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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!
It is rare that the justices of the Supreme Court of the United States actually write or speak about technology. But as connectivity and user-generated content become more ubiquitous and pervasive, sometimes the Court — despite its inherent judicial conservatism — just can’t avoid touching on issues related to the use, importance and legal status of modern communications technologies.
In that respect, the just-completed 2009-10 and 2010-11 Supreme Court terms witnessed two rather impressive developments. First, while more than a year ago most of the justices, and especially Antonin Scalia, said they had never even heard of Twitter, 2010 saw the first-ever mention of blogs and “social media” in a Supreme Court opinion, namely the controversial Citizens United decision on corporate campaign spending.
Rapid changes in technology — and the creative dynamic inherent in the concept of free expression — counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.
Citizens United v. FEC, 130 S. Ct. 876, slip op. at 49 (2010) (emphasis added; citations omitted).
Second, in this spring’s ruling overturning California’s regulation of violent video game sales to minor children — a/k/a teenage gamers — a sharply divided Court grappled not with the previously undecided question of whether video games merit First Amendment protection (on which there was unanimity), but instead the far narrower one of how to show a “compelling state interest” in restricting speech directed to children. That led to a remarkable passage, from Scalia himself, which as is typical was relegated to a footnote (where the “good stuff” is often found):
Justice Alito accuses us of pronouncing that playing violent video games “is not different in ‘kind’” from reading violent literature. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . ., they are as much entitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).
So the lesson is that although Justice Scalia may not know how to Tweet, but he can spell perfectly the name of a classic martial arts videogame, while still believing that The Divine Comedy is of greater value to society.What would the modern, technophile generation think about that? We’ll probably never know, because those facile with the means for mobile and rapid communications have short attention spans and thus probably lack have the patience (interest aside) to read Dante, even the Cliff Notes version, and tell us!
Nearly 10 years ago, days after the 9/11 terrorist attacks, I drove home to the Washington, DC suburbs from Santa Fe, New Mexico. It was a long, long trip, some 28 hours of driving over two and 1/2 days, but an experience like no other. There was a special sense of community, of shared loss, of egalitarianism that pervaded the highways. Flags and signs hung from overpasses. Everyone listened to the same news alerts. People made eye contact at rest stops and restaurants, nodding knowingly about the inner rage, and determination, affecting the United States. In many ways, it was a highly spiritual experience and a unique time in this country.
Sunday’s special ops killing in Pakistan of Al Qaeda leader Osama bin Laden — mastermind, symbol and financial underwriter of the Al Qaeda network — produced much of the same feelings. Twitter and social media were overwhelmed. Young people, who have never known a United States without its current national security state apparatus, celebrated in front of the White House. CNN and the other television news networks served as a place of gathering for Americans of all races, backgrounds and socio-economic status.
Bin Laden’s theory was that Western democracies are weak and thus that direct terrorist attacks would splinter the citizenry and end Western involvement in the Middle East. He got it entirely backwards. The reality is that 9/11 united the United States. We debate and fight about tactics, long-term strategy and effectiveness, but since that day no American can look at the massive hole of ground zero in Manhattan’s financial district, or the new granite walls of the Pentagon, without recalling where they were and how they felt on 9/11. That’s a legacy that has already outlasted bin Laden.
bin Laden was special ops "double tapped" in the forehead. Guess AK-47 marksmanship training FAILED for that bastard. A fitting end.
There’s another way in which bin Laden’s death has once again transformed this country from a nation of strangers to a shared community. This president, whose policies on healthcare, deficit reduction and the like are attacked from all sides, risked everything to get America’s most well-known terrorist enemy. If the operation had failed Obama would have been a crippled leader, like Jimmy Carter after the 1980 Iranian hostage rescue operation faltered in the desert sands, with re-election impossible. His was a balls-out call. For a Democrat, especially, to maintain secret, unilateral “black” intelligence operations in foreign countries has been all but anathema. Obama acted more like Ronald Reagan than either W. or Bush 41 ever did.
John Ullyot, a former Marine intelligence officer who served as a Republican spokesman on the Senate Armed Services Committee, said the operation was “a gutsy call because so much could have gone wrong. The fact that Obama approved this mission instead of the safer option of bombing the compound was the right call militarily, but also a real roll of the dice politically because of how quickly it could have unraveled.”
No one is criticizing the decision to assassinate bin Laden. That in itself is simply amazing, another sign of the feelings of community pervading this country. They will not last, of course. But today we are once again all Americans.
One difference is that although worldwide support for American spiked after 9/11, it seems even Arabs and other Muslims have now largely abandoned the anti-Western Jihad mentality that bin Laden fostered. The revolutions in Egypt, Tunisia, Bahrain and Libya re not being driven by radical Shi’ite imams, rather by middle class tech executives and students. This year’s Arab Spring movement is secular and largely non-violent. American flags are not being burned and our government — massively out of character historically, and at long last — actually stood on the side of the protesters and against entrenched, repressive Arab governments. That’s another arrow in Al Qaeda’s coffin, and another way in which, in the instantly connected global community of today’s Earth, we really are all Americans.
Bin Laden was adept at convincing smaller, regional terrorist groups that allying with Al Qaeda and focusing on America were the best ways to topple corrupt regimes at home. But many of his supporters grew increasingly distressed by Al Qaeda’s attacks in the last few years — which have killed mostly Muslims — and came to realize that bin Laden had no long-term political program aside from nihilism and death.
The Arab Spring, during which ordinary people in countries like Tunisia and Egypt overthrew their governments, proved that contrary to Al Qaeda’s narrative, hated rulers could be toppled peacefully without attacking America. Indeed, protesters in many cases saw Washington supporting their efforts, further undermining Al Qaeda’s claims.
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.
October 24th, 2011 | 
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