Facebook recently launced a new tool called Groups that enables users to create mini social networks within a Facebook user's list of friends. According to the Wall Street Journal, "Facebook’s CEO Mark Zuckerberg said the impetus for groups was to make communicating with your friends on Facebook more like talking with them in the real world."
Facebook Groups was created not to mimic real world communication but to better enable Facebook to monetize your personal data. Many Facebook users have hundreds of Facebook Friends. However, Facebook does not know what a user's true relationship is with each of its Facebook friends. A user's Facebook Friends may include: high school friends, college friends, graduate school friends, co-workers, family members, strangers, associates, significant others, ex-friends, ex-significant others, etc...
According to a recent PC Magazine article, a Facebook spokesperson stated "[w]e made the decision to allow Group members to add others to the Group in order to make the product simple, and because it resembles something we all understand: adding one of your contacts to an e-mail thread." An e-mail thread may be more analagous to unsolicited junk mail (snail or email) than a real group. In addition, opting-in instead of opting out would have made the product simple for users because opting out forces users to take steps that are not user friendly.
If Facebook wanted to make its new Groups feature mimic real world communication it would have enabled users to individually opt-into Groups instead of making users opt-out. Making users opt-out instead of opt-in has the potential to create some unintended legal issues for some of its users. For example, what if a boss or family member or friend reviews a Group page and found out you were a member of a Group that had some sort of stigma?
In my opinion, Facebook made groups opt-out instead of opt-in to better collect and then sell your personal data to marketers. Facebook is on a furious pace to monetize its users' data to demonstrate to prospective bidders for its future IPO Facebook's monetary potential. If Facebook cares about its users' privacy it will change its Group's feature to be opt-in instead of opt-out. When was the last time you had to opt-out of going to dinner with a real group of friends? To go out with a real group of friends you must opt-in. Therefore, I challenge Facebook to correct this major oversight to its new Group tool.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, October 9, 2010
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.
Friday, September 17, 2010
Protecting Your Social Media Profile Against Text Spam
On April 29, 2010, I stated why the Social Media Privacy Protection Act is needed. I reiterated my position again on July 25, 2010. I did not wake up thinking about privacy issues. However, when I logged into my Google account this morning, I received the message, "What would happen if you lost access to your Google Account tomorrow?" The screen listed my email address and requested my cell phone number in case I need to reset my password.
In my opinion, password resets via cell phone SMS is a ruse to obtain access to your cell phone number so the number may be used at a later date to perform mobile marketing. Social Media companies are trying to collect as much information about their users as possible because they are building a monetizable data bank. As the Brits may say, "brilliant."
Google may argue that a cell phone number is the easiest and most secure way for a consumer to obtain a password reset. I disagree. The best way to do this is via email and/or a personal security question. Google recently fired an employee for accessing the personal accounts of its users. Just think of all the possibilities when private companies (not the government-whole different conversation) have access to this type of personal information.
Social Media companies are trying to entice their users to turn over as much of their personal information as possible. Unfortunately, too many consumers are freely providing Social Media companies their information without a second thought. For example, there is no reason for any company to ask for or for anyone to list their religion on their social media profile.
When I recently tried assisting a friend of mine with obtaining a personal URL for his Facebook account it requested a cell phone number for confirmation. When I obtained my personal URL soon after consumers were allowed to do so I did not need to provide a cell phone number. Social Media companies want your cell phone number so they can monetize this information.
The bottom line is that people need to be careful about providing any data to third parties. Do you really want to be bombarded at some point in the future with spam text messages that you will have to pay for? Therefore, unless a company needs your cell phone number do not provide it.
To learn how to protect your Social Media Profile you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
In my opinion, password resets via cell phone SMS is a ruse to obtain access to your cell phone number so the number may be used at a later date to perform mobile marketing. Social Media companies are trying to collect as much information about their users as possible because they are building a monetizable data bank. As the Brits may say, "brilliant."
Google may argue that a cell phone number is the easiest and most secure way for a consumer to obtain a password reset. I disagree. The best way to do this is via email and/or a personal security question. Google recently fired an employee for accessing the personal accounts of its users. Just think of all the possibilities when private companies (not the government-whole different conversation) have access to this type of personal information.
Social Media companies are trying to entice their users to turn over as much of their personal information as possible. Unfortunately, too many consumers are freely providing Social Media companies their information without a second thought. For example, there is no reason for any company to ask for or for anyone to list their religion on their social media profile.
When I recently tried assisting a friend of mine with obtaining a personal URL for his Facebook account it requested a cell phone number for confirmation. When I obtained my personal URL soon after consumers were allowed to do so I did not need to provide a cell phone number. Social Media companies want your cell phone number so they can monetize this information.
The bottom line is that people need to be careful about providing any data to third parties. Do you really want to be bombarded at some point in the future with spam text messages that you will have to pay for? Therefore, unless a company needs your cell phone number do not provide it.
To learn how to protect your Social Media Profile you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, September 12, 2010
Corporate Counsel's IP Trademark, Copyright & Licensing Cousel Forum
On September 14th and September 15, ALM's Corporate Counsel will be hosting a seminar that will discuss current intellectual property issues. The conference's keynote speaker will be Marybeth Peters, Register of Copyrights. Intellectual Property practitioners from all over the country will be speaking and will be in attendance.
Some of the topics that will be discussed at the conference include: Protecting Your IP in a Digital Environment, Monetizing Your Copyright and Trademarks, Recent Online Litigation Developments, Structuring Licensing Programs, and IP Issues in Social Media Marketing.
Some of the organizations that will be represented at the event include: The New York Times, the Recording Industry Association of America, The Author's Guild, Gannett Co., the U.S. Copyright Office, News Corporation, Comcast Entertainment Group, Conde Nast, ESPN, ABC, and NBC Universal.
The Conference will be held at The Harvard Club of New York. For more information click here.
[Full Disclosure: Shear on Social Media Law is part of ALM's Law.com Blog Network]
Some of the topics that will be discussed at the conference include: Protecting Your IP in a Digital Environment, Monetizing Your Copyright and Trademarks, Recent Online Litigation Developments, Structuring Licensing Programs, and IP Issues in Social Media Marketing.
Some of the organizations that will be represented at the event include: The New York Times, the Recording Industry Association of America, The Author's Guild, Gannett Co., the U.S. Copyright Office, News Corporation, Comcast Entertainment Group, Conde Nast, ESPN, ABC, and NBC Universal.
The Conference will be held at The Harvard Club of New York. For more information click here.
[Full Disclosure: Shear on Social Media Law is part of ALM's Law.com Blog Network]
Saturday, September 11, 2010
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.
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.
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.
Monday, August 2, 2010
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.
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.
Sunday, July 25, 2010
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.
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.
Friday, July 23, 2010
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.
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.
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.
Subscribe to:
Posts (Atom)