November 19, 2013

Social Media and Intellectual PropertyColin Hutt President of Primum Marketing Communications

• Primum created Manpower’s law blog and wrote this disclaimer.• Only law blog recognized in 2008 Webby Awards, “the Oscars of the Internet”

(New York Times).

Is social media worth the risk?

It’s a bigger risk to

ignore it.

• Risk vs. reward• Joining or launching social sites is

risky.• Staying out of social media is also

risky (legally and from marketing

perspective).

5 Areas to Watch

• Defamation

• Patents

• Copyright

• Trademark

• Trade secret

Defamation• AP reporter Jon Krawczynski

tweeted this during a basketball

game in 2011.• Tweet implied the game was

fixed.• Referee Bill Spooner was

investigated by the NBA.• Spooner sued Krawczynski for

defamation.• AP settled and paid $20,000 fine.• Watch what you say on Twitter!

Defamation (and endorsements)

• Endorsements are the opposite of

defamation.• Must follow rules for endorsement

too.• Federal Trade Commission (FTC)

guideline: when endorsing must

disclose “material connections” –

any connection with the product's

maker that might affect a

consumer's purchasing decision.• Can use #sponsored hashtag on

Twitter.• The same goes for posting about

yourself/your company on Yelp or

elsewhere.

Patents

• You have one year to file for a patent after your invention is first

“described.”• Mentioning on social media counts as becoming “otherwise available to

the public.”• Examples: posting photo of prototype, tweeting about invention idea

• Technically, you can’t post content

on social media that you don’t own.• Instead, click the Share button if

you like someone else’s content.• This video on Primum’s Facebook

page was created by us (original

content).• If you save it to your computer and

upload to your page – not good.• If you share it on your page – good.

Copyright

• Library of Congress falls under library exception of Section 108 of copyright

law: it is not an infringement of copyright for a library or archives to reproduce

a copy of a work if: • The reproduction is without a commercial purpose• The library and collections are available to the public• The notice of copyright in the original work remains intact

• Publishing others’ tweets in a book to sell commercially may be copyright

infringement.• Still a gray area.

What counts as copyright infringement?

• Name-squatting: claiming a

brand or person’s name on a social

site they haven’t joined yet• Impersonation: acting as a brand

or person on a social site• Parody: special consideration for

parodies

TrademarksImpersonation vs. Parody

• Twitter has a parody policy: Users are allowed to create parody,

newsfeed, commentary, and fan accounts on Twitter if they follow these

rules:• The avatar can’t be a trademarked logo.• User name must distinguish account as parody (include “not,”

“fake” or “fan”).• Bio must include a statement about being a parody account.

• When Noah Kravitz stopped

working for tech site Phonedog,

he took his @phonedog_noah

Twitter account and turned it

into @noahkravitz, which now

has 23,000 followers. • Phonedog sued for his

followers, claimed they were

company property and worth

$2.50 each.• Customer lists considered trade

secrets.• Shows importance of social

media policy for employers to

follow, off-boarding processes.

Trade Secrets

Phonedog v. Kravitz case

Protect Your Intellectual Property

Proactively

Proactively: to prevent it from being

stolen in the first place• Watermark images.• Include copyright symbols on your

content.• Post disclaimers on blog/site.• If your content gets shared, your

brand goes with it.

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Reactively:Issue a takedown notice under Digital Millennium Copyright Act (DMCA)

The Digital Millennium Copyright Act

protects service providers on the Internet from liability for the activities of its users.

• DMCA enacted in 1998 to protect service providers from

lawsuits.• Safe Harbors – can’t be liable for end users’ activity.• The internet wouldn’t be the same today without it.• DMCA created a process for reporting intellectual

property rights infringement to social sites/services –

takedown notices (in other words: how to tell YouTube

that someone posted a video with your copyrighted song

in it).

• Providers of conduit communications (ISP)• Those who cache content hosted by another (Google

caching)• Those who host content provided by another (social

media)• Search engines (Google)

The DMCA provides safe harbors for:

How to issue a takedown notice to YouTube

Avoid Infringing on Others’ Copyright

Fair Use

If you use someone else’s content, make sure it falls under fair use.

Consider:

• How much of the original work was used

• Whether the new use is commercial in nature

• Whether the market for the original work was harmed

• Whether the new work is a parody

a legal exception to the exclusive rights an owner has for his or her copyrighted work.

What counts as fair use?

• Example of fair use: “stealing” a

photo of a book cover for your blog

post, in which you review that book. • Including the photo doesn’t make

the blog visitor any less likely to

purchase the book (seeing the

photo is not the same experience as

reading the book).• In other words, the market for the

original work wasn’t harmed (bullet

3 in previous slide).

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Threshold of Originality

• If you have doubts, ask yourself if the original content meets the threshold

of originality.• The original content creator only holds copyright of posted material if the

content is original and the content satisfies the threshold of originality.• Tweeting “that’s hot” after Paris Hilton has already tweeted the same thing

is not stealing content – the phrase does not meet threshold of originality.

A Look at the Terms of Service

Things to Look For

• Who has the rights to content after you post it?

• Do you have the rights to post it in the first place?

• What happens to content if you delete it and/or your account?

• Who is responsible for copyright infringement, defamatory comments, etc. that you may post?

• What can the social media site do with your information and the content you post?

Social Media and Privacy

What’s Public and What’s Private?• You can control your privacy settings on most social sites.• Settings might be confusing or change often.• Some of what you post can be set to private, other content

must be public (your username and profile picture, for

example).• Make sure you know what is public by default.

How Private Info can Become Public

• Shares by approved friends/fans

• Third-party apps are given access

• Social site has access even after you delete content or account

• Site changes privacy policy

Anything you put online can end up on social media.

• Even if you don’t use social media, your

content could end up there and even go

viral.• For example, a wedding photographer

could post a photo on her blog, and it

could get pinned on Pinterest.• The photo goes viral and gets posted on

various social sites with no attribution to

original photographer.

• Even if you take something off the internet, it

is never truly gone.• It could have been saved/shared by someone

who saw it while it was up.• Even if it wasn’t, the internet is cached and

archived – example: the Wayback Machine is

an internet archive going back to 1996.

The Internet Never Forgets!

This is what yahoo.com looked like in 1998.

Privacy Policies

Social sites you use may collect your info and use it in various ways. Pinterest

tracks your activity and uses that data to tailor the content and ads you see.

Privacy Policies

Privacy Policies Can ChangeA Facebook Case Study

• Most people also don’t read the privacy policy when they

sign up for a new social site. • Clicking “I Agree” without reading it takes the power out

of your hands. • Even if you understand and agree with a social site’s

privacy policy, it can change at any time, leaving your

content and personal information at risk.

Facebook has had a lot

of negative attention

surrounding changes

to their privacy

policy.

In fact, Facebook

started with a privacy

misstep when Mark

Zuckerberg hacked

into Harvard’s

student directories

and posted student

photos without their

consent.

What social sites do with your info

• Behavioral advertising

• Leak your data to third-party tracking sites

• Sell your contact info to advertisers or spammers

• Tailor the content you see

Best Practices

1. Engage with Social Media

Claim your names early.

• Engaging with social media is good

marketing anyway.• You get to control the conversation.• Claim your brand or name on

various accounts early to avoid

dealing with name-squatting.• Primum has various social media

accounts and engages on

Facebook, Twitter and LinkedIn.

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2. Monitor your Brand

• Social listening is important for nipping problems in the bud – check your

reputation, defuse customer service issues, identify others infringing on

your intellectual property or impersonating you.• Different services do different things – see what people are saying about

you, measure how successful your campaigns are, monitor the

competition.

3. Only Post Original Content

• You won’t have to worry about

being sued or fined or having to

take your content down.• You’ll look more reputable.• Original content is better and more

interesting to your audience

anyway.• This photo that I showed you earlier

is Primum’s original content – we

took the photo ourselves, in our

office, and posted it on Facebook.

(and protect it proactively with watermarks, copyright symbols, etc.)

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4. Make a User-Generated Content

PolicyWhat’s user-generated content?

Any form of content that was created by

consumers or end-users of an online

system or service and is publicly

available to other consumers and end-

users.

Examples:•Comments posted on a blog•Photos uploaded to Facebook•Videos distributed via YouTube•Pins saved on Pinterest

User-Generated Content

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Remember the DMCA? To qualify for DMCA Safe Harbor status…

…you must inform users of your policy

• Here’s the Macy’s UGC policy• Decide to what extent you want to

claim ownership over user-

generated content. • Can allow user to retain full

ownership of content, can make

user transfer ownership

completely to the site, or anything

in between.• Although claiming ownership of

UGC gives you more flexibility in

how you use that content, it also

could increase your risk of liability.

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5. Tread carefully with cease and desist letters

A bad letter gone viral can be worse than your copyrights being violated.

Exhibit A: The Streisand Effect

• Barbra Streisand sued the California

Coastal Records Project for including an

aerial image of her home on their site. • The internet found out and got angry at

her attempt to limit free speech.• The photo of her home ended up being

viewed far more than it otherwise

would have.• “The Streisand Effect” has come to

describe how efforts to suppress a

piece of online information can backfire

and end up making things worse for the

would-be censor.

Exhibit B: Jack Daniels

• On the other hand, a good cease and desist letter can go viral and

cause positive publicity.• Jack Daniels issued a cease & desist letter to an author, claiming his

book cover was too similar to their bottle design.• The letter was polite:

• “We are certainly flattered by your affection for the

brand.”• “We wish you continued success with your writing.”• Only asked for design to be changed at future reprinting.• Offered to pay for an immediate reprinting.

Exhibit B: Jack Daniels

Striking a BalanceWhat marketers are trying to accomplish with social media

• Must strike a balance between marketing

your brand and following the law. • Social media users often don’t realize

that legal rules govern their online

conversation. • Marketers aren’t trying to break laws,

and lawyers aren’t trying to take the fun

out of social media.• Attorneys need to help their clients

influence the online conversation so that

engagement in social media helps the

brands rather than causing damage to

their reputations and exposing the owner

to legal risk.