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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Under section 512(f) of the Digital Millennium Copyright Act (DMCA), copyright owners are liable for “any damages” stemming from knowingly false accusations of 

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First-Ever Award of “Any Damages” for Fraudulent  DMCA Takedowns Under Section 512(f)

First-Ever Award of “Any Damages” for Fraudulent  DMCA Takedowns Under Section 512(f) | Socially Aware

Under section 512(f) of the Digital Millennium Copyright Act (DMCA), copyright owners are liable for “any damages” stemming from knowingly false accusations of infringement that result in removal of the accused online material. Section 512(f) aims to deter abuse of the DMCA requirement that service providers process takedown requests from purported copyright owners, but such abuses remain rampant. (E.g., as reported here and here.) In fact, until the March 2, 2015, decision in Automattic Inc. v. Steiner (adopting magistrate’s earlier recommendation), no court had awarded damages under section 512(f).The case concerned a blog by Oliver Hotham, who had contacted a group called “Straight Pride UK,” identifying himself as “a student and freelance journalist” and submitting a list of questions. Nick Steiner responded by identifying himself as the “Press Officer” for Straight Pride UK and providing a PDF file titled “Press Statement – Oliver Hotham.pdf.” The press statement laid out Straight Pride UK’s opposition to “everyone [in the UK] being forced to accept homosexuals” and stated its mission of ensuring “that heterosexuals are allowed to have a voice and speak out against being oppressed.” Hotham posted material from the press statement on his blog.Steiner, apparently displeased with the subsequent negative attention, sent an email to Automattic, Inc., the blog’s host, invoking section 512(f). Steiner claimed to hold copyright in the posted material and requested that Automattic remove the blog post, and Automattic complied. Hotham, however, again posted material from the Press Statement to his blog, prompting Steiner to send two more removal requests by email to Automattic. Automattic denied those requests, citing their legal insufficiency. Automattic and Hotham then filed a lawsuit to recover damages related to Steiner’s misrepresentation that the blog infringed his copyright.The court easily found that Steiner had violated section 512(f) because he “could not have reasonably believed that the Press Statement he sent to Hotham was protected under copyright.” Following the precedent of Lenz v. Universal Music Corp., the court then interpreted the statute’s specification of “any damages” to mean that damages are available, no matter how insubstantial. After requesting more detailed evidence concerning damages, the court found that Hotham and Automattic were entitled to certain types of damages.First, based on the time he was prevented from spending on freelance articles and his expected compensation for such work, Hotham estimated the value of the time he spent on activities related to the incident, including responding to media inquiries. Hotham also requested additional damages for “lost work” due to the “significant distraction” caused by the media coverage and legal disputes. Hotham claimed a total of $960, and the court found his declaration sufficient to support that claim. But the court denied Hotham’s request for reputational harm as speculative, and rejected Hotham’s request for damages based on emotional distress and “chilled speech,” citing the lack of authority that such damages are available under section 512(f).Automattic was likewise successful in claiming damages of $1,860, calculated based on employee salaries and a 2,000-hour year, for time spent responding to the takedown notices and related press inquiries. The court denied Automattic’s request for damages attributable to time spent by its outside public relations firm, however, because there was insufficient evidence to show how that time constituted a loss to Automattic.The court also awarded attorneys’ fees, which are expressly allowed by section 512(f). Based on comprehensive billing records submitted along with data indicating the average local billing rate for IP attorneys, the court granted the request for recovery at a rate or $418.50 per hour, for a total of $22,264 in fees.The court’s analysis is instructive in multiple ways. First, as mentioned, this was the first case resulting in a damages award under section 512(f), so the opinion is likely to serve as a road map for future courts considering such damages. Potential litigants should not read this case, however, as necessarily indicative of the magnitude of damages available in section 512(f) cases. Exposure can certainly be much greater, as demonstrated in Online Policy Group v. Diebold, Inc., a case that reportedly settled for $125,000. A few factors conspired to make damages in this case minimal (a total of $25,084). Steiner’s takedown notice was obviously fraudulent, so practically no resources were expended in meeting the normally demanding burden of proof. (As other commentators have noted, that same demanding burden of proof is one reason why there are not many section 512(f) cases in the first place.) Other cases may involve more protracted conflict over takedown notices and legal threats. Steiner also never appeared in his defense and therefore defaulted, which likely greatly reduced the time and expense of the lawsuit.This case also reinforces the most crucial strategic consideration for service providers in responding to a DMCA takedown notice: as Socially Aware has previously explained, no damages can be awarded under section 512(f) unless the notice actually prompts the removal of the accused material. Therefore, if it ultimately wants to resist a takedown notice, a service provider can only recover the expenses of doing so if it actually removes the accused material in the first place.On the other hand, the court applied the takedown requirement loosely in its actual assessment of damages. Steiner issued three purported DMCA takedown notices, but only the first notice resulted in actual removal of accused content. Even though Hotham and Automattic could have incurred a portion of their expenses due to the final two notices, the court did not discuss whether the takedown requirement precluded any portion of their claimed damages. While this bodes well for the availability of damages in cases involving multiple takedown notices, the analysis has questionable weight on this point. Given the absence of any opposition from defendant, future defendants will have a strong argument that the court simply did not consider this nuance.