II

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Social Media Defamation

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

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

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

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

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

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

Viacom vs. YouTube May Be a Victory For Copyright Owners

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

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

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

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

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

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

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

Supreme Court Issues Groundbreaking Social Media Law Case

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

On December 14, 2009, I blogged about this case and I opined that the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review all electronic communications that are sent via an employer owned account. My opinion was based on the premise that while using employer owned devices employees either know or should know that their employer may need to review the messages that have been sent via the electronic device for a work-related purpose.

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

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

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

Intellectual Property Law is Useless in the Social Media Age

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Social Media Sports Marketing and Branding

Traditional sports marketing and brand management is in transition. For years, the professional sports leagues have relied on radio and print newspapers to provide them free marketing. The leagues provided journalists open access to their games and in return sports writers would report on the games, the players, and the teams to their audience. This basic model worked for many years. When television became popular in the 1950's, the model was tweaked and the television networks started to pay handsomely for sports content. In the 1970's, Ted Turner once again tweaked the model via cable television.

Over the past several years, we have watched the beginning of the end of print media, a changing radio landscape and a transformation from watching television via cable to the Internet. This media transformation has changed the sports marketing and branding paradigm. Consumers have become extremely sophisticated and are tuning out traditional advertising. People do not want to be sold to. They want to engage in a conversation with a brand. Passion is the name of the game and the best medium to harness this passion is social media. Social media is not just the Internet. Social media is about interacting with a brand and feeling connected to it.

The top consumer cult brand is Apple. The unquestioned American sports cult brand is the NFL. Each of these organizations have spent years connecting with their followers. The NFL's cult brand has been forged by the "Greatest Game Ever Played," "The Ice Bowl," and players like the Baltimore Colts' Johnny Unitas and the Cleveland Browns' Jim Brown. Games and players come and go. However, the experiences that fans have with these events and the players is what keeps fans excited and interested in the NFL.

Social media is all about passion. When a Facebook user is excited or upset he posts to his Facebook wall. In response, the Facebook user's friends may engage in a conversation about the post. An excellent example of this interaction occurred on the Facebook page "Betty White to Host SNL (please?)!" Even though Betty White has been in the entertainment business for more than 60 years, she may end up being best remembered for how she became the host of an episode of Saturday Night Live.

Several months ago, a Betty White fan created a Facebook page requesting that Betty White host Saturday Night Live. The Facebook page's popularity grew to a point where Lorne Michaels, the creator of Saturday Night Live could not ignore it so he invited Betty White to host the show. NBC knew or should have known that the Betty White episode would have a built in audience that would enable them to sell the advertising for the episode at a premium. Betty White was hilarious on the show and it was a ratings success.

Brands need to learn how to engage with their customers. If companies understand how to properly utilize social media they will be able to better predict the success of their marketing campaigns. In addition, they will be able to fully leverage the value of their brands to others who want to be connected to them.

Unfortunately, too many companies think the answer to engaging social media users is to focus their strategy on posting on their Facebook wall, or tweeting about new product lines and sales, and building applications that capture a customer's private information. Congress is in the process of drafting new online privacy regulations that may limit or change how personal information is collected and utilized. Therefore, the current preferred method of obtaining a customer or a potential customer's data via an application when a customer visits a Facebook wall or clicks on a link may soon be obsolete.

In the Social Media Age, there is no substitute for interactive customer engagement. Building a cult following is achievable if your company is ready, willing, and able to create and follow a detailed strategy. To learn how to design and implement a successful social media sports marketing and branding campaign that will abide by the soon to be enacted Social Media Privacy Protection Act you may contact me at http://www.shearlaw.com/.

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