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Friends With Benefits (How Privacy Law Evolves for Social Media)

A few weeks ago I examined how copyright law — like most legal subjects dealing with technology — is lagging behind the fast-moving and disruptive changes wrought by social media to old legal rules for determining rights to Internet content. Part of my critique was that in deciding ownership of user-generated content (UGC), courts have not yet evaluated the difference between posting content “in the clear” and restricting content to “friends” or some other defined class far smaller than the entire Internet community.


Things may at last be getting a bit more settled. A New Jersey federal court ruled last Tuesday that non-public Facebook wall posts are covered by the federal Stored Communications Act (18 U.S.C. §§ 2701-12). The SCA, part of the broader Electronic Communications Privacy Act (18 U.S.C. §§ 2510 et seq.) that addresses both “the privacy expectations of citizens and the legitimate needs of law enforcement,” protects confidentiality of the contents of “electronic communication services,” providing criminal penalties and a civil remedy for unauthorized access. It’s a decades-old 1986 law that was enacted well before the commercial Internet and either email or social media had become ubiquitous. Yet by interpreting the statute, in light of its purpose, to apply to new technologies, District Judge William J. Martini has done Internet users, and common sense, a great service.

Plaintiff Deborah Ehling, a registered nurse, paramedic and president of her local EMT union — apparently a thorn in the side of her hospital employer for pursuing EPA and labor complaints as well — posted a comment to her Facebook wall implying that the paramedics who arrived on the scene of a shooting at the D.C. Holocaust museum should have let the shooter die. Unbeknownst to Ehling, a co-worker with whom she was Facebook friends had been taking screenshots of her profile page and sending them to a manager at Ehling’s hospital.

Ehling was temporarily suspended with pay and received a memo stating that the hospital was concerned that her comment reflected a deliberate disregard for patient safety. After an unsuccessful NLRB complaint based on labor law, Ehling’s federal lawsuit alleged that the hospital had violated the SCA by improperly accessing her Facebook wall post about the museum shooting, contending that her Facebook wall posts were covered by the law because she selected privacy settings limiting access to her Facebook page to her Facebook friends.

Judge Martini concluded that the SCA indeed applies to Facebook wall posts when a user has limited his or her privacy settings. He noted that “Facebook has customizable privacy settings that allow users to restrict access to their Facebook content. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.” Therefore, because the plaintiff selected privacy settings that limited access to her Facebook wall content only to friends and “did not add any MONOC [hospital] managers as Facebook friends,” she met the criteria for SCA-covered private communications.

Facebook wall posts that are configured to be private are, by definition, not accessible to the general public. The touchstone of the Electronic Communications Privacy Act is that it protects private information. The language of the statute makes clear that the statute’s purpose is to protect information that the communicator took steps to keep private. See 18 U.S.C. § 2511(2)(g)(i) (there is no protection for information that is “configured [to be] readily accessible to the general public”). [The] SCA confirms that information is protectable as long as the communicator actively restricts the public from accessing the information.

That’s a bold move by a jurist sensitive to the constraints on Congress, especially one as polarized as we have in America today. It reflects a willingness to adapt the law to changing technology by application of the basic principles and purposes of legislation, even if the statutory framework is old and its language somewhat archaic. As Judge Martini observed with a bit of consternation, “Despite the rapid evolution of computer and networking technology since the SCA’s adoption, its language has remained surprisingly static.” Thus, the “task of adapting the Act’s language to modern technology has fallen largely upon the courts.”

Continue reading Friends With Benefits (How Privacy Law Evolves for Social Media)

When World Views Collide: Social Media And the SEC

Yesterday the U.S. Securities & Exchange Commission did something routine. It issued a so-called “Wells-notice” against a company, charging the firm preliminarily with releasing confidential financial information to a select portion of the market, instead of publicly to all investors as required by Reg FD (“fair disclosure”). What is remarkable, and potentially troubling, is that the basis for the charge was a short social media message by Netflix CEO Reed Hastings, reposted on the company’s public Facebook page.

As Law360 explained:

Netflix Inc. and its CEO Reed Hastings could face action by the SEC over Hastings’ July post revealing that Netflix members had watched more than one billion hours that month, the online video service said in a regulatory filing Thursday. Netflix and Hastings received a Wells notice on Wednesday that said the company could face either a cease-and-desist or civil injunctive suit for fair-disclosure violations allegedly prompted by the posting on the social networking site, according to an SEC filing by Netflix.

The juxaposition of a good-intentioned securities regulation and the disruptive impact of new technology could not be clearer. In his post, Hastings congratulated the Netflix team for a job well done in early July, noting the one billion hours of video delivered to subscribers the previous month. The message was just 43 words. In the usual social media fashion, the post was forwarded by his followers. Bloggers picked up on it. Media reports cited it.

So what’s the deal? Technically, Netflix had not filed an “8K” update with that data at the SEC nor issued a traditional press release. But the company had revealed the 1B streaming hours in its public blog well before the CEO’s Facebook post. And in 2008, the SEC became the first federal agency to recognize the growing communications functions of blogs by issuing landmark guidance saying that corporate use of blogs for release of material financial information would satisfy Reg FD.

Reed Hastings Facebook page

In this context, the action against Hastings seems to make little sense. Even if the prior blog post had not disclosed the 1B figure adequately, Hastings’ post was open to more than 200,000 followers of his Facebook page, could be “subscribed” by anyone (“friends” or not) and was widely and immediately disseminated, both in social and traditional media. Had Hastings done this via a Twitter DM (direct message) or a private Facebook message to one or more individual friends, that would be completely different. But his post was public and thoroughly publicized.

That’s the precise purpose of Reg FD. But the SEC’s Wells notice illustrates that even government agencies that “get it” technically are often trapped in outmoded world views. It’s one thing for a public company CEO to post messages about financial performance on financial chat rooms and lists, under a pseudonym, to pump up trading volume artificially. It’s quite another for bureaucrats to decide that unless one uses the obsolescent technology of the past, public disclosures are inadequate. Would the SEC also suggest that a webinar, rather than telephonic conference call, is insufficient under Reg FD when announcing earnings guidance because not all investors have broadband Web access? That is hardly a sensible result.

We’ve written a lot in this blog about social media policies and how to reduce enterprise legal exposure. The irony of the Netflix case is that a company and executive who seem to have had a valid policy and followed the government’s own guidelines for use of social media has been targeted in a possible enforcement action nonetheless. That raises the spectre, which numerous commentators noted in connection with more a recent SEC alert on social media usage by investment advisors, that vague agency guidelines may lead to policy making by criminal complaint, rather than rules of general applicability. If that is the case with regard to blogs and Facebook as mechanisms for Reg FD compliant disclosures, there’s an equally great risk that these new modes of communication and interaction will be rendered impotent for corporate purposes due to the unknown scope of potential SEC exposure. That’s a bad result which everyone should hope we do not reach.

 Originally written for and reposted with permission of my law firm’s Information Intersection blog.


Federal Courts Meet Social Media Challenge

Well, it took a little bit of time, but the Administrative Office of the U.S. Courts has issued revised jury instructions, recommended for all federal cases, updated for today’s social media age. It’s “old wine in new bottles” — i.e., traditional rules adapted to new social networking communications — which illustrates that some things really should not (and do not) change at all where social media are concerned.

Federal Court Officials Issue Guidance on Jury Use of Blackberries, iPhones, Twitter, LinkedIn Etc. [TechLaw].

You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

The Law of Social Media (Part II)

[Part I of this series of essays can be found at this permalink].

2. Who Owns User-Generated Content?

Who owns user-generated content (UGC) posted to social media sites?  This is but one of the many vexing issues presented by the emerging law of social media, albeit one of great interest to users, corporate subscribers and social networking providers alike. After all, if possession is 9/10 of the law, then the natural, lay reaction to the question of who owns social media UGC is “the Web site, of course.”

That’s not exactly correct, however. One must  differentiate among the various forms of intellectual property (IP) law potentially applicable here.  Copyright, a matter exclusively of federal law, is available for original expressions (with or without registration), but is always subject to “fair use.”  Trademarks and their service mark complements are available for unique names, phrases and logos associated with commercial products and services, but are limited to narrow classes of expression and ordinarily — unlike copyright — must be expressly claimed.  Finally, patents are available for inventions (products, processes and methods), and give the patent holder (a/k/a patentee) the power to prevent anyone else from using the protected invention, but only arise when a patent is officially issued by the Patent & Trademark Office (PTO).

(a)  Social Media and IP Law. Each of these bodies of law, and the respective rights and obligations they create, has a different impact on social media generally.  For instance, Twitter owns a trademark on the company’s name, but was denied registration of a trademark on “Tweet.”  And in a provocative change last February, one eliciting a firestorm of user criticism, Facebook modified its terms of service (ToS) to grant the site a perpetual license on UGC even after a subscriber terminates his/her membership and removes photos and other UGC from their page. These two recent examples illustrate not only that IP law in part depends on the eye of the beholder, but more importantly that even within the social media space, there is no present consensus on just what is protected, what is public domain and what is somewhere in between.

Let’s start with the basics, then.  Copyright cannot be claimed on information, only on expressions.  So the information in a database or software application cannot be copyrighted, but the organization of a database and the actual code (whether in a scripting language or machine code) for a program are considered expressions subject to copyright.  One would not, for instance, violate Microsoft’s copyrights by designing a word processing program that replicated functionalities of MS Word, but copying of the underlying code would be unlawful. (Don’t take this too literally, however, because the issue of software patents, including those granted to Microsoft — one of present controversy in the US — could prevent another coder from achieving the same functionality under the patent law doctrine of “equivalents,” whether or not code was actually purloined.)

Unless, that is, the copying were protected by the so-called fair use doctrine, codified at 17 U.S.C. § 107.  This exception allows use of some, but not all, of an original work by another (with or without attribution), and is the basic reason why bloggers who quote portions of other posts are acting lawfully.  On the other hand, lifting the entire portion of any article, whether blogged or on a traditional media site, is typically illegal without the consent (i.e., license) of the copyright holder. Yet again, if the expression itself is already in the public domain, then courts will not uphold a copyright claim, concluding either that the author “impliedly” licensed the content, abandoned any copyright in the expression, or that the material is not copyrightable in the first instance because not original.

Putting all these basic principles together yields precisely the answer posed for social media legal questions generally in Part I of this series — “it depends.”  If a blogger structures his site with a full Creative Commons license, then nothing posted is subject to copyright because he has abandoned such a claim.  If a Facebook user posts photographs to his or her Facebook page, and makes them available to friends, a copyright claim likely would not lie against those friends if they used the photos without permission.  But, as we shall see below, these are the easy situations in which application of IP principles is (relatively) clear.

(b) Are Tweets Copyrighted? This was the question, first posed in the blogosphere by Mark Cuban in May 2009 (“Are Tweets Copyrighted?“), addressed in part in an earlier post.  To summarize, a Tweet, like any other expression, can be copyrighted if original, not public domain and not impliedly licensed.  But neither Mark nor anyone else (as far as this author knows) has addressed whether a Tweet, at 140 characters, is inherently too short, i.e., too superficial, to be deemed an original expression for purposes of copyright.  Compare, for instance, Pat Riley’s famous trademark in the early 1990s on “three-peat” while with the L.A. Lakers.  Whether the same phrase could be copyrighted is doubtful.

The point here is that social media sites cannot create rights that otherwise do not exist in the law, but can narrow or waive rights otherwise held by users with their ToS agreements.  The conclusion that because Twitter has disclaimed ownership of Tweets the tweeting user must necessarily own them is a false syllogism.  In other words, the language in the Twitter ToS to the effect that “what’s yours is yours” and that ”[the Twitter account owner] profile and materials remain yours‚” is merely prcatory, as lawyers say.  It doesn’t bind anyone and certainly cannot govern if the copyright claim is disputed in court.

Copyrightable contents must be original, an expression (not a fact or opinion) and not merely an idea. If the material you post through Twitter isn’t copyrightable to begin with, it will not mystically transform into protectable content merely by being Tweeted, and decidedly not because, as between Twitter and its users, Twitter has technically disclaimed ownership. Hence, as one writer cogently observed:

The long and short of it is this: if 90% of all Tweets are nothing more than recitation of facts. That means that about 90% of Tweets are not protectable. For the other 10%, we’re not done with you yet. It’s all in how those facts are stated.

Twitterlogical—The Misunderstanding of Ownership. [Note to author Brock Shinen: this is most decidedly fair use!!]  Also useful in this regard is an interesting blog post by PR specialist Evan Hanlon on the conflict between social media and copyright law as applied to digital music sharing.

Well, it’s not really “how the facts are stated” so much as whether the expression is original and not somehow “donated” to the public domain by posting on Twitter.  A serious argument can be made, with which I tend to agree, that Tweets inherently cannot be copyrighted, even IF original, because the very act of posting them on Twitter means the entire world can see them, without the author’s permission. So unlike other social media sites, where access to UGC can be controlled, at first blush it seems that unless one has a “private” Twitter feed, one cannot claim copyright in Tweets because the very nature of tweeting is that the tweeter intends that anyone in the world can view, link to and use his or her Twitter UGC.

(c) Tweets and Fair Use. Indeed, the underlying rationale for according Tweets copyright protection breaks down entirely when one examines fair use.  First, if copyright applies to public Tweets, then traditional media’s use of them to date — including reading or displaying in full on television — cannot be fair use because it copies the entire “expression.”  Second, the accepted practice of “retweeting” (RT) contradicts the basic principles of copyright law. Because users can (and do) retweet without limitation, it is a fair conclusion that posting a Tweet is an implied  copyright license, at least for duplication by others on the same site.  As Mashable’s Pete Cashmore noted, taking another user’s Tweets is not “copying,” but “retweeting. And I love it..”  That comes at the question from the perspective of third-parties, rather than the putative content owner, but cogently expresses the idea that application of copyright to Tweets is problematic, at best.

Now it remains true that general legal rights and obligations can be varied by agreement.  And to date, courts have largely accepted the de facto use of checkboxes to indicate a user’s “acceptance” of ToS contracts, drafted entirely by Web site owners, to which they have had no input or ability to negotiate. (California recently signaled a possible change to this assumption with a controversial decision as to software “shrink wrap” agreements, however.)  So, assume we are now dealing with photos instead of 140-character messages.  No one would argue that photos cannot be (or generally are not) copyrightable original expressions. So then — unless the act of posting itself is abandonment of a claim of copyright — ownership of rights on photos will be determined by the ToS of the social media Web site owner.

(d) Style or Substance? Here we have an interesting contrast. Facebook, as noted, has advocated a rather different view of copyright, insisting on a royalty free, perpetual license to UGC as a condition of posting — indeed, a license that survives death or withdrawal.  Absent some independent constraint, like unconscionability, those ToS licenses are valid, regardless of a user’s rights under the Copyright Act. And Facebook has a point, because once “shared” with friends on the site, photos are (or at least can be) copied to some or all friends’ pages.  Twitter, in contrast, says that UGC is always the user’s property. (As careful lawyers, however, Twitter’s counsel also include an express ToS license, even though retaining the “what’s yours is yours” language.)

This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours — you own your content.

Yet the inherently public nature of Tweets, which are “shared” with others by posting but not (except by retweeting) cross-posted as on Facebook, means that Twitter really does not need a license to the content of Tweets, since it does nothing with them other than what the user specifically intended, namely posting them on a Web page.

In the final analysis, this difference is probably more cosmetic than substantive, more about optics than legal rights.  Twitter has designs to become the real-time Web’s “utility” infrastructure, so its business model does not require, indeed conflicts with, the company’s ownership or licensing of UGC.  Facebook, in contrast, is a walled community, constantly devising ways for user to spend more time (whether or not productive or addictive) on the site.  So for Facebook, and especially because any element of a Facebook profile can be made private, including to all other Facebook members, its buisness needs licensing for the model to work.  They are different business models, driving different views of IP law.  Just like beauty, in other words, the answer is in the eyes of those with the content itself!

And, BTW, if you think the above is thorny or complex, just ponder for a moment the even more opaque question of who owns UGC after the user dies. We’ve needed living wills and medical powers of attorney for more than a decade to exert personal control critical health care decisions. Will we also need Web-proxies authorizing our medical decision-makers and heirs to access and control UGC? Yup, you know the answer — “it depends.”  A week or so after I first posted this essay, in fact, Facebook announced that it will “memorialize” profiles of deceased members if their friends or family request it.  Facebook Keeps Profiles of the Dead [AP].  That may not be the law, as of now, but it does suggest that social networks will increasingly be required as a practical matter to develop their own policies, based on the interests and needs of their users, on how to address death in cyberspace.

In Part III of this series, we explore trademarks, genericide & “Twittersquatting.”


Can’t Buy Me Love, But Friends for Sale

The Australian company uSocial is selling Facebook friends to corporate customers for marketing and advertising purposes. Not enough Facebook friends? Buy them [Reuters]. Now I agree that it can be difficult for brick-and-mortar businesses to generate a loyal online social media following. But that really is no excuse for transforming the truly social act of “friending” someone into a purely monetized, commercial relationship. To the contrary, Facebook’s advertising platform allows sponsors to target the audience they are looking for whether or not the individuals have “friended” the company.

Cant Buy Me Love

Can't Buy Me Love

So the purpose of buying friends — which, to be fair, is really buying leads, because uSocial cannot guaranty that the members contacted will accept friend requests for its clients — is rather to inflate the perception of the company’s brand as socially popular. Want 5,000 More Facebook Friends? That’ll Be $654.30. Advertising audience is really secondary. That makes it not that much different from what goes on with grocery store shelf space, movie reviews and the like. It just is an order of magnitude more unseemly to do it in the context of a consensual social media setting.

Years ago (and soon again thanks to Beatles Rock Band), The Beatles sang that “money can’t buy me love.” Well, it is a sad reflection on where we’ve come as a society that, in the 21st century, money can buy you friends.

The Law of Social Media (Part I)

Who owns user generated content (UGC) posted to social media sites such as Facebook, Twitter, MySpace and the like? How has or will the law evolve to deal with the different, and sometimes unique, modes of personal interaction (with others and with information) made possible by social networking technologies? These are just a few of the legal issues presented by the emergence of social media, one of the fastest growing — and most addictive — forms of Internet-based communication in the relatively brief history of the medium.

1. It Depends

Before diving into the answers, a few words of caution, however. The law evolves slowly and rarely keeps up with technology. Legislation typically solves problems from the PAST decade, not the ones facing Web site operators, users, content providers and ISPs in the immediate future. So if readers believe you can wait for the U.S. Congress (or even state legislatures) to solve the legal status of social media, that is myopic. Far more likely is repetition of the pattern exhibited over the past 15 years with respect to a variety of Internet issues, from spam to judicial jurisdiction. A rather long, and not altogether satisfying, process of applying legacy legal rules to a new technology, progressing in fits and starts and formed principally in the cauldron of litigation.

That is not the optimal way to establish law or policy, but it remains the default in any legal system, including the United States, where citizens have recourse to both a legal code (statutes) and judge-made law (common law). Disputes must be resolved even where, as is all too typical, the statute-writers have not yet dared to tread. The consequences for “social media law” are enormous. While hundreds of millions of Internet users post content to and exchange messages and information via social media on a daily basis, the legal rights, duties and status of that information remain essentially unformed. It is a common impression that lawyers always answer questions with “It depends,” but for social media, those answers are 100% correct. Any effort to compile “the law” of social media — including this essay — is in reality a prediction of how courts will decide cases brought before them. It’s an educated guess, at best.

Social media is unique in some ways (one-to-many, public sharing, etc.), but in other ways is just new communications forum — old wine in new bottles, as the old legal (and biblical) saying goes. Witness St. Louis Cardinals’ baseball manager Tony Larussa’s lawsuit versus Twitter, based on an allegation of so-called “cybersquatting” arising from use of LaRussa’s name as a Twitter “handle” by another subscriber, or criminal prosecution based on “cyberbullying” on MySpace or making assault and murder threats on Twitter.

In May, authorities in Guatemala arrested and charged a man after he sent a 96-character tweet urging depositors to withdraw funds from a bank involved in a political-murder scandal. As Associated Press reports (via USA Today), the message earned him the dubious distinction of becoming one of the first people ever to be arrested for a tweet.

How Much Trouble Can One Tweet Cause?. These are just the tip of the proverbial iceberg but illustrate that the law develops by analogy, applying to new situations the traditional rules applicable to similar circumstances. It hardly matters that LaRussa’s lawsuit, for instance, was not controlled by the federal statute making fraudulent or bad faith domain name registration unlawful (15 U.S.C. 1125(d)) where the domain infringes a trademark. He was still permitted to bring a lawsuit claiming that Twitter’s “misappropriation” of his name as an Internet identifier violated his rights. That the suit ultimately was dismissed before a decision is far less important than that the issue was raised, for the first time, in the context of a judicial dispute.

All of this suggests informed observers should regard pronouncement of social media law as tentative. The traditional rules applicable to social interactions may apply, or may apply differently, in the context of social media. In other respects, social media may upend traditional notions of legal status and privacy.  And with the increasing penetration and popularity of location-based services, which can make one’s physical presence a matter of public record, as well as a commercial commodity, the disruptive impact of social media will likely extend to the law itself.

In Part II of this series of essays, we explore the impact of social media on intellectual property law, focusing on copyright (and then trademark).

Social Media Rules of Engagement

OK, so my new colleague Ryan Wynia at BeYOB.com posted, in bullet form, the “rules of engagement” for social media for businesses I presented at SPARKt2 in Chicago on April 29. Glenn Manishin’s Rules of Engagement [BYOB]. But that short treatment misses some of the nuances, and besides, I thought of them first! So here are my six rules of engagement for social media — Twitter, Facebook, etc.– all of which can be summed up in the phrase “if you are going to do it, do it right.”

1. Be Authentic…Have an Identity. When using social media for business, you must establish a unique identity. While the early Web was accompanied by the slogan “No one knows if you are a dog on the Internet,” social media are different. Reputation and credibility flow from identity. If you want to develop business via social media, don’t be anonymous and do not be a cartoon. Logos may be fine for corporate PR and customer relations postings, but without a profile photograph, bio and link, audiences will be far less likely to follow you and even less willing to believe what you say.

2. Offer Value (Content), Not Self-Promotion. This should be a no-brainer. When participating in social media, what is of interest to other members is substance. Despite popular misconceptions, social networking is not about revealing what one ate for breakfast. Rather, it is providing domain expertise to others by sharing one’s knowledge, experience and insights. Twitter is filled, for instance, with get-rich quick and Web marketing schemes, life coaches, success gurus, MLM schemers and others engaged in overt sales pitches. They are rapidly becoming classified as “Twitter spam” and rightfully ignored. To gain an audience, talk about what you know, not what you sell.


3. Listen to the Audience. A corollary to rule #2, stay sensitive to “trending” topics and engage on matters of relevance to the audience. That means listening as much as talking on social media sites. A traditional maxim for negotiations is that one must acknowledge the views and statements of others (”I hear what you say…“) before responding, especially if critiquing. By engaging after listening, one can ensure that posts and updates reflect the issues on which the audience is looking for information. And by providing it, you can and eventually will gather your own audience of followers and readers.

4. Tone Matters. “Social stream” is rapidly replacing email as a dominant form of digital communication. But even more than email, social presence and status updates are communicated in near real-time, meaning that hitting the “post” or “update” button without thinking about the wording of your content can be disastrous. Mainstream media is filled with stories of employees being disciplined or fired, and applicants rejected, because of inappropriate “Tweets.” This is so way more problematic than a college student uploading drunken beer pong photos to Facebook or Flikr. Sacrcasm reads even worse on social media than it does in email. Avoid flame wars at all costs!

5. Follow, Answer and “Retweet.” The Web is about content and community, not technology. So after adjusting to the immediacy of social streaming, the most important aspect of doing business on social media is engaging that community by participating as a full-fledged member. Lurking is dated and counterproductive. Interact with others, promote good ideas by following and reposting authors. The more you participate the more you can profit in the long run.

6. Remember That “Tweets Live Forever.” Nothing one posts on social media sites goes away, even after one quits. Facebook, for instance, made clear in February that content shared with other members survives if a member cancels his or her subscription. Blog comments, Twitter posts, etc., are archived and indexed by Web bots and spiders almost instantly. You can delete a Tweet, but chances are almost 100% it remains visible to the world. So when posting content, ask the old question–would you want your update to appear on the front page of the New York Times? If the answer is no, trash it and move on. Remember, social media for business is about brand and reputation building. You will never sell anything if your “recalled” updates brand you as a loose cannon or a curmudgeon.

What do you think? Reactions appreciated. You can also check out my companion post on SiliconANGLE.

Who Owns Social Media UGC?

Two weeks ago there was a major outcry within the Facebook community over revised Terms of Service (ToS) for the hugely popular social networking site. The gist of the protest was an implication in the new ToS that Facebook claimed “ownership” of user-generated content (UGC) and reserved the right to market it for for commercial purposes.

Facebook ToS

Facebook ToS

That conclusion would be rather stupid from a business perspective and was quickly disowned by Facebook management. Facebook CEO Zuckerberg: “We Do Not Own User Data” [Mashable]. But because this was a Website policy, changeable unilaterally without user consent, it leaves unanswered the larger question of whether UGC is owned by the person posting the content, the person on who’s page/site the content appears or the owner of the service/server. The issue is WAY broader than Facebook. It applies, for instance, to comments posted on newspaper sites, blogs, photos shared on Flickr and the like, and many more applications.

Today I am not trying to answer the question, rather raising some. In the law of traditional commercial relationships — say banking or telephony — the “content” one shares with a company is owned by the corporation. Your banking records can be obtained by the government without your consent because they are “owned” by the bank. Only sector-specific privacy laws like Gramm-Leach-Bliley, which are altogether too rare in the United States, limit what the company can go with data arising from its relationship with customers. Hence, Facebook was possibly wrong (although correct from a customer relationship standpoint) to argue that it needed a license from one user to display his/her content on the “Wall” of another user, even when the first person had affirmatively decided to share that UGC by posting it within Facebook.

But what of corporations as employers? Since the law is settled, right or wrong, that a company owns emails generated on its systems, regardless of whether work-related, will that same conclusion hold for social communications sent and received via an enterprise Internet connection? And what of copyright; if a user posts photos to a sharing site, does that act imply either abandonment of their ownership interest or the grant of a “fair use” right to republication in full to the world?

These are interesting, and perhaps important, questions in the developing law of social media. Stay tuned here for more analysis and discussion as we make some tentative predictions of how the law will evolve and whether, in the ultimate analysis, it matters.