don’t ‘like’ social media? - norton rose fulbright · don’t ‘like’ social media? ......
TRANSCRIPT
Tuesday, December 4, 2012 7:15 a.m. – 9:00 a.m. | The Houstonian Hotel
111 North Post Oak Lane | Houston, Texas 77024
Don’t ‘Like’ Social Media? Why Your Company May Not
Have a Choice Anymore
Aparna Dave Wells Fargo Legal Group
Intellectual Property and Brand Protection Issues
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Teri Danish [email protected] (713) 651 3665
Aparna Dave Senior Counsel - IP Section Wells Fargo Legal Group [email protected] 713 284 5570
Protecting Your Brand in the Social Media Space
What Wells Fargo is doing
Why you should care
Monitor, measure and report
Enforcement strategies
Communication protocols
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Blogs YouTube Twitter
Facebook Podcasts
Virtual World
UGC Events
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Unique Challenges
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Social media is word of mouth on STEROIDS
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Failure to Launch
United Breaks Guitars “…within four days of the song going online, the gathering thunderclouds of bad PR caused United Airlines' stock price to suffer a mid-flight stall, and it plunged by 10 per cent, costing shareholders $180 million. Which, incidentally, would have bought Carroll more than 51,000 replacement guitars.”
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Tastes As Good As Skinny Feels
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Your Customers Are Out There… Even When You’re Not
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Why Monitor Social Media? Acquire customers Brand awareness and recognition Identify gaps in products and
services Crisis response Customer service and increased
customer satisfaction Efficiency of marketing spend Investigative/litigation resource Traffic Violation of company policies
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Tools to Get the Job Done
Social media team Employees Internet search Search alerts (Google, Twitter) Outside vendors (Radian6, Scout Labs)
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Monitor, Measure And Report
Monitor public vs employees Watch list of terms (products, emotional, trends) Utilize employees and/or vendors
● Generate reports ● Frequency ● Method
Quantitative and qualitative metrics Measure against business objectives
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Enforcement Strategies
Investigate Contact infringer directly Utilize platform terms and conditions Creative solutions Cease and desist letter File a lawsuit Beware of enforcement backlash Know when to let things die
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“We believe using the name ‘Ravelympics’ for a competition that involves an afghan marathon, scarf hockey and sweater triathlon, among others, tends to denigrate the true nature of the Olympic Games. In a sense, it is disrespectful to our country’s finest athletes and fails to recognize or appreciate their hard work.”
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Influence. Sentiment. Volume.
Risk.
Nature of the complaint Content Damages suffered Legal or reputation risk Who is the submitter Number of followers Number of views Number and type of responses to post Timeframe Countervailing rights Violation of company policy What are the desired results
Investigate
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“Natural disasters are good for business!”
Coventry sued the Twitter user known as @coventryfirst, who has been sending tweets like "horrible weekend ... no plane crashes" and "natural disasters are good for business!"
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Contact Infringer Directly
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Utilize Platform Terms & Conditions
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The DMCA Safe Harbor Provisions
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The Real LaRussa LaRussa sued Twitter for infringement (and other claims) in May
’09 over user account “TonyLaRussa” which included LaRussa’s photo
Twitter suspended the account and the case settled Username Squatting: registering or using a user name with a bad
faith intent to profit from goodwill belonging to someone else.
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Does John Stumpf Really Have 12 Friends?
Impersonation: pretending to be another person or entity in order to deceive.
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Teaming up with Fans
This is your Fan Page and we encourage you to leave comments, photos, videos, and links here. However, we will review all comments and will remove any that are inappropriate or offensive. We will leave what you share that relates to the subjects covered on this Page. Please understand that comments posted to this Page do not represent the opinions of The Coca-Cola Company.
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Get Real, Virtually
Herman Miller fights trademark infringement in Second Life with “Get Real” campaign
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“Geek Squad” v. “God Squad”
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@BPGlobalPR
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What’s Your Game Plan?
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Be Proactive
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“Unofficial” Employee Presence
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Don’t Panic
Communication Protocols
Strategies to Mitigate Harm to Brand
Go through checklist of considerations
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Sue Ross Fulbright & Jaworski L.L.P.
Intellectual Property Issues and Employee Monitoring
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Teri Danish [email protected] (713) 651 3665
Sue Ross Senior Counsel [email protected] 212 318 3280
Intellectual Property
A. Patents B. Copyright C. Trademark D. Other forms of IP
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Intellectual Property - Patents
Patents are part of social media, although the worldwide nature of the medium can raise some interesting questions, including venue. (See, e.g., Princeton Digital Image Corp. v. Facebook, Inc., No. 2:11-CV-400-JRG (E.D. Tex. Aug. 23, 2012))
Troll Tracker Blog ● Defamation claims ● A patent lawyer for Cisco ● Settled
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Communications Decency Act
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” 47 U.S.C. § 230(c)(1)
CDA expressly states that it has no effect on criminal law, electronic communications privacy law, or any state law “consistent with this section” 47 U.S.C. § 230(e)(1), (4), and (3), respectively
“Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property” 47 U.S.C. § 230(e)(2)
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Intellectual Property - Copyright
“Safe harbor,” 17 U.S.C. § 512(c), provides that an “entity ● offering the transmission, routing, or providing of
connections for digital online communications, ● between or among points specified by a user, ● of material of the user’s choosing, without modification
to the content of the material as set or received” will have no liability for monetary or injunctive
relief if the statutory elements of the safe harbor are met”
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Intellectual Property - Copyright If the service provider does not have “actual knowledge” that
the material is infringing or “is not aware of facts or circumstances from which infringing activity is apparent” and then “acts expeditiously to remove, or disable access to, the material”
The service provider does not receive a financial benefit directly attributable to the infringing activity where the service provider has the right and ability to control such activity
Upon receipt of a notice of claimed infringement, responds expeditiously to remove, or disable access to the material
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Intellectual Property - Copyright
The statutory elements include specifying how claims of infringement are to be received by a designated agent
The designated agent must be recorded at the U.S. Copyright Office in order for the safe harbor to apply
The current fee for recordation of a designated agent with the U.S. Copyright Office is $105
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Intellectual Property – Viacom Case
Viacom Int’l Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012)
Claimed copyright infringement by copying, public performance and public display, and inducement
In 2010, the Southern District of New York ruled in favor of YouTube’s owner, Google, on a summary judgment motion, finding that the DMCA safe harbor protected the conduct at issue
In 2012, the Second Circuit affirmed in part and vacated and remanded in part
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Intellectual Property – Viacom Case
Second Circuit noted that the summary judgment evidence included “internal YouTube communications that do refer to particular clips or groups of clips” that were infringing
“Upon a review of the record, we are persuaded that the plaintiffs may have raised a material issue of fact regarding YouTube's knowledge or awareness of specific instances of infringement”
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Intellectual Property - Trademark
Twitter ● In mid-April 2009, Ashton Kutcher challenged CNN to a
race to reach one million followers on Twitter “CNNbrk” CNN did not control the account, a British web developer named
James Cox did
● First lawsuit against Twitter was a trademark case, brought by baseball manager Tony LaRussa claiming that someone was impersonating him on Twitter (including using his image) and making statements that were damaging to his reputation (LaRussa v. Twitter, Inc., No. CGC-09-488101 (Cal. Super. May 6, 2009).)
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Intellectual Property - Trademark
Dr. Eagle co-founded Edcomm, Inc. After company acquisition, she was terminated
● Acquirer changed her LinkedIn password ● Acquirer changed her account profile to display another
person’s name and photograph ● Acquirer retained her honors, awards, recommendations,
and LinkedIn connections – for a two-week period She claimed current and potential customers were
searching for her profile and being routed to this altered LinkedIn page
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Intellectual Property - Trademark
Was there a likelihood of confusion? Trial court rejected her Lanham Act claim:
● “the Court finds no such likelihood of confusion” ● “there was no effort by Defendant to ‘pass off’
Ms. Morgan as Dr. Eagle or to suggest that Dr. Eagle endorsed or was affiliated with Edcomm”
● Regarding the 2-week time span: “[s]uch a brief period mitigates any possibility of confusion”
Eagle v. Morgan, Civ. No. 11-4303 (E.D. Pa. Oct. 4, 2012)
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Other Forms of IP Facebook “Likes” - Lown Cos, LLC v. Piggy Paint,
LLC, No. 1:11-cv-911 (W.D. Mich. Aug. 9, 2012).
● Trademark dispute, and one firm contacted Facebook to have the other firm’s Facebook page removed for trademark infringement
● The other firm claimed that the takedown was a tortious interference with business expectancy, because the company had 19,000 “fans”
● Court denied the claim because the company “has not and cannot show that the removal of the facebook page—which did not offer any means of placing orders or doing business—resulted in the loss of any business”
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Other Forms of IP (cont’d) Twitter “Followers” - PhoneDog v. Kravitz., No. C 11-03474
MEJ (N.D. Cal. Nov. 8, 2011)
● Employee who ran company account left, changing the account name to his personal name, taking all 17,000 followers with him
● Former employer claimed that the value of each Twitter follower was $2.50, so the total damage was $42,500
● Tortious interference claims dismissed – no evidence of how his conduct disrupted employer’s relationships with customers or advertisers and what economic harm it caused, but trade secret and conversion claims survived
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Review Question
What do these matters have in common? ● Troll Tracker (blog relating to patents) ● Eagle v. Morgan (trademark claim relating to altered
LinkedIn profile) ● PhoneDog v. Kravitz (ownership of Twitter followers)
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Teri Danish Fulbright & Jaworski L.L.P.
Drafting Legally Acceptable Social Media Policies,
Employee Monitoring and Discipline Issues in Social Media
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Teri Danish [email protected] (713) 651 3665
Teri Danish Senior Counsel [email protected] 713 651 3665
Social Media Policies
Current state of the law ● National Labor Relations Board
● Federal and state discrimination and retaliation statutes
● Common law claims
Drafting an acceptable social media policy
Company considerations
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National Labor Relations Act
Section 7: Employees shall have the right to self-organize, to
form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in [the Act]
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NLRB Doesn’t “Like” Social Media Policy
Costco Wholesale Corp. and UFCW, 358 NLRB 106 (Sep. 7, 2012) ● “Any communication transmitted, stored or displayed
electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment”
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Costco, cont. ALJ says employees would reasonably infer that rule
designed to ensure “civil and decent workplace” NLRB says no – employees would reasonably construe rule
as one prohibiting Section 7 activity Question is whether work rule would “reasonably tend to chill
employees in the exercise of their Section 7 rights” If rule does not explicitly restrict Section 7 rights, violation
dependent on showing one of following: ● Employees would reasonably construe language to prohibit Section
7 activity, ● Rule was promulgated in response to union activity, or ● Rule has been applied to restrict Section 7 rights
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Dish Network, 11/14/12 “You may not make disparaging or defamatory comments about DISH
Network, its employees, officers, directors, vendors, customers, partners, affiliates or our/their products/services…”
“Unless you receive prior authorization . . . you must direct inquiries to the Corporate Communications Department. Similarly, you have the obligation to obtain the written authorization of the Corporate Communications Department before engaging in public communications regarding DISH Network or its business activities. . .”
“[If you are contacted by a government agency], notify your manager immediately and forward the [communication] to the General Counsel . . .The correspondence should not be responded to unless directed [to do so]. . .
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Dish Network, cont. Social media policy unlawful on two grounds:
1. Banning “disparaging or defamatory comments” violated the Act – citing Costco
2. Banning negative discussion during “Company time” presumptively invalid – failed to “clearly convey” that solicitation may still occur during breaks, non-working hours
Contact with the Media policy unlawful – unduly interferes with employees’ rights to “improve terms and conditions of employment” by seeking assistance outside employment relationship
Contact with Government Agencies policy unlawful – could be rationally construed by workers as limiting contact with independent Board agents 56
Employer Considerations NLRB taking very broad view of protected employee speech Protected speech still does not include “malicious, abusive or unlawful”
speech Review policy and narrowly tailor
● Be specific – ex: confidential/trade secret information Remember obligations to act
● Breach of securities laws ● HIPAA disclosure ● Retaliation because of protected conduct
Pay attention to state/local laws ● Privacy laws
Consider “savings” clause ● Costco panel noted there was no language in policy stating that it did
not cover protected activity ● Add disclaimer that policy does not cover protected activity
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Sample Policy Employees are solely responsible for information they post online. Any
conduct that adversely affects an employee’s job performance, the performance of other employees, customers or the Company’s legitimate business interests may result in disciplinary action up to and including termination. Inappropriate postings may include discriminatory remarks, harassment and threats of violence of similar inappropriate conduct, and will not be tolerated. Similarly, posting of any of the Company’s confidential, trade secret or proprietary information, or unauthorized financial disclosure, is expressly prohibited and will lead to discipline and likely termination
Nothing in this policy prohibits an employee from engaging in any
communication protected by federal or state law. However, employees may not post statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, or that might constitute harassment or bullying. Employees are also prohibited from using social media while on work time, unless authorized by Company management
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Questions?
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