Math Castle by Gabriel Molina from Flickr (Creative Commons License)
Earlier this week I did an interview for Casual Fridays with Tyler Anderson about social media law. I had a great time talking about copyright, trademark, and the FTC rules that apply to social media and the internet in general.
Whenever I do a Q&A on social media law, I tend to get the same types questions over and over again:
Can I use any image I find online if I give an attribution and a link to the original? What if I’m not making money off it?
I just want to use 10 seconds of a song. Is that ok?
If someone sends me a photo, I own it, right? I can do anything I want with it, right?
How much do I have to change someone else’s work to qualify for fair use?
As I listened to Tyler’s questions, I realized that he and most social media marketers and entrepreneurs are looking for clear answers. They want things to be as black-and-white as possible, but unfortunately the law is filled with shades of gray, especially in emerging area of law where the technology is advancing faster than the law can keep up.
The best a person can do is to be aware of the basics of copyright, trademark, contract, and privacy laws and assume that there are no easy answers to their questions, even when it seems simple. I also recommend that business owners meet with their lawyers once a year (just like you meet with your accountant) to review their business and standards of practice to make sure that your business is in compliance with the law.
My Badge from Periscope Community Summit – September 2015
I had the pleasure of being on a panel with Mitch Jackson to discuss the legalities of live-streaming video apps at the Periscope Community Summit last week in New York. We had a blast. Special thanks to the organizers of this event.
The Periscope user community is so friendly and accepting. I hope we’re invited back to the next Periscope Community Summit in San Francisco this winter. Here are some of the take-away lessons from our panel:
There is No “Undo” Button. Unlike other social media platforms where you can edit your work before you release it, Periscope videos are live. If you are someone who tends to embellish, be excessively emotional, or otherwise get carried away, perhaps you shouldn’t ‘scope without thinking your ideas through. Because once you put something out there, you can’t take it back and you may not be able to apologize your problems away.
It’s Probably Illegal to ‘Scope that Concert. Many artists don’t allow photos or videos during their shows. This also applies to Periscope and other live video apps. Ditto for professional sports. Read the back of your ticket carefully and be prepared to be kicked out if you do it.
Be Careful if you do Karaoke on your ‘Scope. It seems like a lot of people sing when they are on Periscope, whether they are singing to a backing track or along with a song. When you buy a CD or an mp3 of a song, you are usually making a purchase for individual use and enjoyment. If you play that song on Periscope, you’ve created a public performance, which usually requires a separate license. If you use Periscope to promote yourself as a musician and you’re doing covers, you should look into buying a license from the appropriate source like BMI or ASCAP.
Playing Clips with Commentary is Probably Ok. If you review books, music, movies, and/or video games on your ‘Scope and you want to play audio or video clips of whatever you’re reviewing, that’s likely permissible under the fair use provision of the Copyright Law. This is particularly true if you’re adding your original thoughts on the topic and you aren’t a substitute for the media you’re discussing.
A Word of Warning: Whoever owns the copyright in a work has the exclusive right to decide where and when the work will be copied, distributed, displayed, and performed. If they suspect that you are violating their rights on your ‘Scope, they will decide if and how they will lay the smack down on you for violating their rights. This could be anything from a cease and desist letter to a lawsuit in federal court.
As always, these are my two rules of thumb for staying out of trouble on the internet:
Don’t post anything online that you wouldn’t put on the front page of the newspaper.
Assume that everything you post or broadcast online will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want one of those people to see what you’re thinking about posting, don’t share it (regardless of your privacy settings).
Hacker by Zodman from Flickr (Creative Commons License)
Did you see this social media experiment by Coby Persin where he pretends to be a 15 year-old boy? He approached a handful of 12-14 year-old girls online and invited them to meet in person. In each situation the parents were in on the act and all of them were convinced that their daughter’s wouldn’t accept the invitation, but each girl did – meeting him at a park, inviting him to their house, and getting into his van.
This video was instantaneously popular when it came and it’s had millions of hits, but I waited until now to talk about it, because this isn’t a one-and-done topic. This is a conversation parents need to be having with their kids on an ongoing basis about talking to people online and crossing the line from online interaction to meeting in the real world.
I have always recommended that parents be on the same social media platforms as their kids so they can monitor what they’re children are doing online. Parents should also know the passwords for their kids’ phones so they can check their text messages and photos. (And I’m an advocate of teens having some privacy, but it shouldn’t be a free-for-all.) After seeing this video, I have a few more suggestions for parents to protect their kids online.
1. Be Aware of Who your Kids are Talking to Online.
Just like you have at least a passing familiarity about who your kid knows at school and in their extracurricular activities, you should talk with your kids about who they talk to online and via text messages. Know who is an influence in their lives. If they mention someone new or become more secretive, that should give you a reason to probe deeper into what’s going on. It could be standard teenage rebellion, but it could be a reason for concern.
2. Remind your Kids: “Don’t Befriend Strangers Online.”
I have a personal rule – if you’re not my friend in real life, you don’t get to be my “friend” on Facebook. Anyone can message me (because I use social media professionally) but that’s where I draw the line. I recommend the same rule for kids. The fact that someone looks pretty or appears to be a friend of a friend is not a good enough reason to have an ongoing connection. They may have a conversation because they’re fans of the same thing or in a Facebook group, but that shouldn’t be enough to allow that person more than surface access to you.
3. Teach your Kids: “People Present an Altered Self Online.”
I believe that most people are good and have good intentions; however, when it comes to the internet, everybody lies. Some people present their best self while others blatantly present a false self. Think of everyone online as a persona more than a person – at best you’re only seeing one side of them. Just like you shouldn’t compare your body to airbrushed fashion models, don’t compare yourself to someone’s posts online.
Keep the conversation about online safety going. Show your kids Coby Persin’s video and TV programs like To Catch a Predator and talk about the fact that not everyone is what they appear to be in real life compared to what they say online. Every teenager should read and own The Gift of Fear by security expert Gavin de Becker before they get their driver’s license. (I am not a paid spokesperson for Gavin de Becker. I’m just a fan of his work.)
Internet safety is a complicated topic. If you want to chat with me more, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.
No Pants 2015 – Photo by Devon Christopher Adams, used with permission
Here’s the scenario: You’re out to dinner with a group of friends. You ask your server to take a picture of your group with your phone. Your server obliges. The image is on your device; but who owns the copyright – you, the server, or the restaurant?
To get a copyright, you need an original work of authorship that is fixed in a tangible medium. Taking a photograph of a group of people constitutes an original work fixed in a tangible medium, even when it’s just a digital file on your phone. The copyright holder has the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. This person has these rights the moment a work is created – they don’t have to register their work with the U.S. Copyright Office to obtain these rights.
Given this information, who owns the copyright in this situation?
Is it You?
You orchestrated the photo and it’s on your phone. You may be the only one who can physically copy, distribute, and use the photo – at least in regards to the first time it appears away from your device. I can’t say for certain that the law would say you’re the copyright holder since you didn’t physically push the button to create the photo, it’s unlikely that anyone would challenge you for copyright rights.
Is it the Server?
If it wasn’t for the server, this photo as it is wouldn’t exist. From that perspective, the server could argue that he/she owns the copyright since he/she pushed the button that created the image.
Is it the Restaurant?
If your job involves creating intellectual property, your employer is the author and owner of all the intellectual property you create while performing your job tasks. However, a server’s job isn’t to create intellectual property; their job is serving food and providing customer service. The restaurant probably doesn’t have any claim to the copyright in the image.
A restaurant may have policy on their social media profiles or posted in the restaurant that says you grant them a license to use any content you post about them. If you post the image online, they may be able to use the image without asking for additional permission, but they still don’t own the copyright.
So who’s the copyright holder – the server or the person who owns the camera? I’m not sure. I’d have to evaluate the specific facts of the situation. But here’s my question: does it matter? What is the likelihood that there are going to be problems related to this image? Will the server ever see or care if you post the photo? Probably not. And even if they do, I suspect he/she won’t care.
Copyright is a complicated issue, especially when it involves the internet. If you want to chat more about this topic, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.
Puzzle by Andreanna Moya Photography from Flickr (Creative Commons License)
I have had a lot of different thoughts about the recent hacking of the Ashley Madison website – both as a lawyer and as a person. Ashley Madison is a website geared towards helping people participate in infidelity. They apparently have over 37 million users. According to NPR, the company suspects it was an inside job. Allegedly, whoever did this threatened to release the identity of its users if the company doesn’t take down the website.
As a social media lawyer, I am against hacking. Whenever I work with a company on their website, I always ask what security measures they are taking to protect their users’ information, and I encourage them to explore whether they need cyber liability insurance. Conversely, people need to remember that there is no expectation of privacy in anything they post on the internet, regardless of their privacy settings. There is always a risk that they could be unmasked, which could lead to social, professional, and legal consequences.
Do I believe this hacker deserves to be punished? Yes. If this person has an issue with what this website does, assuming this was perpetrated by an employee, they should quit their job. Being personally morally opposed to a company is not a valid reason to potentially jeopardize millions of people’s lives.
Additionally, I am a huge advocate of everyone leaving each other alone (with a few exceptions related to safety and public policy). Stay out of other people’s relationships that don’t involve you. I have no idea what these 37 million people were doing on Ashley Madison. I suspect some of them were there with the consent of their significant other as part of an open relationship arrangement. Some people may be allowed to cheat as long as they do it discreetly. I wouldn’t be surprised if there are partners where both people have profiles on this site. The only thing I know for sure, is that I don’t care about what these consenting adults do in the privacy of their own lives.
Part of what makes this situation so newsworthy is that it involves infidelity, and it forces us to acknowledge on some level that not everyone believes in or practices monogamy. This isn’t a legal issue; it’s a personal choice. And the only people who deserve a say on these decisions are the other people who are directly impacted (meaning that person’s significant other and possibly children). The fact that outsiders are outraged by these beliefs and activities is irrelevant.
I know this is a hot button topic for a lot of people, and I am open to continuing the conversation in the comments below, on Twitter, Facebook, YouTube, or LinkedIn, or you can contact me directly.
Mirror Image by The Joneses from Flickr (Creative Commons License)
I was on Periscope the other night, talking with people about the legal implications of using live video apps, when an awful thought struck me:
You know someone is going to use Periscope for evil.
I got a sinking feeling in the pit of my stomach that sometime (probably soon) someone is going to use Periscope or a similar app to share a live broadcast of a suicide, sexual assault, or other equally horrendous activity.
I hate that horrible things like this happen and that anyone might think that it’s a good idea to broadcast it to the entire internet-accessible world. I also hate how powerless I am to stop these people from doing things like this. It’s like a train wreck, and I see it coming but because I don’t know when or where it will happen, there is almost nothing I can do to stop it.
The only thing I can think to do is create a post like this that will hopefully raise people’s awareness so that if you see a bad act in the works and you are in the position to take an action to stop or prevent it, please please please do it. Do not stand idly by when there’s a chance that you could prevent harm to another.
If you see a crime being committed on a live video app, report it immediately to the administrators of the app and as well as law enforcement. If you don’t know where the act is taking place, report it to the FBI.
Two of the reasons I became a lawyer are I like to help people and I like to solve problems. It’s so frustrating to find myself in situations where I feel like there’s nothing I can do to help a situation.
Part of being a social media lawyer means I have to keep up on what people are doing online and could be doing online. The downside of this is I have to think about these worst-case scenarios and accept that it’s more likely than not that at least one of them will come to fruition.
Vents by SecretLondon123 from Flickr (Creative Commons License)
Have you tried Periscope? It’s one of the new live streaming apps where you can let everyone into your world and they can post comments and questions. I’m on it. It’s pretty fun – except when it overheats my phone.
Of course, being a social media lawyer, I started thinking about what types of legal hot water someone could get into using this or any other live video app. Here’s my preliminary list:
Copyright
You own the content you post via Periscope, but you grant Periscope and anyone who has access to it permission to use it.
An artist may be upset with you if you use Periscope to display, distribute, or perform their work without their permission – i.e., if you’re playing someone’s song, doing a dramatic (or not so dramatic) reading, or showing someone’s art (even with an attribution).
Trademark
If you’re using Periscope to talk about products, make sure you’re not confusing people by giving the impression that you represent the company.
Federal Trade Commission Rules
If you are lucky enough to have sponsorship or otherwise be compensated for reviewing products, make sure you disclose that too. If you’re doing reviews on periscope, you’re legally required only to give truthful and accurate reviews of products and services. Otherwise, the FTC could fine you up to $11,000.
Trade Secrets
Every company has secrets that give them a competitive advantage. Make sure you don’t accidentally disclose your company secrets on your videos.
Privacy
Although there is no expectation of privacy in anything you do in public, there are a few exceptions for bathrooms, changing rooms, medical offices, lawyers’ offices, as well as within the walls of your home. Be thoughtful and respect full when it comes to shooting videos of others.
Remember, you have no expectation of privacy in anything you post online. Just like people have been fired for other social media posts, you can be fired for a Periscope video. You could also do tremendous reputational harm to yourself.
Defamation
I can foresee people using Periscope to vent when they are angry. Be careful that you don’t cross the line and tell a lie about another person. Even if you didn’t intend to tell a lie, you could still face a lawsuit for defamation. If you are especially upset, it may be best to wait 24 hours to calm down and verify your information before talking about the situation on live video. Think before you speak.
These legal issues apply to all live streaming video apps so be careful before you jump on your virtual soapbox. The FCC does not regulate online streaming video, so there are no “deadly words,” but there are also no 7-second delays or buttons to bleep you out.
These are my rules of thumb when it comes to posting anything on the internet:
Don’t post anything online that you wouldn’t put on the front page of the newspaper.
Assume everything you post will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want to one of those people to see what you’re thinking about posting, don’t say it.
Anthony Elonis was previously convicted for violating a federal law for posting threatening messages on his own Facebook page. The court that convicted him did so based on the negligence standard, which is whether a reasonable person would interpret his statements as threats.
The Supreme Court ruled that the lower court used the wrong standard in making its decision. A court can’t use the reasonable person standard to decide cases like this – it has to be higher standard than that.
So what happens now? The Supreme Court sent the Elonis case back down to the lower court. The lower court will have to decide whether it should apply the recklessness standard or whether it should examine Elonis’ intent behind the posts in question.
What does this mean for other cases, perhaps those involving domestic violence or cyber harassment? We’ll see. All we know now is that the court has to apply a higher standard than simply asking whether a reasonable person who interpret a statement as a threatening. We will have to wait and see what standard will ultimately apply.
Do I think the Supreme Court made the right decision? Yes. Words are clumsy beasts, especially on social media where we deal with words without inflection and non-verbal cues to decipher what the speaker is saying. I don’t want to see people punished for being inarticulate when exercising their First Amendment right to free speech. We need to examine the statement in the context in which it was made when determining whether a statement violates a criminal law.
If you want to chat more about free speech and the internet, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.
Graffiti by Alberto Garcia from Flickr (Creative Commons License)
This is a question I’ve been getting more frequently lately – people asking about the legalities of posting another person’s personal information on the Internet, sometimes referred to as doxing. And of course as any regular reader would know, the answer to every legal question is, “It depends.”
If you have shared your information with others in a public place whether it’s through a directory like the white pages or informally through social media, there may be nothing you can do to stop somebody from sharing information that you have previously freely shared with the public. Please note, regardless of your privacy settings, there is no expectation of privacy in anything you post on social media. It may be very easy for someone to piece together your name, your hobbies, where you work, what city you live in, and information about your family from posts and pictures you posted online. Look how easy it was for Jack Vale to surprise and frighten people based on what they posted on Instagram.
Conversely, there may be situations where somebody releases your private personal information, such as your unlisted phone number, your social security number, or other information that any reasonable person would know you would want to remain confidential. You are state may have a law against the public release of private information that you could use to get compensation from the person who shared your information. Depending on the circumstances and your local laws, sharing your personal information may be a type of harassment. If you think you’ve been the victim of cyberharassment, please contact your local law enforcement agency for assistance.
My advice is, “Think before you post.” Never put anything on the internet that you wouldn’t put on the front page of the newspaper. This rule applies even if you think you’re posting anonymously or with an alter ego because there is always a risk that you could be unmasked. In addition to being careful about what you post online, be careful about what information you share with others both verbally and in writing. Also be careful about who you let use your computer or phone if you have information on it that you don’t want to get out, or else you might find yourself in a similar situation as a kind teacher who let students use her cell phone. They repaid her kindness by sharing the intimate photos they found on it.
Clubbin’ by rudlavibizon from Flickr (Creative Commons License)
For those of you who don’t know, The Dirty is a website where a person can post “dirt” about another person. It’s a website where you can post celebrity sightings, make fun of people, and call out somebody for cheating on you, etc. The purpose of the site, from what I can tell, is to provide people a forum to post truthful stories and others can read and post comments about them.
As a social media attorney, I regularly get calls and emails from people who claim there is a false post about them on The Dirty or a similar site and they want me to get it removed. Many of these people don’t want to get the police involved, file a lawsuit, or pay a lot of money to make this happen. I think a lot of them hope that a letter from a lawyer would be sufficient to get a post removed. Sometimes that works, but sometimes that is not the case – especially when it comes to The Dirty.
The people who run The Dirty and their attorney understand the First Amendment. They tell their users only to post truthful information, but for the most part, they can’t tell when someone is telling the truth or not in a post. If the poster says what they wrote is true and the person they wrote about says it’s not, how would the people who run the website know who is telling the truth? The Dirty gets thousands of requests from people claiming that a post on the site contains lies about them. With few exceptions, they won’t remove a post simply because you asked them to.
I’ve never met The Dirty’s attorney in person, but we’ve exchanged several emails. My conversations with him tell me that he is a kind and thoughtful man and also a very good attorney. He won’t tell his client to remove a post just because a person is upset that a story about them is on the site or because he gets a demand letter from that person’s attorney; however, he will comply with court orders to remove material, which usually requires some type of injunction or prevailing in a defamation, invasion of privacy, or similar lawsuit. The Dirty also appears to have respectful policies related to revenge porn and false posts about an individual having an STD.
When I meet with someone when I meet with someone who claims to be the victim of defamation and/or invasion of privacy on one of these sites, I often have to inform them that the law doesn’t care about what they believe or even what they know; the law cares about what you can prove. When it’s a case of he said versus she said, there is often not much I can do. Yes, my client could sue for defamation; however, if the other party doesn’t have any money, it’s usually not worth pursuing.
If my client feels like they are the victim of cyberharassment or revenge porn, I refer them to the police. Cyberharassment and revenge porn are crimes and there is a lot more information that law enforcement can get from a website related to a criminal case than a lawyer can get access to during a civil lawsuit.
