These are the slides that were used during my keynote address at the 2014 Charleston Law Review Symposium on Social Media and the Law. The YouTube video of my keynote can be found at http://www.youtube.com/watch?v=llRz72q_cyI&feature=youtu.be

1. Social Media and the Law
2014 Charleston Law Review Symposium
Seven Stories of Social Media Legal Risk

2. Defining Social Media
• Social Media is any tool or service that uses the
Internet to facilitate conversations
• Much more than social networking

3. Social Media Covers Everything
• Began with marketing
• Obvious intersection of consumers,
content, and regulation
• Quickly grew beyond marcom
• Employment, Afterlife, Privacy, Ethics
• Copyright, Free Speech,
Crowdfunding, Rights of Publicity,
Trademarks, Terms of Service

4. Fun Social Media Statistics
• 1 in 5 couples meet online (3 in 5 gay couples)
• 1 in 5 divorces involve Facebook (not sure if connected to first stat)
• What happens in Vegas stays on Facebook, Twitter, YouTube,
Renren, Flickr, etc.
• Katy Perry, Justin Bieber, and Lady Gaga, have more Twitter
followers than the population of
– Canada
– Sweden
– Israel
– Greece
– Chile
– Australia
• Ford Explorer launch on Facebook generated more traffic than a
Superbowl ad
• YouTube is the second largest search engine in the world
• 90% of consumers trust peer recommendations; only 14% trust ads

5. The Wrong Analogy
• Wrong because this is a not a lawless area, just a
new application of existing laws

6. The Right Analogy
• Right because we have laws and agencies in
place that can adapt to this strange new world
(and technology the regulators might not
understand yet)

7. The Stories We Tell
• Social media may be about conversations but
lessons are about stories
• Here are seven stories about social media legal
risks, both present and future

8. Story 1: You Are Not Alone

9. The Honda Crosstour
• Highly polarizing design
• “81.7% of you feel the Crosstour should be killed
with fire, and just 3.1% of you think it is good
looking.” – Autoblog, Sep. 3, 2009

10. Meet Eddie Okubo
• Everything and everybody is connected
• People will view your actions negatively if you
aren‟t transparent
• It will happen before you know it

11. Story 2: What’s a Story Without a Monster?

12. The Informal Tone Beast
• Luring you into a false sense of intimacy

13. The Informal Tone Beast Attacks All
• Even professional social networking engineers
can fall victim

14. It Makes Us Forget Our Scheduled Posts…
• At a midnight showing of The Dark Knight Rises,
a gunman killed 12 and injured 70 on July 20,
2012.

15. It Makes Us Forget To Look Things Up…

16. It Makes Us Forget Our Responsibilities…
• Gene Morphis, CFO of publicly traded Francesca
Holdings Corp.
• March 7, 2012, tweeted:
• Fired on May 14, 2012 after company became
aware of his posts on May 11
• Why three days?
– It was the weekend

17. It Makes Us Think Everything Is Linkable…
• Posted the day after the Boston Marathon
bombing…

18. Story 3: Legal Weapons Are Blunted

19. Once Upon a Time…
• Coastal photos taken
by photographer
Kenneth Adelman as
part of erosion
documentation study
• Study commissioned
by California Coastal Records Project and
contained over 12,000 photographs later placed
on Pictopia.com
• This image was descriptively named Image 3850

20. The Streisand Effect is Born
• Barbara Streisand sued
photographer and site
for invasion of privacy
in 2003
• Photo downloaded six
times prior to suit, two of
those by Streisand‟s attorneys
• Within a month of the lawsuit being filed the
photo was downloaded 420,000 times
• You can read the whole lawsuit at
bit.ly/streisandlawsuit

21. The Streisand Irony
• “…the property is owned by an entity which
cannot be traced, with any certainty, back to her.”
• “…Plaintiff‟s living quarters are set back from the
brink of the cliff…In fact, to catch a glimpse of
[Plaintiff‟s living quarters] one would have to walk
a significant distance from the property either to
the north or the south.”
• “…by entering the word „Streisand‟ on the
website‟s own search engine, one is immediately
taken to the detailed picture…”

22. Streisand Case Outcome
• 45 page ruling against Streisand at
bit.ly/streisandruling
• Court embarked on research from People
Magazine (page 80 of March 9, 1998 issue) to
California coastal history of the 1850s.
• The result:

23. Not Just For Famous People
• Julie Ann Smith left the
Beaverton (OR) Grace Bible
Church with bad feelings
• Left reviews on Google,
these were removed
• She started a blog about her
experiences with the church and why she left
– “Creepy”
– “Control tactics”
• Church sued Ms Smith for $500,000 (defamation)
• Much press coverage
• Oh, and the church lost the suit

25. Story 4: Brands to People to That One Guy

26. That Guy Who Gets You Fired

27. That Guy With The Password You Fired
• While you‟re firing him…

28. That Guy Who Used the Wrong Account…

29. That Guy Who Offends on Purpose…

30. Story 5: Forget the Bridge, Burn it All

31. Meet Amy and Samy

32. They Own This…

33. And Went on This…

34. It Did Not Go Well

35. Comments Began When Episode Aired
• So Samy and Amy decided to defend themselves
on Facebook

36. And By Defend Themselves…
• I mean go nuts

37. Really Nuts

38. How Nuts? They Went After Reddit

39. Bring It On? Never Say That

40. Threaten Legal Action, That Always Works

41. WE ARE NOT FREAKING OUT

42. We Will Teach Our Family!

43. We Are Not Extraterrestrials!

44. They Took a Quick Photoshop Lesson

45. You Just Have Your Sites

46. Obviously, We Were Hacked

47. They Shut Down and Re-Opened as…

48. But They Kept The Old Attitude

49. Story 6: Blurred Lines

50. Choice of Law
• Daniel Morel v. Agence France Presse &
Washington Post
• In which a New York court interprets California
law to determine if
a French press
agency obtained
rights to a Haitian
photographer‟s
pictures under
Twitter‟s TOS

51. Morel’s Photos

52. Story 7: Social Justice

53. Social Media Not Best For Some Things
• Like finding Boston Marathon bombing suspects

54. Two Sources? Bah!

55. But Social Media Works in Some Cases…
• Let‟s meet our parties

56. Meet Sir Mix-A-Lot
• Real name Anthony Ray
• Biggest hit was “Baby Got Back”
• Won the 1993 Grammy for Best Rap Solo
Performance
– Beat out MC Hammer,
Queen Latifah, Marky
Mark, and LL Cool J
• Video only aired at
night on MTV (they
used to show music
videos)

57. Meet Jonathan Coulton
• Singer-songwriter
who first gained fame
by releasing one new
song a week
• Week 5:
– This week is a cover of Baby Got Back by Sir Mix-a-Lot (note: he is
not an actual knight). Had to activate the whole team for this one –
guitar, mandolin, banjo and even some shakers and tambourines
and other things lying around the house. I’ve wanted to cover this
song for a long time, because it is excellent – there’s a wonderful
message in there for those of you who have big butts. In the proud
tradition of many white Americans who came before me I hereby
steal and white-ify this thick and juicy piece of black culture. Watch
for my album “Jonathan Coulton Sings Songs by Black People.”

58. Meet Glee
• It‟s a show on Fox
• January 24, 2013 was the “Sadie Hawkins”
episode

59. Go To The Scene
• Let‟s listen

60. The Problem? The License
• Coulton obtained a compulsory license
• §115(a)(2) covering the scope of compulsory
licenses:
– A compulsory license includes the privilege of making a
musical arrangement of the work to the extent necessary to
conform it to the style or manner of interpretation of the
performance involved, but the arrangement shall not change
the basic melody or fundamental character of the work, and
shall not be subject to protection as a derivative work under
this title, except with the express consent of the copyright
owner.
• For Coulton to sue Fox, he has to admit
infringement

61. Social Media In Action
• Coulton found out on his blog
• Early release of tune sounded similar
• Final version sold and analyzed
• Coulton re-released his song as Baby Got Back
(In the Style of Glee)
• Amazon
– Glee: 1 star/13 (35)
– Coulton: 5 stars/21 (188)
• iTunes
– Glee: 1.5 star/2,601 (2,720)
– Coulton: 5 stars/3,310 (3,417)

62. So Many Stories
• Exciting to see it unfold with
symposiums like this

63. Questions?
• And remember, lunch is next