Welcome to The NetImpact’s May TXCHANGE      Happy Hour   Jeff’s presentation will begin at 6:00pm    Join the conversatio...
About The Net Impact          Web Development   Social Media          Web Design        Ecommerce          Web Marketing  ...
TXCHANGE Event Series     Short for “Technology Exchange”     Expert insights on new technology and web      marketing s...
We value your feedback!Give us your review on Google Places         places.google.com    Search for “The Net Impact”
About Jeff Schultz Partner and Chair, Social Media Practice Group Writer, speaker, and advisor on non-compete agreements...
Who Owns You?Content in an InteractiveWorld May 22, 2012 Jeff Schultz Partner, Armstrong Teasdale LLP Chair, Social Media ...
Armstrong Teasdale Social Media        Practice Group
Intellectual Property Rights Potentially  Implicated in Social Media Postings Copyrights Trademarks – Lanham Act Section...
Copyrights     Copyright protection is available for      original works of authorship     Everything you create as an o...
Copyrights –Notice/Registration/Infringement Notice of Copyright:    • “Copyright”, “Copr.”, or “©” + name and year of fi...
Copyrights – Defenses         Fair Use – A legal license          granted by the courts to          advance the public in...
Copyright – Defenses (continued) Digital Millennium Copyright ACT  (DMCA) Safe Harbor – 17 U.S.C.  Section 512   •   If m...
Trademarks    Trademark includes any word, name,     symbol,     or device which a person uses in     commerce to     ide...
Trademark Infringement:                 Likelihood of Confusion   For registered marks, a plaintiff must show that    def...
Trade Secrets—Uniform TradeSecrets Act A trade secret is information that:   • Derives independent economic value from no...
Contractual Rights           Non-Disclosure and            Confidentiality            Agreements           Invention Ass...
So How do These Legal Terms   Apply to Social Media?
Facebook Terms(last revised April 26, 2011)2. Sharing Your Content and Information    You own all of the content and infor...
Facebook Terms (continued)(last revised April 26, 2011)5. Protecting Other Peoples Rights    We respect other peoples righ...
Facebook Terms (continued)(last revised April 26, 2011)8. Special Provisions Applicable to Share Links   If you include ou...
Twitter Terms of Service(Effective June 1, 2011) Tip: What you say on Twitter may be viewed all  around the world instant...
Twitter Terms of Service (continued)(Effective June 1, 2011)Your Rights You retain your rights to any Content you submit,...
Blogger Terms6. Intellectual Property Rights. Googles Intellectual Property Rights. You acknowledge that Google    owns al...
WordPress Terms By submitting Content to Automatic for inclusion on your  Website, you grant Automatic a world-wide, roya...
Tumblr Terms3. Subscriber Content Subscriber shall own all Subscriber Content that Subscriber contributes to the Site, bu...
1. Sharing Your Content Your content. Pinterest allows you to pin and post content on the Service,  including photos, com...
Your responsibility for your content: To Pinterest and our community. Pinterest provides a creative and positive place  f...
8. Indemnity You agree to indemnify and hold harmless Pinterest  and its officers, directors, employees and agents,  from...
Restrictive Covenants (e.g. Non-Compete andNon-Solicitation Agreements) and Trade Secret                  Issues Issue 1:...
An Employee’sDuty of Loyalty In general, an employee  must not act contrary to an  employer’s interest However, an emplo...
BusinessOpportunitiesof the Employer When considering whether  an employee seizes the  business opportunity the  followin...
Example: You work in advertising/PR and write a social media  related book                               • Do you have a ...
Example: You work in advertising/PR for a major brewing  company and write a beer review blog in your spare  time        ...
Example: You work in advertising/PR for a major brewing  company and write a blog about cats…   • Unless it’s this cat…
Social Media Policies Can Provide     Much Needed Guidance                Things to Consider…                Does your i...
In Addition to a Policy, ProvideTraining to know Employees need  not only what is expected  of them and what rights  you ...
When in Doubt, Don’t be Afraid to             Ask No one can be expected to know everything about  social media New netw...
Contact Information        Jeff SchultzPartner, Armstrong Teasdale LLP          314.259.4732jschultz@armstrongteasdale.com...
Upcoming SlideShare
Loading in …5
×

The Wild, Wild Web, Social Media Law TXCHANGE with Jeff Schultz

703 views

Published on

Is a re-pin violating copyright? Who owns the content I post on Facebook? Are clients on my LinkedIn profile still a "trade secret"?

For modern organizations, social media is a key component of any internet marketing strategy. However, revolutionary technologies like Facebook, Twitter, and Pinterest have completely changed traditional ideas of intellectual property, employment obligations, and personal privacy. To keep up with the ever-changing online landscape, social media law is constantly evolving. A new legal frontier that is truly uncharted.

Watch this presentation from Jeff Schultz, Partner and Chair of the Social Media Practice Group at Armstrong Teasdale LLP.

Published in: Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
703
On SlideShare
0
From Embeds
0
Number of Embeds
104
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

The Wild, Wild Web, Social Media Law TXCHANGE with Jeff Schultz

  1. 1. Welcome to The NetImpact’s May TXCHANGE Happy Hour Jeff’s presentation will begin at 6:00pm Join the conversation on Twitter with @TheNetImpact #smLaw
  2. 2. About The Net Impact Web Development Social Media Web Design Ecommerce Web Marketing Mobile2
  3. 3. TXCHANGE Event Series  Short for “Technology Exchange”  Expert insights on new technology and web marketing strategies • Enterprise Social Media • Website Branding • Local SEO3  Now Broadcasting LIVE!
  4. 4. We value your feedback!Give us your review on Google Places places.google.com Search for “The Net Impact”
  5. 5. About Jeff Schultz Partner and Chair, Social Media Practice Group Writer, speaker, and advisor on non-compete agreements, trade secrets, computer tampering and social media Accomplishments • Recognized by the Missouri Bar for inclusion in the "2011 Pro Bono Wall of Fame“ • Named a "Rising Star" by Missouri/Kansas Super Lawyers® (2011) • Named Chair of The Missouri Bars Technology & Computer Law Committee. • First place winner in the Bar Association of Metropolitan St. Louis First Annual Trial Advocacy Competition.
  6. 6. Who Owns You?Content in an InteractiveWorld May 22, 2012 Jeff Schultz Partner, Armstrong Teasdale LLP Chair, Social Media Practice Group
  7. 7. Armstrong Teasdale Social Media Practice Group
  8. 8. Intellectual Property Rights Potentially Implicated in Social Media Postings Copyrights Trademarks – Lanham Act Section 45 (15 U.S.C. 1127); MO Rev. Statutes Ch. 417 Trade Secrets – Uniform Trade Secrets Act; MO Rev. Statutes Ch. 417 Contractual Rights
  9. 9. Copyrights  Copyright protection is available for original works of authorship  Everything you create as an original work has an inherent copyright attached  Examples include: blog posts, tweets, web sites, advertising material, music  Joint Works (2 or more authors)  Works for hire (created by employee)  U.S. Copyright Office Circular 66 expressly considers “Online” works  Ways to Secure Rights • Proper use of Copyright Notices (© 2011 ABC Corporation) • Copyright Registration
  10. 10. Copyrights –Notice/Registration/Infringement Notice of Copyright: • “Copyright”, “Copr.”, or “©” + name and year of first publication Registration: • allows you to bring an infringement action and provides the opportunity to recover Statutory Damages Duration: • Life of Author, plus 70 years • Works for Hire – 95 years from publication, or 120 years from year of creation, whichever first Infringement occurs when an owner’s rights are violated • Copying the original work • Creating new work derived from the original • Distributing original work without permission • Performing/displaying without permission of owner
  11. 11. Copyrights – Defenses  Fair Use – A legal license granted by the courts to advance the public interest. Generally includes use of protected work for news reporting, educational purposes, commentary and/or parody
  12. 12. Copyright – Defenses (continued) Digital Millennium Copyright ACT (DMCA) Safe Harbor – 17 U.S.C. Section 512 • If material is made available online by a person other than the service provider and the service provider responds to remove or disable access to the infringing material upon notification of infringement, the service provider is not liable for monetary relief. • Applies when: • Carrier does not know when it is carrying infringing material • Carrier does not receive a financial benefit directly as a result of the infringing material • Carrier conforms to notice and take down procedures
  13. 13. Trademarks  Trademark includes any word, name, symbol, or device which a person uses in commerce to identify and distinguish his or her goods, from those manufactured or sold by others  Ways to Secure Rights • By Proper Use of the Trademark in Commerce • Federal Trademark Registration (® vs ™ )  Strength of the Mark • Must be “distinctive” in identifying the owner as the source of the goods or services  Types of Marks
  14. 14. Trademark Infringement: Likelihood of Confusion For registered marks, a plaintiff must show that defendant used the mark: • Without consent; In commerce; That the mark used was a reproduction, copy or colorable limitation of plaintiffs’ registered mark; and that such a use is likely to cause confusion Courts apply a multifactor test which considers: • Similarity of marks vs. • Similarity of products • Area and manner of concurrent use • Degree of care likely to be exercised by consumers • Strength of Plaintiff’s mark • Whether actual confusion exists; and • Intent of defendant in selecting its mark
  15. 15. Trade Secrets—Uniform TradeSecrets Act A trade secret is information that: • Derives independent economic value from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and • Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
  16. 16. Contractual Rights  Non-Disclosure and Confidentiality Agreements  Invention Assignment Agreements  Terms and Conditions
  17. 17. So How do These Legal Terms Apply to Social Media?
  18. 18. Facebook Terms(last revised April 26, 2011)2. Sharing Your Content and Information 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. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others). When you use an application, your content and information is shared with the application. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, read our Privacy Policy and Platform Page.) When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture). We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).
  19. 19. Facebook Terms (continued)(last revised April 26, 2011)5. Protecting Other Peoples Rights We respect other peoples rights, and expect you to do the same. You will not post content or take any action on Facebook that infringes or violates someone elses rights or otherwise violates the law. We can remove any content or information you post on Facebook if we believe that it violates this Statement. We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page. If we remove your content for infringing someone elses copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal. If you repeatedly infringe other peoples intellectual property rights, we will disable your account when appropriate. You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission. If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it. You will not post anyones identification documents or sensitive financial information on Facebook. You will not tag users or send email invitations to non-users without their consent.
  20. 20. Facebook Terms (continued)(last revised April 26, 2011)8. Special Provisions Applicable to Share Links If you include our Share Link button on your website, the following additional terms apply to you: We give you permission to use Facebooks Share Link button so that users can post links or content from your website on Facebook. You give us permission to use and allow others to use such links and content on Facebook. You will not place a Share Link button on any page containing content that would violate this Statement if posted on Facebook.
  21. 21. Twitter Terms of Service(Effective June 1, 2011) Tip: What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!
  22. 22. Twitter Terms of Service (continued)(Effective June 1, 2011)Your Rights 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).Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.Tip: Twitter has an evolving set of rules for how ecosystem partners can interact with your content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content) Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be rebroadcasted by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Twitter will not be responsible or liable for any use of your Content by Twitter in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit. Twitter gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by Twitter as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Twitter, in the manner permitted by these Terms.
  23. 23. Blogger Terms6. Intellectual Property Rights. Googles Intellectual Property Rights. You acknowledge that Google owns all right, title and interest in and to the Service, including all intellectual property rights (the "Google Rights"). Google Rights are protected by U.S. and international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. As described immediately below, Google Rights do not include third-party content used as part of the Service, including the content of communications appearing on the Service. Your Intellectual Property Rights. Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Google services which are intended to be available to the members of the public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services. Google furthermore reserves the right to refuse to accept, post, display or transmit any Content in its sole discretion. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content submitted. You may choose to submit, post, and display any materials on or through the Blogger service or Blogspot.com under a public license (e.g. a Creative Commons license), whether by manually marking your materials as such or using Blogger service tools to do so. For avoidance of doubt, Google is not a party to any such public license between you and any third party. Also, for avoidance of doubt, Google may choose to exercise the rights granted under (a) the public license or licenses, if any, you apply to your materials or (b) this Agreement.
  24. 24. WordPress Terms By submitting Content to Automatic for inclusion on your Website, you grant Automatic a world-wide, royalty- free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your blog. If you delete Content, Automattic will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.
  25. 25. Tumblr Terms3. Subscriber Content Subscriber shall own all Subscriber Content that Subscriber contributes to the Site, but hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content and to allow others to do so (“Content License”) in order to provide the Services. On termination of Subscriber’s membership to the Site and use of the Services, Tumblr shall make all reasonable efforts to promptly remove from the Site and cease use of the Subscriber Content; however, Subscriber recognizes and agrees that caching of or references to the Subscriber Content may not be immediately removed. Subscriber warrants, represents and agrees Subscriber has the right to grant Tumblr and the Site the rights set forth above. Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Subscriber owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or (f) remains posted after Subscriber has been notified that such Subscriber Content violates any of sections (a) to (e) of this sentence. Tumblr reserves the right to remove any Subscriber Content from the Site, suspend or terminate Subscriber’s right to use the Services at any time, or pursue any other remedy or relief available to Tumblr and/or the Site under equity or law, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Subscriber Content or if Tumblr is concerned that Subscriber may have breached the immediately preceding sentence), or for no reason at all.
  26. 26. 1. Sharing Your Content Your content. Pinterest allows you to pin and post content on the Service, including photos, comments, and other materials. Anything that you pin, post, display, or otherwise make available on our Service, including all Intellectual Property Rights (defined below) in such content, is referred to as “User Content.” You retain all of your rights in all of the User Content you post to our Service. How Pinterest and other users can use your content. Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users. Nothing in these Terms shall restrict Pinterest’s rights under separate licenses to User Content. Please remember that the Pinterest Service is a public platform, and that other Users may search for, see, use, and/or re-pin any User Content that you make publicly available through the Service.
  27. 27. Your responsibility for your content: To Pinterest and our community. Pinterest provides a creative and positive place for you to discover and share things you love. To keep it that way, we ask that you review and agree to abide by our Pin Etiquette. We must also insist that you only use our Service in a manner that is consistent with the Pinterest Acceptable Use Policy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy. Please — be a good citizen on Pinterest, and always respect our Service and its Users. To third parties. Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights (defined below), publicity rights or rights of privacy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy. It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards. To learn more about copyright and fair use, please click here for some links to useful third party resources.
  28. 28. 8. Indemnity 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 (including costs of defense of claims, suits or proceedings brought by third parties), arising out of or in any way related to (i) your access to or use of the Services or Pinterest Content, (ii) your User Content, or (iii) your breach of any of these Terms.
  29. 29. Restrictive Covenants (e.g. Non-Compete andNon-Solicitation Agreements) and Trade Secret Issues Issue 1: violation of restrictive covenants/disclosure of trade secrets through the use of social media Issue 2: destruction of trade secret status/hurdles to enforcing restrictive covenants as a result of social media activities Result: employees are being asked to give up rights in restrictive covenants and employment agreements
  30. 30. An Employee’sDuty of Loyalty In general, an employee must not act contrary to an employer’s interest However, an employee may agree with others to compete upon termination of their employment and may plan and prepare for their competing enterprise while still employed But: An employee may not, while still employed, go beyond mere planning and preparation and act in direct competition with the employer
  31. 31. BusinessOpportunitiesof the Employer When considering whether an employee seizes the business opportunity the following factors may be considered: • The manner in which the opportunity was communicated • The “good faith” of the employee • The use of corporate assets to acquire the opportunity • The financial ability and interest of the company to undertake the opportunity • The degree of disclosure made to the corporation
  32. 32. Example: You work in advertising/PR and write a social media related book • Do you have a contract with your employer? • Are you using work resources? • Are you writing for the benefit of your employer? • Are you writing with the consent/encouragement of your employer? • Do you utilize Social Media because of your job? • Have you gained your expertise in the area because of your job?
  33. 33. Example: You work in advertising/PR for a major brewing company and write a beer review blog in your spare time • Do you have a contract with your employer? • Are you using work resources? • Are you writing for the benefit of your employer? • Do your followers know you work for the Brewery? • Are your posts promotional of/tied to your work at the Brewery? • Have you gained your expertise in the area because of your job?
  34. 34. Example: You work in advertising/PR for a major brewing company and write a blog about cats… • Unless it’s this cat…
  35. 35. Social Media Policies Can Provide Much Needed Guidance  Things to Consider…  Does your industry or profession have specialized rules or regulations concerning communication?  Will employees be allowed to use social networks during working hours?  Does the Company intend to claim ownership of any content?  How can employees use the corporate brand on social networks?  Will employees be allowed/expected to comment on company related topics?  What are the penalties for employees who violate your policy?  Reserve the right to modify the policy
  36. 36. In Addition to a Policy, ProvideTraining to know Employees need not only what is expected of them and what rights you may claim, but WHY You should make clear what expectations and opportunities your company may be interested in Regular training updates (at a minimum yearly) provides opportunity to reinforce your position and keep employees up to date with new developments
  37. 37. When in Doubt, Don’t be Afraid to Ask No one can be expected to know everything about social media New networks / sites develop everyday Consumer use adapts at a breakneck pace Terms and conditions change frequently Case law is developing as we speak
  38. 38. Contact Information Jeff SchultzPartner, Armstrong Teasdale LLP 314.259.4732jschultz@armstrongteasdale.com www.armstrongteasdale.comhttp://twitter.com/JeffSchultzEsq http://twitter.com/AT_Law http://twitter.com/AT_Live http://twitter.com/AT_Innovate

×