Accepting Guest Blog Posts

I have accepted a position that will not allow me to write in 2016. However, I want to continue to provide information on cyber, intellectual property (IP), social media, security, privacy, and technology law and policy to you all.  So…. I am accepting  submissions from guest bloggers!

Please send me your best cyber, IP and tech law and policy posts. Many of this blog’s followers are entrepreneurs, technophiles, tech novices, bloggers, social media user and those intrigued by tech, so please cater your posts to that audience. Please send posts to thedigitalcounselor@gmail.com. I will notify you if your post is selected.

Thank you for your submission, in advance, and more importantly, THANK YOU FOR READING!

I hope the readers find previous posts and any information others are able to provide in my absence helpful! And I look forward to returning in 2017!!

New gTLDs Causing Trouble for Twitter

Screen Shot 2015-07-15 at 10.07.30 AMYesterday, a website that looked exactly like Bloomberg posted “news” that there was a $31 billion buyout offer for Twitter. Ummm not true! The website, called http://www.bloomberg.market, featuring a new gTLD, was fake. And so was the report. The fake website was a near-identical replica of Bloomberg’s site, and even used Bloomberg reporter Stephen Morris’s byline. OpenOutcrier, a Twitter account that bills itself as a destination for “Real-time stock & option trading headlines, breaking news, rumors and strategy” was the first to post about the report, although Bloomberg employees were quick to point out it was fake.

Most discussions about new gTLDs causing problems for brand owners is preventative such as with the .SUCKS and .PORN domains. This incident is a good example of a new gTLD causing the damage brand owners are trying to prevent in those other cases. As a brand owner you should make sure to not only use these new gTLDs as a tool for branding but remain aware of the release of new gTLDs to proactively register relevant domains and/or monitor for infringement like this. There are a number of free monitoring tools like Google Alerts or Talkwalker that you can use to monitor use of your brand name.  And you can see which new gTLDs have launched and when so you can remain up to date on gTLDs that you should register from a branding perspective and/or from a brand protection perspective.

As a result of this false story, Twitter shares shot up, only to fall back down when Twitter corrected . It’s not clear who was behind the faux story. With all that’s going on with Twitter, including the CEO being replaced by co-founder Jack Dorsey earlier this month, this incident was believable.  This could have caused more damage to company finances, reputation, and consumer trust. Don’t let your brand be next! Fraudsters are very savvy as you can see.

Internet Updates June 2014

There is so much going on in the Internet space that I have compiled some of the most interesting happenings of June. They all link to more info. Please read, enjoy and let me know if you want me to expand on anything!

Are threats made on social media protected free speech, or potentially criminal actsThe U.S. Supreme Court has agreed to examine the constitutionality of a federal law making it a crime to transmit communications containing “any threat to injure the person of another.” In this case, the “threats” were in a series of Facebook postings.

Be careful what you post on Facebook, you might get a ticket for it… A woman in a Chicago suburb received a $50 ticket in the mail alleging that she had used a dog park without a permit. The ticket was based entirely on a Facebook posting that the woman had made, and the police immediately rescinded it, saying  that they do not monitor social media in search of potential lawbreakers.

It might be a crime to friend your boss if you live in Arkansas! Arkansas legislators are considering changing a 2013 law after Facebook informs them that the law may have inadvertently made it a crime for a boss and an employee to become Facebook friends.

Snapchat may have competition. According to the Los Angeles Times, Facebook prematurely released, then withdrew, a new mobile app called Slingshot that is intended to compete with Snapchat and permit users to send each other photo and video messages.

Is Twitter in trouble? Twitter’s leadership was thrown into disarray on June 12 after Ali Rowghani resigned suddenly as the company’s chief operating officer amid a dispute with Chief Executive Dick Costolo. Twitter’s stock has fallen about 42 percent this year as concerns have arisen that the company is not signing up enough new users.

Should you make social media rules for your marriage? More and more couples are sitting down with their lawyers before marriage to discuss a social media clause in their prenuptial agreement – covering what they can and cannot say or post about each other. These agreements appear to be enforceable in court if they are specific enough.

The CIA is on Twitter! The CIA has entered the realm of social media, setting up a Twitter presence and a Facebook account. There one can find, among other things, reflections on intelligence history and fun facts from the CIA World Factbook.

Can’t ask for personal social media account logins in Louisiana! 
On May 23, Louisiana became the latest state to enact a law prohibiting employers and public and private educational institutions from requiring applicants, employees, and students to provide access to their personal online accounts.

Every company would be well advised scrutinize their marketing practices on an ongoing basis to ensure that they do not inadvertently expose the company to risks under the Lanham Act. Two US Supreme Court cases decided this term could result in a substantial increase in the number of Lanham Act claims brought under that statute alleging “unfair competition” resulting from product labeling and marketing practices that are alleged to be false or misleading.

  • Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873, slip op. (March 25, 2014), in which the Supreme Court broadly construed the Lanham Act to permit lawsuits by all companies alleging injuries that were proximately caused by false or misleading advertising or promotion, even if the plaintiff was not a direct competitor of the defendant and suffered only “collateral damage.”
  • Pom Wonderful LLC v. Coca-Cola Co., No. 12–761, slip op.  (June 12, 2014), the Court’s second Lanham Act case of the term,  in which it eliminated a potential safe harbor from Lanham Act claims for companies in regulated industries who complied fully with applicable regulations regarding the labeling and marketing of their products.

Interested in being social anonymously? It is harder than you think… Recently a variety of “private” media platforms have emerged. For years, social media platforms have facilitated (or even, in many cases, required) us to use our real identities, with the aim of building friendships and networks in the online world. But these new social media apps (such as “Secret,” “Whisper,” “Yik Yak”) are designed specifically to enable users to share posts anonymously.

“Anonymous” doesn’t necessarily mean anonymous. Even if users are not required to provide any form of contact details to use an anonymous app, the app is very likely to collect certain information that will help identify the user (e.g., the unique digital ID of the user’s phone, location information, etc.). Therefore, it could be be fairly easy to trace a user if required (e.g., by subpoena/court order). Indeed Secret’s Terms of Service state, “We may share information about you … in response to a request for information if we believe disclosure is in accordance with any applicable law, regulation or legal process, or as otherwise required by any applicable law, regulation or legal process.”

For more updates visit: http://www.sociallyawareblog.com

A Victory for Twitter Users!

We all enjoy when our tweets become popular and travel the globe through retweets. Have you ever wondered what happens to your ownership rights after the tweet is retweeted. Does it now belong to the retweeter? Do you still have a protectable interest? Is it now public?

Well you now have an answer!

Daniel Morel, a Haitian-born photojournalist, was in Port-au-Prince when the big earthquake occurred in 2010. He was one of very few journalists on the ground and was able to take some really powerful pictures of the devastation.  He uploaded and disseminated his photos using his Twitter account and a third-party app called Twitpic. The Twitpic terms of service provide that owners of images retain copyright in them. Twitter’s, like Twitpic’s, terms of service allow users to “retain your rights to any content you… post on or through the services.” Although there were no copyright notices on the images, Morel’s twitter page did include the attributions “Morel” and “by photo morel” next to the images, as well as the copyright notice (c)2010 Twitpic, Inc. All Rights Reserved.”

A Twitter user in neighboring Dominican Republic re-tweeted them and they spread over the internet, without any credit being given to Morel, though the Twitter trail could have been followed if anyone was really interested in seeing who originally posted the pictures. Getty then disseminated them to news outlets including the Washington Post without any accreditation or attempt to find the photographer responsible for the breathtaking images.  Agence France-Presse also downloaded the images, but credited them to its own stringer and sold them to third parties (including Getty Images). AFP, with a certain amount of chutzpah, sought a declaration that it had not infringed Morel’s copyright; he counterclaimed: Agence France Presse v Morel, US Dist LEXIS 5636.

Morel later got credit for his work, winning two World Press Photo awards. The district court in Manhattan found for Morel with respect to his claims of direct infringement. AFP could not establish that it was a third-party beneficiary of Morel’s agreement with Twitpic or that a sub-licence was somehow granted through retweeting, given the clarity of the Twitpic terms of service, which stated that retransmission of images merely granted a licence to use someone else’s images on Twitpic.com or an affiliated site. The judge did think, however, that damages should be limited to a figure based on the number of works infringed, not the number of infringements (which would be much larger, given the number of retweets involved). Issues related to Getty’s knowledge and intent, wilful infringement by AFP and Getty, and contributory or vicarious liability were left for another day, as they turned on questions of fact which could not be decided summarily.

The copyright law governing this case is pretty clear. The person who takes the photo has the copyright and anyone making a commercial use, even a derivative use, of the image is liable for copyright infringement. Any other decision would have severely cripple copyrights and discouraged the use of social media to disseminate work. This curtailment would severely limit innovation because artists and innovators would not have this means of advertising and might slow innovation because of renewed barriers to entry and access. Merely Tweeting your picture does not allow others to use it for commercial gain. The terms of service on sites like Facebook and Twitter allow for their use, they do not provide an opportunity for third parties to capitalize on the works of users.

I would still advise photographers, poets, writers, and anyone posting material they want protected, to include a copyright notice in their bios and each individual photograph or work, if possible. 

Censorship or Prevention? University Social Media Policies for Athletes

The University of Michigan athletic department has “formalized its social media practices,” following a “national trend of colleges tightening their grip on student athletes’ social media practices,” according to Kellie Woodhouse of ANNARBOR.com.

In the past year, two University of Michigan football players earned their team secondary NCAA violations by inadvertently tweeting at a recruit; a third-string Ohio State quarterback became infamous when he tweeted that classes are “pointless;” and a top-rated recruit lost his chance to play with the Wolverines after he authored sexually and racially charged tweets.

The Univ. of Michigan policy is straightforward, advising students not to post when they’re emotional, not to use offensive language or slurs and not to tweet during class. If athletes violate the policy they can be reprimanded or, worse, face suspension.

Some colleges go much further than Michigan, forcing athletes to allow school officials access to their private accounts, banning players from using a long list of words on Twitter (such as University of Kentucky), or forbidding the students from using Twitter altogether. Many schools have hired third-party companies to monitor athletes’ posts around the clock.

Read the current agreement: University of Michigan social media agreement for athletes.pdf

Read the guidelines: University of Michigan social media guidelines for athletes.pdf

Are universities crossing the line?

These actions being taken by universities have already begun to see kick back by state legislatures such as California and Delaware. Social media is a new forum for speech that everyone is struggling to understand how to control. Everyone seeking to limit the reach and use of social media need to remember that social media is an avenue for protected speech. Users must also remember they will be held accountable for their actions and opinions. It seems universities have taken it upon themselves to protect their investment and make sure that athletes are aware of the power of their words.

So the question is, “Is it proper for universities to limit the speech of athletes by putting parameters on their social media use?”

This is an over-excerise of authority and I think universities will continue to see increasing backlash for these kinds of activities. Athletes voicing their opinions via social media is protected speech under the first amendment and should be protected accordingly. Therefore, athletes should have the right to voice opinions as they see fit but they need to be prepared to deal with the consequences that follow. I do think its a concern that athletes and students alike are posting recklessly. However, universities should invest their resources into training athletes about appropriate social media use as opposed to instituting rigid policies.

Although universities are not bound by the National Labor Relations Act as it relates to their athletes they should use the National Labor Relations Board‘s guidelines and rulings as guidance when adopting a social media policy.

A Lesson for Students

Students should take a lesson from these policies. Your social media use matters and can be the difference between success and failure. Not only is it important to athletes who find themselves in the public eye but to the job or internship-seeker who will be throughly searched online. Although you should retain the right to post whatever you want, make sure you are careful with what you post and the privacy settings you use. Your online reputation always proceeds you make sure you put your best foot forward.

Who Owns Your Profile?: Be Careful How & Where You Use Social Media

Companies claiming ownership over an employee’s social media has become a common occurrence as the value is social media rises. Employees build the goodwill of their social media by promoting themselves and many time in promoting themselves, promoting their position and company. When an employee chooses to use their social media to focus on their work within a company, the work their company does, the effect of the work of their company, industry trends as the relate to their company or position, etc. they run the risk of their company viewing their social media as a valuable tool in their marketing and PR  arsenal. This phenomenon has become common in the Twittersphere and has been litigated in cases such as PhoneDog, LLC v. Kravitz (which is still being litigated). One social media forum that has surprisingly entered this battle in LinkedIn.  These issues are why employees need to be-careful what they post and companies need to have clear social media policies.

A recent summary judgment ruling issued out of the Eastern District of Pennsylvania, Eagle v. Morgan, et al., CIV-No. 11-4303, 2012 U.S. Dist. LEXIS 143614 (E.D. Pa. Oct. 4, 2012), highlights the need for employers to draft clear social media policies. Plaintiff Dr. Eagle was president of  Edcomm (defendant), a banking education company. She created a LinkedIn account and used that account to promote Edcomm’s banking education services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships.  Edcomm claimed that it had an unwritten informal policy of “owning” the LinkedIn accounts of its former employees after they left the company.  Dr. Eagle was terminated and denied access to her LinkedIn account by Edcomm, which had accessed her account, changed her password and altered her LinkedIn profile to display the company’s new president’s name and photograph while retaining some elements of Dr. Eagle’s profile. Dr. Eagle was able to regain control of her LinkedIn account but sued Edcomm and its employees, alleging, among other things, violations of the Computer Fraud and Abuse Act and the Lanham Act, and invasion of privacy by misappropriation of her identity.

On October 4, 2012, the district court granted Edcomm’s motion for summary judgment to dismiss Dr. Eagle’s federal claims.  The court decided that a reasonable jury could not find that Dr. Eagle had suffered a “legally cognizable loss or damage in the brief period in which her LinkedIn Account was accessed and controlled by Edcomm,” the district dismissed her CFAA claim.  The district court concluded that Dr. Eagle’s claim of lost business opportunities and damage to her reputation were “speculative” at best and “not compensable under the CFAA,” and that even if types of damages were recoverable, she failed to present any evidence to quantify these damages.  The district court also dismissed Dr. Eagle’s claims under the Lanham Act, finding that she had failed to produce any evidence of a likelihood of confusion to the public by switching her name and photo with that of her successor. The district court did, however, retain jurisdiction over Dr. Eagle’s remaining state law claims as well as Edcomm’s counterclaims (a conversion claim over a laptop and a misappropriation claim that asserts that Edcomm was the rightful owner of the LinkedIn account).

Although this case does not yet provide a clear understanding of an employer’s rights and reach in terms of social media, it is clear that both employers and employees must be aware of their actions.

Employers
draft a social media policy that clearly delineates your stance make sure to pay close attention to the National Labor Relations Act, the decisions coming from the National Labor Relations Board and all relevant state and federal laws.

Employees 1) be careful about the extent to which you promote the work of your company, 2) know the difference between your personal social media and company social media, 3) be careful of where you use social media and what computer you use when posting, and 4) make sure you know your company’s social media policy.