Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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[Editor’s Note: In response to the success of our earlier post on terms and conditions for mobile apps, two of our London-based colleagues have prepared a “remi

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Launching a Mobile App in Europe? Seven Things to Consider When Drafting the Terms & Conditions

Launching a Mobile App in Europe? Seven Things to Consider When Drafting the Terms & Conditions | Socially Aware

[Editor’s Note: In response to the success of our <a href="http://www.sociallyawareblog.com/2015/07/20/mobile-app-legal-terms-conditions-six-key-considerations/" target="_blank" rel="noopener">earlier post</a> on terms and conditions for mobile apps, two of our London-based colleagues have prepared a “remixed” version, which looks at the subject of mobile app terms and conditions from a European perspective. Enjoy!]The mobile app has become the new face of business. It’s no longer sufficient to have a company website. More and more companies want a mobile app that users can download to their smartphones and easily access. It’s not difficult to see why. People are voting with their thumbs.In 2015, overall mobile app usage grew by 58%, with lifestyle and shopping apps growing 81%, following previous 174% growth in 2014, according to FlurryMobile. Indeed, FlurryMobile figures show that mobile commerce now accounts for 40% of online commerce worldwide. Accordingly, the advantages of an app to business, from a customer marketing, engagement, service and awareness perspective, are clear.Even traditionally conservative sectors such as financial services are being revolutionised by the mobile app. In 2015, the British Bankers Association identified that banking by smartphone and tablet has become the main way for UK customers to manage their finances, with mobile banking overtaking branches and the internet as the most popular way to bank.If your company will be among the many businesses that launch a mobile app in Europe in 2016, one of the key legal protections your company will need in connection with such launch is an end user licence agreement (EULA). So, where do you start? Here at MoFo, we regularly review mobile app EULAs and we’ve noticed a number of issues that app developers don’t always get right. Here is our list of the key issues you will need to consider.<ol><li> One size does not fit all</li></ol>Your EULA will be an important part of your strategy to help mitigate risks and protect your intellectual property in connection with your app. It’s unlikely that you would release desktop software without an EULA, and mobile apps (which are, after all, software products) warrant the same protection. While a number of mobile app providers such as Google provide a “default” EULA to govern mobile apps downloaded from their respective app stores, they also permit developers to adopt their own customized EULAs instead—subject to a few caveats, as mentioned below. Because the default EULAs can be quite limited and can’t possibly address all of the issues that your particular app is likely to raise, it’s generally best to adopt your own EULA in order to protect your interests.<ol start="2"><li> How to ensure a binding EULA?</li></ol>Whether an EULA is enforceable in any particular case will depend on how the EULA is presented to users and how users indicate their agreement to the EULA. There are several ways that you can present your EULAs to users. For example, in most app stores, a dedicated link called “Licence Agreement allows companies to include a link to their EULAs from their product page. In addition, it’s advisable for companies to include language in their apps’ “Description” field making clear to users that, by downloading and using the app, they are accepting the EULA. Despite this functionality being available, many apps currently do not provide users with an opportunity to view the EULA before downloading the app. However, if you want to help ensure your EULA is capable of being enforced against consumers in Europe, the safest approach is to include a link to the EULA and require an affirmative “click-accept” of the EULA when the app is first opened by a user on his or her device to demonstrate that the EULA was accepted.<ol start="3"><li> Who is bound by your EULA?</li></ol>If an app is targeted toward businesses, or toward individuals who will use the app in their business capacities, then the EULA should ideally bind both the individual who uses the app and the individual’s employer. If minors will be permitted to use the app, then the EULA should require that a parent or guardian consents on the minor’s behalf. If the app is specifically targeted at minors, careful consideration should be given to any specific legal or regulatory requirements. For example, in Europe, particular concerns have been raised about the use of app games by minors, particularly games that are free to download, but which provide for in-app purchases; regulators have issued specific guidance of which developers of app games will need to be aware.<ol start="4"><li> Where to put your EULA?</li></ol>As a technical matter, a EULA can reside in one of two places: It can be “hard-coded” into the app itself, so that the EULA is downloaded together with the app, or it can reside on a separate web server maintained by the developer. The first approach ensures that the EULA is always accessible to the user, even if the user’s device is offline. Some users may decide not to download the latest updates, however, and, as a result, those users may not be bound by the updated terms. In contrast, with the second approach, companies can update their EULAs at any time by simply updating the document on their own web servers, although the EULAs won’t be available to the user offline. Companies should think about which approach works best for their specific apps and the associated risk issues. We note that, under applicable consumer law in Europe, any EULA term that has the object or effect of enabling the developer to alter the terms of the contract unilaterally without a valid reason is likely to be considered unfair.<ol start="5"><li> What about app store terms?</li></ol>Some app stores understandably require that, if a company adopts a customized EULA for its app, that customized EULA must include terms protecting the applicable app store owner. (Other app stores may place such protective terms in their own user-facing agreements and require developers to acknowledge that such protective terms will apply.) Other third-party terms may also apply, depending on any third-party functionalities or opensource code incorporated into the app. For example, if a company integrates Google Maps into its app, Google requires the integrating company to pass certain terms on to its end users. The licensors of any open-source code used by an app may also require the company to include certain disclaimers, attributions, usage restrictions or other terms in the EULA.<ol start="6"><li> Consumer protection</li></ol>There are various consumer protection requirements that will need to be considered if your app is going to be targeted at consumers in Europe. In particular, specific information will need to be provided to such consumers, including with respect to the identity of the app developer, app charges, functionality of the app, how the app operates with relevant hardware/software (interoperability), and whether any geographical restrictions apply, and so forth. Consumers also have a right to withdraw from the contract, i.e. “return” the app within 14 days of concluding the contract, except where the consumer expressly consents to the download and acknowledges that in completing the download the user will lose this cancellation right. Therefore, it’s important in Europe for your EULA to contain an acknowledgment that the consumer waives this cancellation right on download of the app.In addition, within Europe, individual member states may have other requirements affecting apps that you will need to take into account. Although most EU member states don’t currently have national consumer protection legislation specifically concerning sales of digital content to consumers, since October 1, 2015, UK consumers have enjoyed new rights and remedies with respect to digital content. Any company targeting an app at consumers in the UK should now take into account implied quality standards in terms of satisfactory quality, fitness for purpose and compliance with description. Also, even where the app is provided free of charge, if the app causes damage to a consumer’s device or other digital content, then the app provider will be liable for such damage. As detailed in our post on This lack of harmonisation within Europe has led to the European Commission proposing <a href="http://www.sociallyawareblog.com/2016/01/14/harmonizing-b-2-c-online-sales-of-goods-and-digital-content-in-europe/" target="_blank" rel="noopener">new EU laws</a> that would give consumers new rights of remedy and redress where digital content is faulty or inadequately described by the seller.<ol start="7"><li> Be clear and fair</li></ol>It’s not just a question of what information to include in your EULA, it’s also important to carefully consider how your EULA is written. A common complaint is that EULAs are too long, filled with impenetrable jargon and hard to read, created more to protect companies in the court room than help the consumer make an informed choice.In order to avoid the wrath of European consumer protection regulators, and to help ensure that your EULA is enforceable, you should aim to use plain language that is understandable to consumers. Where complex and technical issues need to be covered, particular care will be needed. You should avoid obscure legal jargon, including removing references to phrases which may be unfamiliar to consumers such as “indemnities”, “consequential loss”, “assignment”, etc. In addition, because space on a mobile device screen is limited, it’s advisable to keep the terms as concise as possible and easy to navigate.Even if a EULA is written in plain language, extremely one-sided provisions—such as a disclaimer of direct damages (rather than a cap on such damages)—are at risk of being held to be unfair and unenforceable against the consumer. At the same time, the EULA is ultimately a legal document, and so you’ll want to make sure that any slimmed-down or simplified EULA still provides you with adequate protection.Of course, it’s not just a question of compliance with consumer law. Where your app relates to a regulated sector, e.g. financial services, health and gambling, there are likely to be other regulatory requirements that you will need to comply with. And these regulatory requirements may go beyond the EULA itself and affect the way the app is designed and structured. Therefore, it’s very important to consider compliance issues from the development stage.Lastly, if you collect personal information through your mobile app, remember that, in addition to your EULA, you will need to have a privacy policy in place and ensure that you comply with applicable data protection and privacy laws; such laws are often far more burdensome in Europe than in the United States—but that’s a topic for a separate article!