A discussion of some of the most common legal issues that arise in the "social" web environment. Given at Social Media Club Detroit's February meeting.

1. Law and the Social Web Karen Evans, JD

2. Disclaimer Photo: Nikkitambo via flickr http://www.flickr.com/photos/nikkitambo/4163252701/

4. What if your child’s school suspends her for speech on Facebook, etc.?

6. Free Speech Online Defamation (ex: Horizon Realty) False statement of fact, made negligently or with intent to harm About another person/company (“changing names to protect the innocent” might not help) That is harmful to that person/company And is published to at least one 3rd party Defense: Truth

7. Free Speech Online Defamation of a public figure: “Public figure” can mean what you think it means (government official, celebrity, etc.) or a “limited purpose public figure” (someone w/ access to media, who voluntarily put self in a controversy) Public figure plaintiff must prove actual malice

8. Free Speech Online What if someone defames another person on my blog or community site? You’re protected as long as you didn’t personally select that comment/material for publication No liability if user simply posts Probably no liability if you tend to edit/remove posts

9. IP Issues: Trademarks Starbucks, McDonald’s and 7-Eleven marks are property of their respective owners.

10. IP Issues: Trademarks More than 1 person can own the same mark for unrelated goods (e.g., SABRE for boats and spectrometers) It’s all about first use in commerce (courts may allow 2 users for same mark, but divide geographic territory)

11. IP Issues: Trademarks Common law trademarks: The Gene & Betty Hoots story Burger King logos are trademarks of respective owners. Photo by Jeremy Hobson for Marketplace http://marketplace.publicradio.org/display/web/2007/11/27/burger_king/

12. IP Issues: Protecting Your Mark Don’t misuse it or you might lose it Risk: Genericide (aspirin, trampoline) Risk: Losing rights (abandonment) Monitor (Google Alerts, Twitter search, etc.) and warn infringers Enforce (ask nicely, C&D letters, arbitration through ICANN’s UDRP, civil suit)

13. IP Issues: Cybersquatting Anti-Cybersquatting Protection Act Can’t register a domain name containing another person’s name (or trademark) with bad faith intent to profit Does not prevent “gripe sites” (www.googlesux.com)

14. IP Issues: Using Others’ Twitter is a registered trademark of Twitter, Inc. and Facebook is a registered trademark of Facebook, Inc. http://www.flickr.com/photos/saz2k45/2942984114/

15. IP Issues: Copyright A Copyright is… A Copyright is not… Rights: Exclusive right to publish, modify, license, etc. for the life of the author plus 70 years Image from flickr user MikeBlogs http://www.flickr.com/photos/mikeblogs/3020966666/

16. IP Issues: Copyright – Using Others’ Best practice: ask permission Applies to photographs, blog posts, articles, sound recordings, etc. Licenses/assignments require a “signed writing”

17. IP Issues: Copyrights Bloggers’ concerns Infringement by others (have terms on your site explaining whether others are free to share; can use CC license, too) Liability for commenters/users infringing on your site (Sec 230 applies here, too) Reproducing articles in their entirety (refrain)

18. IP Issues: Copyrights – Fair Use A defense, not a right Courts consider: Purpose and character of the use Nature of the copyrighted work Amount of the work used vs work as a whole Effect of the use upon potential market value for the copyrighted work

19. I can put this logo here to talk about the show… But I can’t create a Seinfeld Aptitude Test book and sell it IP Issues – Copyright – Fair Use

20. IP Issues: Trade Secrets Social media encourages more employees to use their voice – the risk is the one-to-many communications could result in intellectual property being compromised.

21. Issues in the Workplace Employee posts on social media sites may constitute constructive notice of harassment…

22. Issues in the Workplace …perhaps especially if employer claims to monitor employee use of social media

24. Exceptions include sale of goods for more than $500, contracts that cannot be performed within one year, and promises to pay someone else’s debt

27. “What happens in Vegas stays on Google” – Scott Monty …and on your hard drive. Tweets, Facebook posts and other communications are subject to electronic discovery rules

28. Lessons Learned Think before you put your message out there Disclose relationships when necessary Watch out for infringement – and infringers Let your employees talk, but be aware of what’s going on Monitor your brand

29. Questions? Karen Evans, JD e.mail: kevans@ltu.edu Twitter: @KarenEvansTM Many thanks to PriyaMarwahDoornbos of PMD Legal e.mail: priya@pmdlegal.com and the SMCD organizers

30. Do you have any questions? Thank you.