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A rather odd reaction to budget difficulties, decriminalizing spousal abuse. "Facing Cuts, a City Repeals Its Domestic Violence Law" |… 14:09:32, 2011-10-12
5. Don’t Touch My Junk: Who Owns This Social Media Sh#t Anyway?
This is a presentation I made in June 2011 at the 140 Characters Conference in New York. It focuses on copyright and content ownership in social media.
Jeff Pulver: My friend the lawyer who is coming up next. I’ve known Glenn Manishin for like 15 years. He was one of the guys that worked with me and help revolutionized the world of communications. He’s focusing a lot on social and I asked him to come to the conference and share some prospective on copyright and an understanding of use of information — because what we think is ours may not always be ours. Without giving any of his talk away, Glenn please come up on stage, Glenn come on out.
Glenn Manishin: Well thanks for having me. I’m not going to give a typical lawyer talk. This is more of a rant. It’s a little bit hard to rant at 9:40 in the morning, but you’ll see that I changed the title slightly. I made it a little more family friendly for the Web but it really is: Who Owns This Social Media Sh#t Anyway.
(a) Introduction. Jeff calls this the “state of now.” Yet the law doesn’t like the state of now. The law works in history and tradition and precedent, and the most important legal issues affecting the social Web are things that are probably of no consequence to the rest of the world. That is, I’m not going to discuss how lawyers can engage in legal marketing using Twitter or Facebook, where you’ll see just a huge number of DUI defense attorneys and personal injury attorneys wanting to sign you up for their Mesothelioma cases. I’m not going to talk about which law controls because this is a global medium that affects anyone, everywhere. Your location is completely indifferent because it’s just an IP address; the courts have been struggling for 15 years with whether it’s the law of the US or the UK or Australia that controls and where you can have jurisdiction over all these people. Finally, the law doesn’t like what Jeff called a “social revolution.” The law is conservative institution, it protects vested interest, it doesn’t protect new interests.
(b) A Hierarchy of Laws. So with that intro: A hierarchy of laws. Now, obviously, the most important law is from the creator, the almighty, but here in the US it goes as follows. The Constitution is the supreme law of the land. Followed by statutes, those are laws either by Congress or the states. Then cases, decisions by judges and courts. After that contracts. A contract is a law because it decides rights between two people or two organizations. And then terms of service. You all know them, those things you don’t read and click through when it says “I accept,” but they define your rights as against Facebook, your rights as against Twitter. If you go back to 09, you’ll see there have been revolutions on Facebook periodically when the users object to new changes in terms of service, usually because some lawyer had some legalities that were’nt explained very well.
@glennm ha! cheers, Glenn. You were the most entertaining lawyer I've ever heard! And who doesn't love Robin Williams?
Well these things aren’t particularly important because God is agnostic to ownership interest — unless it’s your neighbor’s ass or tabernacles, he cares about those. The Constitution is indifferent to ownership, it protects property rights but doesn’t define what property is. Statutes are non-existent; there are no statutes about social media, even crimes like cyberbullying on Facebook, which is a very serious social problem. (I got a call last week from someone whose daughter almost committed suicide because of Facebook comments.) There are no statutes covering it, although some states have proposed it. Cases, as you’ll see are just dumb. Judges don’t get it, the lawyers who argue them don’t get it, and there haven’t been that many cases in any event. There have been a few cases about Twittersquatting — stealing of Twitter names. Contracts are rare because normally the question isn’t whether it’s me or you who owns the stuff, is it someone else? Now, if we’re going to talk about terms of service, as we will see they are irrelevant. Twitter says you own what you post. Facebook says you give us a license to do whatever we want with it, except to sell it.
(c) If You Give It Away, You Don’t Own It. Yet both instances are places where there is one simple rule. If you give it away, you don’t own it. Okay?
What is the nature of social media? It’s putting up posts or content of short duration or, if it’s a photograph like on TwitPic, content that you make available to the world. Now there are ways to limit that. As a sophisticated audience you know you can do a Twitter DM — it doesn’t grant ownership if you Tweet a picture of your shaved chest to your paramour, but it can get you into political trouble. It’s still private, you haven’t given it to the whole world. If you make your Facebook photos available only to friends no one else can look at them, but if just post something on Twitter, anyone in the entire world can read it, can download it, can embed it— they don’t need to know you, they don’t need to ask your permission.
What does that mean? That means, in my view, that you have abandoned any claim to ownership. If you post your video on YouTube anyone can download it. If you post your pictures to Flickr, you can enable a function that says download prohibited, all rights reserved. Then you could claim ownership to it because you haven’t given it to the world.
(d) AFP v. Morel. So let’s look at one case which is interesting. It’s called Agence France Presse, I think I pronounced that correctly, versus Daniel Morel. Morel was a photographer in Haiti during the big earthquake. He snapped some pictures, realized they had publicity value, put them on Twitter immediately — created a Twitter account and called it Photo Moral — and put a little copyright symbol next to it. But he didn’t go to Flickr and make them non-downloadable, he didn’t put a copyright symbol on the photograph itself and he didn’t even say, in his Tweets that went with the photographs, these are my copyrighted pictures. He just gave them away. Well, Agence France Presse, to its shame, took the pictures and put their own copyright on them and sold them to news organizations across the world. Tthat created the dilemma, who owned the pictures?
The court looked at the terms of service of Twitter and said Twitter grants a sublicense to third parties, their partners, and other viewers to look at photos but it doesn’t give them the right to publish themselves. Therefore, the terms of service don’t extend to Agence France Presse. Well, that’s silly because terms of service can’t create ownership rights. They could recognize them but if I have a Web site with you, I can’t decide who owns things for third parties. I don’t have any deals with the third parties. And the court never addressed the more important issue. The one I just talked about. Whether there is an implied license or have they abandoned ownership. Again, if Morel would have put this stuff on Flickr, right, or put a copyright watermark on it, there would be no question, but he gave it away to the world. So, as you can see, he took his pictures down. Smart man.
(e) Social Media Law & the French. It all gets into the French. Now as Gore Vidal said — I think this is a great quote — “It is a nation devoted to a false hypothesis on which it then builds marvelously logical.” Well whether or not French culture is dead, I think this case epitomizes some bad things about France. They have outlawed Islamic head coverings, they insist that Napa Valley can’t use the word champagne, they have a three-strike law for peer-to-peer downloaders. Meaning that if you download three files you could have your Internet service terminated unilaterally. They criminally prosecuted Yahoo as a war crimes defendant for allowing Nazi memorabilia to be sold on a Yahoo auction site — something that is absurd in American jurisprudence — and then they came here and tried to enforce the judgment against Yahoo. The US Court said no way. And of course you have the incident that I just told you with Agence France-Presse. The biggest news organization in France, just takes something that may or may not belong to them and decides that they own it.
If I’m right, that it doesn’t belong to anyone, they’re clearly liable for having put their copyright on it, but that’s not what the court was deciding. The court was deciding whether they enjoyed an ownership right because of Twitter. So, the bottom line is, that if we rely on the French to decide who owns our social media shit we are in big blan#&y trouble.
(e) English Pig Dog. With that I want to end up with my favorite quote about France. It’s from Robin Williams, courtesy of my son, who loved it when he was about six years old. He would be very proud of me by saying that with regard to the French, “I spit in your general direction, you English pig dog!”
In Part VI of this series, we will explore the effect of social media on employment law, including the privacy rights of employees. More to come!
If you’re read my The Law of Social Media essays or presentations, you probably know there have been few serious cases yet establishing law specifically targeting social media. One can apply basic principles to predict what courts will do, but so far there are only a handful of reported decisions that say anything at all about social media.
That does not mean nothing happened in 2010 in this rapidly evolving area. In my view, the most important developments are reflected in these four cases:
1. The Food & Drug Administration’s citation of Novartis for Facebook content that lacked required pharmaceutical side-effect warnings and disclaimers, and the agency’s subsequent delay in release of social media “guidance” for pharma until Q1 2011. The case illustrates that heavily regulated industries face special risks and burdens in structuring social media marketing campaigns.
2. The assertion of jurisdiction by the National Labor Relations Board over “protected activity” of employees (discussing working conditions, for instance) on Facebook, even where the company is not unionized. This shows that, although equal employment issues still dominate employers’ use of social media in hiring and firing, there may be limits to which companies can penalize workers for their social media posts if the content is work-related.
3. The New Jersey Supreme Court’s decision in in Stengart v. Loving Care Agency, Inc., reversing the older, black-letter rule that employees have no privacy interests at all in employer-provided email systems.
4. The decision just days ago by the U.S. Court of Appeals for the 6th Circuit in United States v. Warshak, holding that the 20-year old Stored Communications Act’s approval of warrantless seizure by the government of user emails is unconstitutional under the Fourth Amendment. This is the first judicial opinion that extends “reasonable expectations of privacy” from snail mail and the telephone to email, using a principled and thoughtful constitutional analysis.
Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments.
In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. . . . If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment.
And as my friends at SiliconANGLE have observed, the same rationale should apply as well to emails stored in “the cloud” or other Web-based email systems, like Gmail and Hotmail.
* * * * * *
So there you have ’em. Not quite as interesting as the worst-dressed actress and best cinema films lists we’ll see over the next few days, but (perhaps) a bit more relevant to our daily activities on social networks and the real-time Web.
I’ve posted a set of legible slides from my SocialStrat presentation on managing enterprise legal risks in social media. Find them here in native format or on the LexDigerati presentations page.
This is the SlideShare copy of my webinar presentation this afternoon for the SociaLex conference, focusing on the legal issues arising in connection with social media and managing socmedia legal risks in the enterprise. Slide quality is not the best, so I’ll repost later in native format. [The native format slides are here.]
Saudi Arabians will now need a governmental license to post on Twitter.
TechCrunch reports that the Saudi royal family has decreed that Tweets must pass government approval. That’s a reaction to June 2009′s so-called “Green Revolution” in Iran, where Twitter became an instrument for crowd-sourced demonstrations and altering Western media to repression.
Several of the previous posts in my The Law of Social Media essay series focus on core legal issues, such as copyright in user-generated content and employer use of social media for HR decisions. This one is a bit different. Like John Naisbitt, it describes what I am convinced are the most significant law/policy “megatrends” affecting the social media space today.
As an overview, consider the following scenario—and click for a larger image:
As the graphic indicates, the reality is that disruptive technologies quickly and visibly invite governmental regulation. That’s because change creates business and policy risks, which threaten legacy products and powerful business incumbents, and in turn which cause political pressures to protect established constituencies. Since social media is most assuredly a disruptive force, this circular pattern will likely manifest itself — in fact, as I discuss below it already has — in public policies towards social media and social networking communications.
1. Censorship & Filtering
Governments absolutely hate “unfiltered” social media and will move to censor and control it.
In the East, the basis for such censorship is political and religious oppression, as in Iran, North Korea, China, etc. In the West, the more unlikely culprit has been intellectual property (e.g., music and movie copyrights) and obscenity, as in Australia, France and New Zealand’s efforts to install country-wide porn filters and institute a “the strikes” rule against P2P file sharing. And everywhere, government mourns the loss of the historic financial and advertising basis for traditional media like newspapers and broadcast television, proposing to bail out or subsidize the latter in order to prevent social media from achieving dominance at the expense of last century’s communications technologies. Censorship is far from dead on the Web; in fact, it’s really only beginning.
2. Privacy
The EU’s strict data protection (privacy) regime will spread and overtake the US opt-out approach.
Most everyone knows that the European Union has a highly protective scheme of individual privacy in the digital age. Fewer understand that in the United States, with the exception of specially regulated industries like health care and financial services, the only privacy protections available are basically those the Constitution provides as against the government. That will change, however. The EU is too large a market for businesses to overlook, commerce today is fully globalized and while the United States remains the least privacy-centric of any major industrialized nation, that is changing as legislators and regulators more often choose an opt-in requirement for newer, albeit still infrequent, electronic privacy measures.
3. Criminal Law
Cyber offenses will (finally) be created.
In the past, criminal violations involving the Internet and online activities have largely focused on corporate interests, like the Anti-Cybersquatting, CFAA and CAN-SPAM Acts. But the current proliferation of pedophilia, cyber-bullling, stalking and other socially offensive digital-centric conduct is different. Many times, existing criminal laws — for instance, of assault — are not broad enough to cover online conduct. Other time, prosecutors are reluctant to indict and juries even more reluctant to convict. Yet the US congressional approach to indecency on the Web has for more than a decade been to attempt to ban conduct deemed seedy, whether pornography or gambling, to avoid having the “new” media infected with perceived old evils, for instance the Communications Decency Act of 1996. As a result, there is a good chance, well above 50% in my estimation, that the next several years will bring a proliferation of state and federal laws making criminally unlawful specific forms of online activity deemed socially deviant or harmful.
4. Anonymity
Anonymity on the Internet is under assault and may be lost.
A timely prediction, given that just yesterday two different courts compelled the unmasking of anonymous commenters in civil pretrial discovery—when the posters were not even parties to the cases. Ninth Circuit Upholds Unmasking of Online Anonymous Speakers and Illinois Appellate Court Unmasks Anonymous Commenters. There are a variety of reasons, but the principal one is that by defeating anonymity, politicians can be seen as “protecting” the victims of Web-based schemes, involving both antisocial (i.e., bullying, extortion, etc.) and anti-consumer (i.e., stock pump-and-dump chats, etc.) behavior, which sometimes end quite tragically, as in teenage suicides. This is reinforced by the continuing efforts of copyright holders (music, photos, video, news) to require ISPs to disgorge the identities of infringing users and by the FTC’s sponsored blogging “guidelines,” which support the theme of transparency from a consumer protection perspective. Almost alone among nations, only America has a Tom Paine and Federalist Papers/Primary Colors tradition of anonymous or pseudonymic political speech, yet even here — unless the Supreme Court intervenes — short-term passions, politics and national security phobias almost always trump free speech. The old proverb was that “No one knows if you are a dog on the Internet.” Don’t plan on barking much longer!
5. Competition
Competition and antitrust laws will reshape social media providers.
My core training is in antitrust law, although this megatrend has little to do with yours truly. Instead, it stems from the reality that Facebook, Apple and Google, among others, are already facing competition law investigations in the advertising, mobility, search and handset markets. From an economic perspective, there are very strong, positive network effects in social media, far greater than were true in the 1990s for Microsoft’s WIndows OS. As a consequence, viral expansion leads to small social media companies getting VERY big VERY fast: witness Facebook’s 500 million users and Twitter’s phenomenal hockey-stick growth curve. It is difficult for entrepreneurs to shake the old underdog mentality even when their companies become big enough that market power makes their business practices and acquisitions suspect, as Mark Zuckerberg is now learning to his chagrin. And when fueled by financial underwriting from legacy competitors — the dark political underbelly of Washington, DC and Brussels, Belgium antitrust battles — the “nascent” stucture of social media and wireless markets has, to date, not proven sufficient to keep the mitts of antitrusters from the US Department of Justice and the EU’s Competition Directorate from meddling—e.g., Google/Yahoo (2008-09) and Oracle/Sun (2009-10), to name a couple of examples.
6. Location
Location-bsed services will spawn a host of new policy battles.
“Location, location, locations” is not just a real estate slogan, it’s the cross-hairs for a number of policy trends affecting social media. The indicia are not found not just in the geometrically increasing popularity of geo-tagged photos, location check-in apps and games, and the like, but as well and perhaps more importantly in the fact that as wireless communications and data come to dominate telecom — a direct consequence of social networking — regulatory oversight follows almost automatically. “Nomadic” services like VoIP and video chart (e.g., FaceTime), in contrast, present an equally great threat to the established order by making location a matter of indifference. At bottom, this is an industry where eyeballs and advertising dollars still rule. So as marketers devise ever-clever ways to monetize users’ location (including the launch this week of my client shopkick’s location marketing app) all of the bad stuff that can happen online is bound, eventually, to arise with respect to location-based services. LBS isn’t bad; some people are bad. Unfortunately for the FourSquares and Gowallas of the social media world, that has never been enough in most societies to stop gun control—and it won’t be enough to arrest the coming push for consumer protection and marketing regulation in the location services space.
Note: I first used the “megatrends” metaphor while presenting at the 140 Characters Conference-DC (#140onf-dc) in June 2010, and am indebted to organizer Jeff Pulver for serving as my muse for these thoughts. Thanks, Jeff!
I’ve written about the legal problems associated with online social media accounts after a subscriber’s death. This is a way cool start-up idea that, at first blush, seems to solve then like an “advance medical directive” does for the dying
This is an ongoing issue with the American judiciary system. Judges are by institution isolated and by tradition older than the general population. Increasingly, however, they are called upon to rule on technologies with which they have no experience at all.
It does’t look like we’ll be seeing much Tweeting-from-the-bench on the Supreme Court any time soon, but the Hillicon Valley blog highlights an amusing moment at a recent House Judiciary subcommittee meeting, attended by two Supreme Court Justices — Antonin Scalia and Stephen Breyer in which they’re asked if they plan on using Twitter any time soon. Scalia says he doesn’t even know anything about it — and notes that his wife refers to him as “Mr. Clueless.” Reassuring to know that of a Supreme Court Justice. Breyer, however, seems to indicate a realization that Twitter, as a communication platform, really could be quite powerful.
Subcommittee Chair Steve Cohen: Have either of y’all ever consider tweeting or twitting?
Justice Scalia: I don’t even know what it is. To tell you the truth, I have heard it talked about. But, you know, my wife calls me Mr. Clueless — I don’t know about tweeting.
Justice Breyer: Well, I have no personal experience with that. I don’t even know how it works. But, remember when we had that disturbance in Iran? My son said, ‘Go look at this.’ And oh, my goodness. I mean, there were some Twitters, I called them, there were people there with photographs as it went on. And I sat there for two hours absolutely hypnotized. And I thought, ‘My goodness, this is now, for better or for worse, I think maybe for many respects for better, in that instance certainly, it’s not the same world. It’s instant and people react instantly… and there we are. It’s quite a difference there and it’s not something that’s going to go away.
October 17th, 2011 | 
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