This document summarizes key ethical and legal issues attorneys need to consider regarding social media and copyright. It discusses how attorneys have become publishers through social media and need to understand rules of defamation, ethics, and copyright law. The document also analyzes several court cases where attorneys or clients have faced sanctions or lawsuits due to improper social media use, such as revealing privileged information or using copyrighted materials without permission.
Copyright litigation handbook contents and overviewRaymond Dowd
Litigation handbook for attorneys handling copyright infringement, copyright ownership, and copyright licensing cases. Includes Copyright Act, Federal Rules of Civil Procedure, Federal Rules of Evidence, case annotations
Morse IPO Slides Joint Defense Of Ip Litigation November 2009morsemh
Slides presented to Intellectual Property Owners Association IP Chat Channel webinar on November 4, 2009, entitled "Strategy for Defendants in Multi-Defendant Patent Cases - United We Stand?" addressing Antitrust Considerations
BlackHat USA 2009 - Your Mind: Legal Status, Rights and Protecting YourselfJames Arlen
James Arlen and Tiffany Rad
As a participant in the information economy, you no longer exclusively own material originating from your organic brain; you leave a digital trail with your portable device's transmitted communications and when your image is captured by surveillance cameras. Likewise, if you Tweet or blog, you have outsourced a large portion of your memory and some of your active cognition to inorganic systems. U.S. and International laws relating to protection of intellectual property and criminal search and seizure procedures puts into question protections of these ephemeral communications and memoranda stored on your personal computing devices, in cloud computing networks, on off-shore "subpoena proof" server platforms, or on social networking sites.
Although once considered to be futuristic technologies, as we move our ideas and memories onto external devices or are subjected to public surveillance with technology (Future Attribute Screening Technology) that assesses pre-crime thoughts by remotely measuring biometric data such as heart rate, body temperature, pheromone responses, and respiration, where do our personal privacy rights to our thoughts end and, instead, become public expressions with lesser legal protections? Similarly, at what state does data in-transit or stored in implantable medical devices continuously connected to the Internet become searchable? In a society in which there is little differentiation remaining between self/computer, thoughts/stored memoranda, and international boundaries, a technology lawyer/computer science professor and a security professional will recommend propositions to protect your data and yourself.
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Pri...Kevin Perry
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Privilege, Confidential Business Information and the Work Product Doctrine, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015
Copyright litigation handbook contents and overviewRaymond Dowd
Litigation handbook for attorneys handling copyright infringement, copyright ownership, and copyright licensing cases. Includes Copyright Act, Federal Rules of Civil Procedure, Federal Rules of Evidence, case annotations
Morse IPO Slides Joint Defense Of Ip Litigation November 2009morsemh
Slides presented to Intellectual Property Owners Association IP Chat Channel webinar on November 4, 2009, entitled "Strategy for Defendants in Multi-Defendant Patent Cases - United We Stand?" addressing Antitrust Considerations
BlackHat USA 2009 - Your Mind: Legal Status, Rights and Protecting YourselfJames Arlen
James Arlen and Tiffany Rad
As a participant in the information economy, you no longer exclusively own material originating from your organic brain; you leave a digital trail with your portable device's transmitted communications and when your image is captured by surveillance cameras. Likewise, if you Tweet or blog, you have outsourced a large portion of your memory and some of your active cognition to inorganic systems. U.S. and International laws relating to protection of intellectual property and criminal search and seizure procedures puts into question protections of these ephemeral communications and memoranda stored on your personal computing devices, in cloud computing networks, on off-shore "subpoena proof" server platforms, or on social networking sites.
Although once considered to be futuristic technologies, as we move our ideas and memories onto external devices or are subjected to public surveillance with technology (Future Attribute Screening Technology) that assesses pre-crime thoughts by remotely measuring biometric data such as heart rate, body temperature, pheromone responses, and respiration, where do our personal privacy rights to our thoughts end and, instead, become public expressions with lesser legal protections? Similarly, at what state does data in-transit or stored in implantable medical devices continuously connected to the Internet become searchable? In a society in which there is little differentiation remaining between self/computer, thoughts/stored memoranda, and international boundaries, a technology lawyer/computer science professor and a security professional will recommend propositions to protect your data and yourself.
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Pri...Kevin Perry
Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Privilege, Confidential Business Information and the Work Product Doctrine, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015
This presentation discusses the December 2010 changes to the federal rules of civil procedure regarding expert privilege and the differences between a consulting and testifying expert.
VARIOUS ISSUES AND MECHANISMS FOR SETTLEMENT OF DISPUTES IN THE ENTERTAINMENT INDUSTRY
Contact Us for Intellectual Property Services
BananaIP Counsels
Regd Office
No.40,3rd Main Road,JC Industrial Estate,
Kanakapura Road,Bangalore – 560 062.
Email: contact@bananaip.com
Telephone: +91-80-26860414 /24/34
At a recent in-house CLE event, John Sganga, Partner and the firm's Litigation Practice Group Chair, presented an intellectual property year in review discussing important cases throughout 2015.
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
This presentation by Judge Douglas H. Ginsburg (U.S. Court of Appeals for the District of Columbia Circuit and Professor of Law, George mason University) was made during the discussion “Extraterritorial reach of competition remedies” held at the 126th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/ercr.
As the legal landscape continues to evolve in terms of intellectual property law, the Los Angeles Business Journal once again turned to some of the leading IP attorneys and experts in the region to get their assessments regarding the current state of IP legislation, the new rules of copyright protection, licensing and technology, and the various trends that they have been observing, and in some cases, driving. Below is a series of questions the Business Journal posed to these experts and the unique responses they provided – offering a glimpse into the state of intellectual property law in 2014 – from the perspectives of those in the trenches of our region today.
Identifying and Beating a SLAPP Suit | 1993Dwight Merriam
Dwight Merriam, one of the country's leading land use lawyers, was quoted in the Newark Advocate on December 17, 2019 regarding so-called SLAPP suits, Strategic Litigation Against Public Participation, a technique sometimes used by aggressive developers and others Io knock down opposition. His comprehensive 1993 article on the subject remains essential reading today.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Recent Ethics and Professional Responsibility Cases (David Coale): Discussion of recent ethics and professional responsibility cases from the U.S. Court of Appeals for the Fifth Circuit, including the scope of the “attorney immunity” doctrine, when sanctions can be imposed for improper pleadings and litigation conduct, when a court’s contempt power is properly applied to the alleged violation of an injunction, and the contours of attorney-client privilege for in-house counsel.
Conflicts of Interest in Pricing (Kirk Bowman): Pricing is not always as black and white as we might think. As with the law, there are shades of gray. In this session, Kirk Bowman will explore conflicts of interest in pricing, especially as it relates to attorneys. Learn how to price your engagements based on the value you create, rather than the traditional method of hourly rates. Kirk will also discuss the ethic guidelines attorney’s face in pricing their services. This single innovation can enhance your relationship with your clients and help you avoid the ethical dilemma of thinking of your client as a number of hours per month rather than a person and business you have the privilege to serve.
Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the intellectual property law firm and its intellectual property attorneys may be found at www.klemchuk.com.
The First 30 Minutes After a Crisis: How to Improve or Kill Your Law Firm's R...Thomas Ciesielka
Scandals can be found anywhere and magnified profoundly on social media. It can range from political candidates to consumer products, and from salacious personal conduct by corporate CEOs to environmental calamities. While King Solomon wrote “there is nothing new under the sun,” today’s limitless channels of communication exponentially might challenge that statement since messages now travel at the speed of the Internet and not on handwritten scrolls. Message that impact both the reputation of the those involved in the crisis and also can create additional legal liabilities for law firms and their clients. And since a crisis can have significant legal implications, lawyers are often involved throughout the process. Most importantly, how well a crisis is managed depends both on handling the public narrative as well as legal implications.
This presentation discusses the December 2010 changes to the federal rules of civil procedure regarding expert privilege and the differences between a consulting and testifying expert.
VARIOUS ISSUES AND MECHANISMS FOR SETTLEMENT OF DISPUTES IN THE ENTERTAINMENT INDUSTRY
Contact Us for Intellectual Property Services
BananaIP Counsels
Regd Office
No.40,3rd Main Road,JC Industrial Estate,
Kanakapura Road,Bangalore – 560 062.
Email: contact@bananaip.com
Telephone: +91-80-26860414 /24/34
At a recent in-house CLE event, John Sganga, Partner and the firm's Litigation Practice Group Chair, presented an intellectual property year in review discussing important cases throughout 2015.
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
This presentation by Judge Douglas H. Ginsburg (U.S. Court of Appeals for the District of Columbia Circuit and Professor of Law, George mason University) was made during the discussion “Extraterritorial reach of competition remedies” held at the 126th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/ercr.
As the legal landscape continues to evolve in terms of intellectual property law, the Los Angeles Business Journal once again turned to some of the leading IP attorneys and experts in the region to get their assessments regarding the current state of IP legislation, the new rules of copyright protection, licensing and technology, and the various trends that they have been observing, and in some cases, driving. Below is a series of questions the Business Journal posed to these experts and the unique responses they provided – offering a glimpse into the state of intellectual property law in 2014 – from the perspectives of those in the trenches of our region today.
Identifying and Beating a SLAPP Suit | 1993Dwight Merriam
Dwight Merriam, one of the country's leading land use lawyers, was quoted in the Newark Advocate on December 17, 2019 regarding so-called SLAPP suits, Strategic Litigation Against Public Participation, a technique sometimes used by aggressive developers and others Io knock down opposition. His comprehensive 1993 article on the subject remains essential reading today.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Recent Ethics and Professional Responsibility Cases (David Coale): Discussion of recent ethics and professional responsibility cases from the U.S. Court of Appeals for the Fifth Circuit, including the scope of the “attorney immunity” doctrine, when sanctions can be imposed for improper pleadings and litigation conduct, when a court’s contempt power is properly applied to the alleged violation of an injunction, and the contours of attorney-client privilege for in-house counsel.
Conflicts of Interest in Pricing (Kirk Bowman): Pricing is not always as black and white as we might think. As with the law, there are shades of gray. In this session, Kirk Bowman will explore conflicts of interest in pricing, especially as it relates to attorneys. Learn how to price your engagements based on the value you create, rather than the traditional method of hourly rates. Kirk will also discuss the ethic guidelines attorney’s face in pricing their services. This single innovation can enhance your relationship with your clients and help you avoid the ethical dilemma of thinking of your client as a number of hours per month rather than a person and business you have the privilege to serve.
Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the intellectual property law firm and its intellectual property attorneys may be found at www.klemchuk.com.
The First 30 Minutes After a Crisis: How to Improve or Kill Your Law Firm's R...Thomas Ciesielka
Scandals can be found anywhere and magnified profoundly on social media. It can range from political candidates to consumer products, and from salacious personal conduct by corporate CEOs to environmental calamities. While King Solomon wrote “there is nothing new under the sun,” today’s limitless channels of communication exponentially might challenge that statement since messages now travel at the speed of the Internet and not on handwritten scrolls. Message that impact both the reputation of the those involved in the crisis and also can create additional legal liabilities for law firms and their clients. And since a crisis can have significant legal implications, lawyers are often involved throughout the process. Most importantly, how well a crisis is managed depends both on handling the public narrative as well as legal implications.
An overview of the way the law profession's rules of professional responsibility/conduct apply to the use of social media platforms and tools, including advertising, searching, and use of social media information in investigation, discovery, and at trial.
Social Lawyers (slide deck to accompany hypotheticals)Nicole Hyland
This is an alternative version of my Social Lawyers slide deck. It is formatted to accompany a series of social media and legal ethics hypotheticals, which can be found here: http://www.jdsupra.com/legalnews/hypotheticals-legal-ethics-and-social-57583/
Legal Issues for Bloggers by Donald R. Simon, J.D/LL.M.Steven Chau
Bloggers face a lot of legal issues. More and more citizen journalists are facing defamation and invasion of privacy lawsuits. The presentation will discuss some of the legal issues confronting bloggers, how to avoid common pitfalls, and how to ensure legitimate speech is protected.
This presentation was presented by Donald R. Simon, J.D./LL.M. at the SMCKC March'2011 Breakfast. Donald is a former intellectual property attorney and now business consultant. His firm concentrates in assisting media- and arts-based entrepreneurs.
don@simonbizconsulting.com
Twitter: @simonbizconsult
Web: www.simonbizconsulting.com
Blog: www.ThinkBigKC.co
Survivimg the great Bank Robbery
Burgeoning NPAs of banks can be tackled by creating a "bad" bank and allowing distressed compnaies to be restructed by specialised experts from the private sector
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Ray dowd copyright, ethics & social media- what the connected lawyer needs to know- csusa presentation 2.16
1. Copyright, Ethics & Social
Media: What the Connected
Lawyer Needs to Know
The Copyright Society of the USA
Mid-Winter Meeting 2013; Omni Hotel Downtown Austin
Saturday, February 16, 2013
Raymond J. Dowd,
Author – Copyright Litigation Handbook (West 2012-2013)
Partner-Dunnington, Bartholow & Miller LLP
New York, NY
2. How is the “connected attorney”
different from the traditional
attorney?
3. Prior to the 1976 Copyright Act, the
subject matter of copyright was
narrow, intentional
4. After the 1976 Act, every work of
authorship fell into the copyright
matrix
5. And the World Wide Web made global
publication instantaneous and
unavoidable
8. You are a blogger
- You are publishing text, photos and audio on
the World Wide Web
- You are taking screen shots, cutting, pasting,
grabbing and borrowing
- You are not paying anyone
- You are endorsing all of your friends
- Everything is free, easy and cool
- Except you can be sued for defamation
- You can lose your clients and license
- You can violate ethics rules
- You can lose your privacy and be hunted down
33. Moving from Attorney to
Advertiser/Publisher in the Matrix ..
What do you need to know?
34. Society of Professional Journalists
Code of Ethics
• Seek Truth and Report It
▫ Journalists should be honest, fair and courageous in
gathering, reporting and interpreting information.
• Minimize harm
▫ Ethical journalists treat sources, subjects and
colleagues as human beings deserving of respect.
• Act Independently
▫ Journalists should be free of obligation to any interest
other than the public’s right to know.
• Be Accountable
▫ Journalists are accountable to their readers, listeners,
viewers, and each other.
35.
36. Farah v. Esquire Magazine, Inc., 863
F.Supp.2d 29 (D.D.C. 2012)
- Esquire blog “parody” interview with “birther”
book author claiming that author withdrew book
and refunded money after Obama published
long-form birth certificate
- $100 million defamation/false light lawsuit
- Qualified immunity by Anti-SLAPP suit –
advocacy on public interest issue
- Satire on a matter of public concern not
defamation
37. Blogs: more play for untrue speech?
• while generally, “online speech stands on the
same footing as other speech,” In re Anonymous
Online Speakers, 661 Fed.Appx. 1168, 1173, No.
09–71265, 2011 WL 61635, at *2 (9th Cir. Jan. 7,
2011), blogs are a subspecies of online speech
which inherently suggest that statements made
there are not likely provable assertions of fact
Obsidian Fin. Group, LLC v. Cox, 812 F. Supp.
2d 1220, 1223 (D. Or. 2011)
38. FTC Publishes Final Guides Governing Endorsements,
Testimonials
http://www.ftc.gov/opa/2009/10/endortest.shtm
• The Federal Trade Commission today announced that it has approved final
revisions to the guidance it gives to advertisers on how to keep their
endorsement and testimonial ads in line with the FTC Act.
… long standing principle that “material connections” (sometimes payments
or free products) between advertisers and endorsers – connections that
consumers would not expect – must be disclosed. These examples address
what constitutes an endorsement when the message is conveyed by bloggers
or other “word-of-mouth” marketers. The revised Guides specify that while
decisions will be reached on a case-by-case basis, the post of a blogger who
receives cash or in-kind payment to review a product is considered an
endorsement.
Thus, bloggers who make an endorsement must disclose the material
connections they share with the seller of the product or service.
40. If you are not a journalist
• Can you protect your sources?
41. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 979-980, 365 U.S.App.D.C. 13,
28 - 29 (C.A.D.C., 2005)
• .The Supreme Court went on to observe that “freedom of the press is
a ‘fundamental personal right ... not confined to newspapers and
periodicals. It necessarily embraces pamphlets and leaflets .... The
press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion.’ ” Id.
(quoting Lovell v. Griffin, 303 U.S. 444, 450, 452, 58 S.Ct. 666, 82
L.Ed. 949 (1938)). Are we then to create a privilege that protects
only those reporters employed by Time Magazine, the New York
Times, and other media giants, or do we extend that protection as
well to the owner of a desktop printer producing a weekly newsletter
to inform his neighbors, lodge brothers, co-religionists, or co-
conspirators? Perhaps more to the point today, does the privilege
also protect the proprietor of a web log: the stereotypical “blogger”
sitting in his pajamas at his personal computer posting on the World
Wide Web his best product to inform whoever happens to browse
his way? If not, why not?
42. Attorney Ethics: Publicity Regarding
Civil Matters and Attorney/Client
Privilege
• Should you publish information regarding a civil
matter?
43. Know the Law: N.Y. Rule of Professional
Conduct 3.6: Trial Publicity
a) A lawyer who is participating in or has participated
in a criminal or civil matter shall not make an
extrajudicial statement that the lawyer knows or
reasonably should know will be disseminated by
means of public communication and will have a
substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.
b) [Subsection (b) sets forth a variety of specific types of
statements which are likely to prejudice an
adjudicative proceeding. Attorneys who are
contemplating making statements about a pending
case should familiarize themselves with this
subsection.]
44. N.Y. Rule of Professional Conduct 3.6:
Trial Publicity (Cont.)
c) Provided that the statement complies with paragraph (a), a lawyer may
state the following without elaboration:
• The claim, offense or defense and, except when prohibited by law, the
identity of the persons involved;
• Information contained in a public record;
• That an investigation of a matter is in progress;
• The scheduling or result of any step in litigation;
• A request for assistance in obtaining evidence and information necessary
thereto;
• A warning of danger concerning the behavior of a person involved, when
there is reason to believe that there exists the likelihood of substantial harm
to an individual or to the public interest; and
• In a criminal matter:
o The identity, age, residence, occupation and family status of the accused;
o If the accused has not been apprehended, information necessary to aid in
apprehension of that person;
o The identity of investigating and arresting officers or agencies and the length of
the investigation; and
o The fact, time and place of arrest, resistance, pursuit and use of weapons, and a
description of physical evidence seized, other than as contained only in a
confession, admission or statement.
45. Blogging 101 The Legacy of Jim Letten
When Assistant U.S.
Attorney Sal Perricone had
been commenting on
www.nola.com , the New
Orleans paper The Times-
Picayune’s online affiliate
site, it led to quite the
scandal. And the eventual
resignation of US Attorney
Jim Letten.
46. The Litigation Privilege
Lawyers are absolutely immune from civil liability for statements
or conduct that may have injured, offended, or otherwise
damaged an opposing party during the litigation process. This
protection, often referred to as the "litigation privilege” shields a
litigator regardless of malice, bad faith, or ill will of any kind. See,
e.g., Sinrod v. Stone, 20 A.D.3d 560, 561 (2d Dep’t, 2005)
(“Statements made by parties, attorneys, and witnesses in the course
of a judicial or quasi-judicial proceeding are absolutely privileged,
notwithstanding the motive with which they are made, so long as they
are material and pertinent to the issue to be resolved in the
proceeding”); Long v. Marubeni America Corp., 406 F.Supp.2d 285,
294-295 (S.D.N.Y., 2005) (litigation privilege extends to absolute
privilege for out-of-court assertions, when made to interested parties,
and that fairly reflect a party's in-court litigation position).
47. The Litigation Privilege (Cont.)
• The litigation privilege has been codified in New
York as McKinney's Civil Rights Law § 74: “A
civil action cannot be maintained against any
person, firm or corporation, for the publication
of a fair and true report of any judicial
proceeding, legislative proceeding or other
official proceeding, or for any heading of the
report which is a fair and true headnote of the
statement published . . . .”
48. Exception to the Litigation Privilege
• The litigation privilege does not apply where
there has been a deliberate institution of
baseless litigation for the precise purpose of
fabricating a reporting privilege. Williams v.
Williams, 23 N.Y.2d 592, 599 (1969).
49. Attorney-Client Privilege Concerns
• Confidential, attorney-client privileged information
is generally protected from discovery. However, the
privilege can be voluntarily waived by the holder of
the privilege when the confidential information is
disclosed to third parties.
• Accidental or inadvertent disclosure is usually held
to be a complete waiver. See, e.g., Underwater
Storage Underwater Storage Inc. v U.S. Rubber
Company, 314 F.Supp. 546 (D.D.C. 1970).
50. Attorney- Client Privilege Concerns
(Cont.)
Implied privilege waiver has arisen in social media. In
Lenz v. Universal Music Corp., 2010 WL 4789099
(N.D.Cal. 2010), an employee, via e-mails, a blog, and
Internet chat sessions, disclosed information about
her attorneys’ litigation strategy. Statements made in
social media included a statement that her attorneys
were “pretty well salivating over getting their teeth
into UMG [the employer] again.” This statement
waived the privilege with respect to why the lawsuit
was commenced. Employee disclosed in a Gmail chat
that her attorneys hoped that opinion would clarify a
“cloudy” decision. This statement waived the privilege
relating to the attorneys’ legal strategies.
51. Duty of Impartiality – Hearing Officer
Stengle v. Office of Dispute Resolution, 631 F. Supp. 2d
564, 577 (M.D. Pa. 2009)
Regardless of whether Stengle's blog activity qualified as “advocacy,”
her conduct in that regard had the potential to raise questions as to
her impartiality and indeed did just that. Plaintiff acknowledges that
two attorneys, […] stated that they intended to file formal recusal
motions because they questioned Plaintiff's ability to be impartial in
light of her blog entries. …While those attorneys never filed the
contemplated motions, that fact does not alter the essential inference
to be drawn from this factual array. Again, actual disruptiveness need
not occur; ODR Defendants need only target potential disruptiveness.
From these facts, one can readily infer that Plaintiff's blog had the
potential to induce recusal motions from those who came before her in
her hearing officer capacity. If such a motion were to be filed, either
one of two things could happen. Plaintiff could recuse herself, or she
could elect to deny the motion and hear the case to its conclusion. In
either instance, governmental efficiency would be adversely affected.
53. The Lesson
Social media and related technology provide a
host of ways to disclose information to unintended
audiences. Clients and attorneys should take care
to protect the attorney-client privilege by ensuring
that privileged information is not accidentally
disclosed.
54. Corporate Information Posted on Blogs
• Blogging or posting on to other
social networking sites about
work-related information has
cased a lot of uproar
55. How Can Twitter affect the Courtroom?
• Jurors tweeting about the
trials they are a part of
• Posting photos of celebrities
involved in cases
56. Social Media & Your Location
Geolocation
• Logging onto your Facebook,
Twitter, FourSquare, Apps on
smartphones all can help to
pin-point your location
• Law enforcers around the
country are using geolocation
to track down criminals that
are using social media during
their crime sprees
57. Facebook & the courtroom
Courtroom affects:
• “friending” opposing
counsel or the judge
• Chatting about what is
going on in trial
• Posting to Facebook or
Twitter revealing
evidence regarding
character or credibility
58. Discovery of Social Networking Sites:
Private Accounts
• SNS content is not shielded from discovery
simply because it is “locked” or “private”
• Courts have held that a requesting party is not
entitled to access all non-relevant material on an
SNS, but merely locking a profile from public
access does not prevent discovery either.
59. Social Media is Discoverable
• Social media is generally discoverable
• Include social media in document preservation demands
and in document preservation client memos
• Social media websites are ESI and should be handled as
such
• Various tools to collect, process, and review social media
• Preserve chain of custody
60. Attorney Ethics and Social Media
Discovery
• Lester v. Allied Concrete Company
• Attorney fined over $500K for telling client to delete
negative information from Facebook. Client independently
sanctioned $180K for following attorney’s advice.
• Zimmerman v. Weis Markets
• Anyone posting photos or information to a public site has no reasonable
expectation to privacy. Plaintiff ordered to provide log-in information
and passwords.
• McMillen v. Hummingbird Speedway
▫ Plaintiff ordered to turn over social media usernames and passwords.
Plaintiff claimed injury related to a car race. But Facebook page referenced
attending another post-incident race.
▫ “unrealistic to expect that such disclosures would be considered
confidential.”
61. Fair Use Analysis
• “fair use of a copyrighted work … for purposes
such as criticism, comment, news reporting,
teaching (including multiple copies for
classroom use), scholarship, or research, . . .
is not copyright infringement.”
17 U.S.C. § 107.
62. Use of Copyrighted Materials: Fair Use
Test
• Purpose and character of the use, including
whether use is commercial or non-profit
• Nature of the copyrighted work
• Amount and substantiality of portion used in
relation to copyrighted work as a whole
• The effect of the use upon the potential market
for or value of the copyrighted work
63. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
• A. Purpose and Character of the Use
• The court finds that the purpose and character of Nelson's
blog is both commercial and educational in nature. His blog
on the Las Vegas housing market is designed to provide
important information to potential and current homeowners
and provide recent developments in the industry as well as
Nelson's opinion on the state of the market as whole.
However, the underlying purpose of providing this
information is to create business for himself as a duly licensed
realtor operating in that market. Thus, although Nelson's blog
gathers varied information and provides it to the public free of
charge, the purpose of providing that information is
commercial in nature. Therefore, the court finds that this
factor weighs against the fair use of the copyrighted
information
64. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
B. Nature of the Work
• The nature of the Work is split between factual news
reporting and reporter commentary. The portion
copied by Nelson contains factual news reporting
about a new federal housing program which
supports Nelson's fair use of the copyrighted
information. See e.g., Los Angeles News Service v.
CBS Broadcasting, Inc., 305 F.3d 924 (9th
Cir.2002) (re-publication of a video depicting a
news report was a fair use because it was
informational rather than creative).
65. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
• C. Amount of Copyrighted Work Used
• In his blog, Nelson reproduced only the first
eight sentences of a thirty sentence news article.
The court finds that this use weighs in favor of a
fair use of the copyrighted material. See e.g, CBS
Broadcasting, Inc., 305 F.3d at 941 (copying
only as much as necessary in a greater work to
provide relevant factual information weighs in
favor of fair use).
66. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
• D. Effect on Potential Market for Copyrighted
Work
• The court finds that Nelson's use of the copyrighted
material is likely to have little to no effect on the market
for the copyrighted news article. Nelson's copied portion
of the Work did not contain the author's commentary. As
such, his use does not satisfy a reader's desire to view
and read the article in its entirety the author's original
commentary and thereby does not dilute the market for
the copyrighted work. Additionally, Nelson directed
readers of his blog to the full text of the Work. Therefore,
Nelson's use supports a finding of fair use.