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Social Media Game Plan: IP and Marketing Law Playbook by Feras Mousilli and Barry M

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Social Media Game Plan: IP and Marketing Law Playbook by Feras Mousilli and Barry M Social Media Game Plan: IP and Marketing Law Playbook By FeraS MousillI and Barry M. Benjamin For corporate attorneys who are still waiting for the so- cial media craze to fade away, you can no longer ignore the statistics: Two-thirds of the global internet popula- tion visit social media sites. If you believe your company can ignore the Facebook phenomenon, it would be tantamount to ignoring a market bigger than the eighth most populated country in the world. Social networking has exploded in popularity so quickly and become so ingrained in our daily lives that we can no longer think of it as “new media.” Companies hosting and participating in social media face numerous potential legal minefields — new court decisions come at a dizzying pace, often interpreting relatively new statutes that lack established precedents. Furthermore, as the line between “company time” and “personal time” blurs, companies struggle with the right balance between an employee’s free speech rights and restrictions to protect the company when the employee engages in social media. Protecting company intellectual property is yet another challenge. Whether dealing with “friendly” (fan sites) or “unfriendly” (gripe sites) situations, fashioning appropriate, consistent responses can be an arduous task. There are, however, a number of measures that can minimize risks of engag- ing in social media. ACC Docket 105 September 2010 Hosting social media — legal issues publish the problematic content, thus making the as a publisher problematic content a statement by the magazine Companies that were long content to publish itself, as opposed to the library, which merely brochure-type websites now feel compelled to provides access. Thus, as long as the website Feras Mousilli is implement social media capabilities on their own corporate counsel to host does not actively control tortious statements Dell inc., and websites — giving customers, the general public specializes in posted on its site by others, then the safe harbor and employees the ability to interact, post and intellectual property immunity would apply. Note that this type of and technology law. respond to messages, receive feedback, and even He can be contacted at immunity applies only to state law civil claims, upload pictures and videos. Given the poten- feras_mousilli and does not apply to criminal claims or claims @dell.com. tial legal pitfalls, it is critical to ensure a strong arising out of federal law such as trademark, business justification exists before implementing copyright and patent law.3 these capabilities — hosting social media by defi- Courts have interpreted the scope of the safe nition means losing some control over published harbor immunity under CDA 230 to provide content on your website. Negative comments Barry M. a very strong defense. Decisions consistently BenjaMin is a invariably come with positive ones, and some partner in the new hold that websites exercising traditional edito- may believe it is better not to engage with social york office of rial functions over user generated content, such Kilpatrick stockton media at all than publish derogatory comments and chairs the firm’s as deciding whether to publish, remove or even about your own company. Editing out negative advertising, edit material, are generally immunized under promotions and comments is possible, but such editorial control media group. He can Section 230 as long as they do not appear to the may bring cries of censorship and negative cus- be contacted at reader to transform the statement into their own bbenjamin@ tomer backlash. This is the legal, public relations kilpatrickstockton. statement, or otherwise adopt or endorse it. The and philosophical minefield to navigate when com. analysis of particular activities, however, gets joining the social media club. more difficult the more the host “interacts” with As the website host, your company is the pub- the user’s statement, such as altering its content, lisher of everything on the site, including user generated editing its meaning, or even altering similar statements content. As the publisher of potentially tortious statements, while not altering others. The broad scope of the safe har- e.g., from angry consumers, you could be liable (vicariously bor immunity is such that as long as the website host does or as contributors) for defamation. As a publisher, and not appear to adopt the tortious statement as its own, or under traditional theories, your company could also face change the meaning of a user comment or statement, gen- liability for copyright infringement for works uploaded by erally the immunity will apply. Thus, the key to preserving someone who does not own all rights to the works. safe harbor immunity is to avoid converting user-generated Fortunately, federal law gives website owners that content into a statement arguably attributable to your com- publish third party content (e.g., user generated content) pany as the website host. certain legal “safe harbor” immunities from liability for tort CDA 230 provides safe harbor immunity in any number and copyright claims. To gain these immunities, however, of situations. Pre-screening content prior to publication, the website owner must take certain enumerable steps, according to court decisions, is immunized activity, even based on the particular law at issue. Safe harbor from tort if the content turns out to be defamatory or otherwise claims is provided by Section 230 of Title 47 of the United tortious. Even after publication, the general rule is that as States Code,1 which was passed as part of the Communica- long as a website host does not change the substance or tion Decency Act of 1996 (the CDA), while immunity from meaning of a statement, it may actively edit the content copyright claims is provided by Section 512 of the Digital and maintain Section 230 immunity. That said, any editing Millennium Copyright Act2 (the DMCA). is difficult without risking an accusation that the mean- ing was changed, or that the comment was adopted by the Section 230 of the CDA host via the edit. Thus, editing should be done in limited United States common law generally holds the pub- circumstances only, if at all. lisher of a tortious statement to the same level of potential As for soliciting or encouraging users to submit con- liability as the speaker of the tortious statement. The CDA, tent, there is a difference between providing a forum for however, views the website host as merely a distributor consumers to comment and specifically requesting or of content and not as a traditional publisher, akin to a inviting user comments about a specific topic. Generally, library providing access to a book, rather than a magazine soliciting content or comments from users is acceptable, publisher providing access to articles. The magazine pub- and a website operator maintains its immunity. Do not, lisher had the chance to review, edit and decide whether to however, solicit the submission of illegal content, or design ACC Docket 106 September 2010 ness important to the client. The program helps minority her internal market. Associates who do work for partners the website to require users to input illegal content. The video using a copyrighted popular song, or even simply law students learn of the ins and outs of a client’s business are in demand. If an associate has uneven work (or just primary example of a website operator that faced liability playing a copyrighted song in the background. and about law firm life early in their careers. This could has some trouble with the initial assignment), she may not when soliciting information is where a roommate-finding In order to gain and preserve DMCA safe harbor immu- enhance their chances of getting an offer to return to the be requested to handle future assignments for the partner. website service included drop down menus for users to nities, a website host must take affirmative steps outlined same firm for the following summer and/or offers to join When this occurs, questions can sometimes arise for other specify characteristics such as race, sex and sexual orienta- in the statute. Just as with the CDA, the DMCA’s safe har- full-time after graduation. When interviewing for law firm partners about the associate’s performance, and word tion to assist their users in their search. By providing such bor immunities apply to third party content, not to content jobs at other firms, the students can discuss their clerk- gets out. Though this dynamic may exist for all associates, drop-down menus, the court found that the website host posted by the company itself — a company is not protected ship. This is a great way for them to break the ice at the many minority associates are concerned that once they are may have engaged in discriminatory activity.4 from claims based on its own infringing actions. interview. The summer experience supplements the stu- tagged in this manner, it may be harder for them to get The immunity provisions of the CDA are quite strong. DMCA section 512 outlines the necessary requirements dent’s law school grades, which for some students can be second opportunities to impress and redeem themselves in As long as the website host does not appear to be the to avoid liability for either permitting access to copyrighted a barrier to being hired; provides the student with writing the eyes of the partner or firm. Minority associates in this speaker of the wrongful statement, the immunities are works uploaded by others, or permitting access to copy- samples and references that can speak to the student’s true position sometimes believe they have no option other than generally preserved. righted works by linking or allowing others to link to those talents and abilities; and gives the student a better chance to leave the firm and start over elsewhere.
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