This is David Mink's presentation at SMX East 2012 on the Current HOT TOPICS in Internet / Social Media Law

1. Current HOT TOPICS in
Internet / Social Media Law
David Mink, CEO
David@AvalaunchMedia.com
@dmmink

2. First Things First
• There are MANY legal issues - This presentation will focus
on a few of the current LEGAL HOT TOPICS related to
Social Media and its use in business
• Avalaunch advocates the use of Social Media and
encourages people NOT to be scared of using it
• Yes, I am an Attorney -- but this is no way to be taken as
legal advice in ANY way and is ONLY informational
Current HOT TOPICS in Internet/Social Media Law - @dmmink

3. Current State of SM and Legal Cases
• As of the end of 2011, there have been 647 “Social Media”
lawsuits that have settled in court
– MySpace 326
– Facebook 262
– Twitter 49
– LinkedIn 37
• Remember…this does not include those settled out of
court (Typically, 2-3% of cases go to trial)
Current HOT TOPICS in Internet/Social Media Law - @dmmink

4. DON’T BE ALARMED!!
• 1st Step is educating yourself (or letting someone educate
you) about the legal issues
• AVALAUNCH is here to help you!
– Education Seminars
– Working with Key Staff
– Social Media Policies and Employee Contracts
• So let’s move forward…
Current HOT TOPICS in Internet/Social Media Law - @dmmink

5. BEFORE WE CHARGE AHEAD…
• AGENCY LAW (Boooooorrrring, BUT Important!!!)
– Do you want ANY tweet/post by ANY employee to be
viewed as your business’s message?
PRINCIPAL  AGENT  3rd PARTY
(Your Business) (Employee/Contractor) (Your Customers)
Current HOT TOPICS in Internet/Social Media Law - @dmmink

6. BEFORE WE CHARGE AHEAD…
• AGENCY LAW (Boooooorrrring, BUT Important!!!)
– Important to know what your Employees/Contractors
CAN and CANNOT do with Social Media in your business
» Social Media Policy (Do you have one? Updated?)
» Employee/Contractor Contracts (Do E/C’s know boundaries?)
» Educate Employees (Do Employees know about Policy? Frequency?)
Current HOT TOPICS in Internet/Social Media Law - @dmmink

7. INTELLECTUAL PROPERTY TRAPS
• IP = Overarching Legal Term  “Creations of the Mind”
• With Social Media, it is so easy to “cut/paste” or “share”
• Most companies are happy about the publicity, BUT when
you use their IP (i.e. pictures, videos, logos, slogans, etc.)
to promote your business….NOT GOOD
Current HOT TOPICS in Internet/Social Media Law - @dmmink

8. INTELLECTUAL PROPERTY/AGENCY - Case Study
• Google Music, “Mr. Brainwash”, and Jimi Hendrix
(Jim Marshall’s Original) (Google/Thierry Guetta’s Art)
Current HOT TOPICS in Internet/Social Media Law - @dmmink

9. INTELLECTUAL PROPERTY/AGENCY - Case Study
• Jim Marshall v. Thierry Guetta & Google
» Google hired Guetta for Google Music art
» Guetta’s Defense: Google "knew or should have known
[the art pieces] were infringing works” (It’s Your Fault…not
mine!)
» It’s a question of “contributory liability” - RULE: "an actor
may be contributorily liable for intentionally encouraging direct
infringement if the actor knowingly takes steps that are
substantially certain to result in such direct infringement."
See: http://www.hollywoodreporter.com/thr-esq/google-jim-marshall-lawsuit-music-store-napster-371543
Current HOT TOPICS in Internet/Social Media Law - @dmmink

10. INTELLECTUAL PROPERTY - Case Study
• WHO OWNS YOUR TWITTER ACCOUNTS?
• Phonedog Media v. Noah Kravitz
» Phonedog hired Kravitz for SM marketing
» Kravitz attracted 17,000 followers as @Phonedog_Noah
» Left Phonedog and changed to @NoahKravitz
» Phonedog currently battling in court for account rights
Current HOT TOPICS in Internet/Social Media Law - @dmmink

11. INTELLECTUAL PROPERTY - Case Study
• Phonedog Media v. Noah Kravitz
• Lessons Learned/Best Practices:
» Be specific in your Social Media Policy and Employee
Contracts about who owns your social media content (i.e.
profiles, access info, content, followers, etc.)
» Outline clear distinctions between professional and personal
accounts
» Review Social Media policies on a regular basis
Current HOT TOPICS in Internet/Social Media Law - @dmmink

12. INTELLECTUAL PROPERTY POLICIES
• WHAT ARE YOU SIGNING UP FOR?
• Facebook’s IP Policy =
Facebook respects the IP rights of others and is committed to helping 3rd protect their rights. Our
Statement of Rights and Responsibilities prohibits users from posting content that violates another
party's IP…You own all of the content and information you post on Facebook, and you can control
how it is shared through your privacy and application settings. In addition: For content that is
covered by intellectual property rights, like photos and videos (IP content), you specifically give us
the following permission, subject to your privacy and application settings: you grant us a non-
exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that
you post on or in connection with Facebook (IP License). This IP License ends when you delete
your IP content or your account unless your content has been shared with others, and they have
not deleted it. If we remove your content for infringing someone else's copyright, and you believe
we removed it by mistake, we will provide you with an opportunity to appeal. If you repeatedly
infringe other people's intellectual property rights, we will disable your account when appropriate.
Current HOT TOPICS in Internet/Social Media Law - @dmmink

13. INTELLECTUAL PROPERTY POLICIES
• Twitter’s IP Policy =
Twitter respects the intellectual property rights of others and expects users of the Services to do
the same. We will respond to notices of alleged copyright infringement that comply with applicable
law and are properly provided to us….
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole
discretion, and without liability to you. In appropriate circumstances, Twitter will also terminate a
user’s account if the user is determined to be a repeat infringer.
You retain your rights to any Content you submit, post or display on or through the Services. By
submitting, posting or displaying Content on or through the Services, you grant us a worldwide,
non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process,
adapt, modify, publish, transmit, display and distribute such Content in any and all media or
distribution methods (now known or later developed).
Current HOT TOPICS in Internet/Social Media Law - @dmmink

14. INTELLECTUAL PROPERTY POLICIES
• Pinterest’s IP Policy
• Pinterest recently revised Terms relating to IP infringement.
»There is no "applied express consent that all pinners who pinned
images made the legal representation that he or she explicitly owned
the copyrighted material.” (What does this mean for you?)
• However, this still doesn't address the liability issue for pinners as
indemnification clause stays the same --
»"You agree to indemnify and hold harmless Pinterest, and its officers,
directors, employees and agents, from and against any claims, suits,
proceedings, disputes, demands, liabilities, damages, losses, costs and
expenses, including, without limitation, reasonable legal and accounting
fees" ... related to copyright breaches.”
Current HOT TOPICS in Internet/Social Media Law - @dmmink

15. INTELLECTUAL PROPERTY POLICIES
• Pinterest’s IP Policy
• Lessons Learned/Best Practices:
• If you own IP, you have to decide if the Pinterest “publicity” is good
for your business
–If YES, you can take advantage of Pinterest’s “opt-out” option
and provide pinners an “explicit license grant” so brand advocacy
can be achieved
• If you are using other’s IP, you should have a company plan/policy
for checking what is “safe” for repinning and what should be
avoided
• NO CASE LAW yet…
Current HOT TOPICS in Internet/Social Media Law - @dmmink

16. EMPLOYER / EMPLOYEE SM PRIVACY
• Privacy issues with Social Media are becoming prevalent in
Employer and Employee relationships
– Can an Employer fire an Employee based on a Facebook “like”?
– Is it legal for Employers to require their Employees to provide
login/passwords for access to personal Facebook accounts?
Current HOT TOPICS in Internet/Social Media Law - @dmmink

17. EMPLOYER / EMPLOYEE PRIVACY - Case Study
• Bland v. Sherrif B.J. Roberts
» Wrongful termination suit -- Roberts fired 6 employees for clicking
“like” on his campaign opponent, Jim Adams’, Facebook page
» The employees filed a law suit claiming that a “like” was
Constitutionally protected speech
» Judge stated:
• "Simply liking a Facebook page is…not the kind of substantive statement
that has previously warranted constitutional protection. The Court will not
attempt to infer the actual content of Carter's posts from one click of a
button on Adams' Facebook page."
Current HOT TOPICS in Internet/Social Media Law - @dmmink

18. EMPLOYER / EMPLOYEE PRIVACY - Case Study
• Is it legal for Employers to require their Employees to provide
login/passwords for access to personal Facebook accounts?
» As of this year, 3 States have passed laws prohibiting
employers from doing this:
• Maryland / Delaware / Illinois
» Many other States are starting to look at this issue
» Congress is also investigating this Employer practice
• KNOW THE LAW IN YOUR STATE
Current HOT TOPICS in Internet/Social Media Law - @dmmink

19. FINAL THOUGHTS…
• Educate yourself and your company on the legal risks
• If you don’t have an Internet / Social Media Policy…GET ONE!
– Prepare, plan, and continually update a Social Media
Policy for your business.
• Don’t be overly restrictive in using Social Media for your
business (there’s a reason “everybody’s doing it”)….Use Common
Sense!!!
• The Yeti can help you!!!
Current HOT TOPICS in Internet/Social Media Law - @dmmink

20. THANK YOU!!
David Mink, CEO
David@AvalaunchMedia.com
@dmmink