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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Of Counsel

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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Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

<a href="http://www.nytimes.com/2016/05/06/business/facebook-bends-the-rules-of-audience-engagement-to-its-advantage.html?_r=0" target="_blank" rel="noopener">Facebook users spend more time</a> on the platform than they spend pursuing any other leisure activity, except TV. Indeed, 1/16th of the average user’s waking time is spent on the platform.The most disliked movie trailer in history, <a href="http://www.cinemablend.com/new/Most-Disliked-Movie-Trailer-History-According-YouTube-128097.html?utm_content=inf_10_3234_2&utm_source=soed&tse_id=INF_ec7dda719701454ba532078edb28b8ec" target="_blank" rel="noopener">according to YouTube</a>.New California law would determine what happens to your Facebook and email when you die. This article explains <a href="http://www.sociallyawareblog.com/2015/03/10/who-will-update-my-status-when-im-dead-the-biggest-social-media-platforms-policies-on-deceased-user-accounts/" target="_blank" rel="noopener">what’s likely to happen to your social media assets if you die anywhere else</a>.Guess what percentage of U.S. households <a href="http://www.mediapost.com/publications/article/274674/20-have-wearables-15-more-plan-to-get-one.html" target="_blank" rel="noopener">own a wearable</a>?According to the messaging platform’s own CEO, <a href="http://www.universityherald.com/articles/29638/20160502/3-facts-that-say-snapchat-is-not-a-social-media-ceo-statement-included.htm#!" target="_blank" rel="noopener">Snapchat is not social media</a>.<a href="http://www.reuters.com/article/us-twitter-government-ruling-idUSKCN0XT1RK" target="_blank" rel="noopener">Twitter filed a lawsuit</a> arguing it should be allowed to publicly disclose more details about requests for information from the government.Fail! Another <a href="http://nypost.com/2016/05/04/nypds-embarrassing-drop-the-mic-social-media-fail/" target="_blank" rel="noopener">NYPD social media campaign gone bad</a> makes headlines.How your social media profiles make you vulnerable to identity theft, and what you can do about it.Tips for using social media to <a href="http://www.wsj.com/articles/a-travelers-guide-to-social-media-1462461788" target="_blank" rel="noopener">plan your vacations</a> and <a href="http://www.glamour.com/story/6-ways-social-media-can-actually-get-you-a-job" target="_blank" rel="noopener">land a job</a>.

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 Rubin

Social Links—The most disliked movie trailer ever; using social media to plan trips and land job interviews; and more.

Facebook users spend more time on the platform than they spend pursuing any other leisure activity, except TV. Indeed, 1/16th of the average user’s waking time 

Social Links—The most disliked movie trailer ever; using social media to plan trips and land job interviews; and more.

Social media is all about innovation, so it is no surprise that social media marketers are always looking for innovative ways—such as courting social media “influencers” and using native advertising—to promote products and services to customers and potential customers. But, as the retailer Lord & Taylor recently learned, the legal rules that govern traditional marketing also apply to social media marketing. Earlier this year, the Federal Trade Commission (FTC) reached a settlement with Lord & Taylor in a dispute involving its online advertising practices. According to the FTC’s <a href="https://www.ftc.gov/system/files/documents/cases/160315lordandtaylcmpt.pdf" target="_blank" rel="noopener">Complaint</a>, Lord & Taylor allegedly:<ul><li>gifted a dress to 50 “fashion influencers” and paid them to post on their Instagram accounts photos of themselves in the dress during a specified timeframe; and</li></ul><ul><li>paid for, reviewed and preapproved Instagram posts and an article in an online magazine, Nylon.</li></ul>In neither case, according to the FTC, was Lord & Taylor’s role in the promotional effort appropriately disclosed.On these alleged facts, the FTC brought three counts alleging the following violations of Section 5 of the FTC Act’s prohibition on deceptive practices:<ul><li>the failure to disclose that the influencers’ Instagram posts did not reflect their independent and impartial statements, but rather were specifically created as part of an advertising campaign;</li></ul><ul><li>the failure to disclose or adequately disclose that the influencers were paid endorsers; and</li></ul><ul><li>the failure to disclose that the Nylon materials were not independent statements and opinions of the magazine, but rather “paid commercial advertising.”</li></ul>As has been widely remarked, this is not the first time the FTC has brought a case relating to social media advertising. The settlement, however, is noteworthy because it brings together issues relating to both native advertisements and endorsements. The FTC has been focusing on these issues since late 2014; its activities have included:<ul><li>Settling with the advertising firm Deutsch LA, Inc. in late 2014 in connection with its allegedly deceptive activities relating to the promotion, on behalf of its client Sony, of the PlayStation Vita handheld gaming console through Twitter (we <a href="http://www.sociallyawareblog.com/2014/12/03/ftc-enforcement-action-confirms-that-ad-disclosure-obligations-extend-to-endorsements-made-in-social-media/" target="_blank" rel="noopener">wrote about the Deutsch LA case</a> on Socially Aware).</li></ul><ul><li>Settling in September 2015 with Machinima, Inc., an online entertainment network that allegedly paid video bloggers to promote the Microsoft Xbox One system (we also wrote about the <a href="http://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">Xbox One settlement</a> on Socially Aware).</li></ul><ul><li>Issuing a <a href="https://www.ftc.gov/system/files/documents/closing_letters/nid/150902machinima_letter.pdf" target="_blank" rel="noopener">closing letter</a>, at the same time as the Machinima settlement, indicating that the FTC had investigated Microsoft and Microsoft’s advertising agency, Starcom, in relation to the influencer videos at issue in Machinima. The closing letter was significant because it suggested that the FTC was primed to take the position that a company whose products are promoted bears responsibility for the actions of its ad agencies—as well as the actions of those engaged by its ad agencies.</li></ul><ul><li>Releasing a <a href="https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf" target="_blank" rel="noopener">policy statement </a>and <a href="https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses" target="_blank" rel="noopener">guidance</a> on native advertising in late 2015, which warned companies—again—that it is deceptive, in violation of Section 5, if reasonable consumers are misled as to the true nature or source of an advertisement. </li></ul>The compliance issue with native advertising is that content that does not appear to be advertising—such as an advertisement or promotional article in an online or print publication formatted to look like the non-advertising materials in the same publication—must be clearly and conspicuously disclosed as advertising. The relevant compliance issue with endorsements is that any payment or other compensation received by the endorser from the promoter must be appropriately disclosed.The concept underlying native advertisements and endorsements is the same: Consumers must be aware that they are reviewing promotional material, not “native” or “organic” content, whether it is on a social media platform, a website or in a print publication.The Lord & Taylor settlement is yet another clear signal that paid promotions of any kind, in any medium, must be disclosed. Given the FTC’s focus on these issues and the repeated enforcement actions, especially with respect to social media endorsements, it is likely that the FTC will continue to enforce in this area until it is convinced that the market understands the disclosure rules.In light of the risk in this area, the Lord & Taylor Consent Order is noteworthy, as it provides valuable insight into how the FTC expects companies to avoid running afoul of the endorsement and native advertising rules.For example, the Order requires Lord & Taylor to provide any endorser “with a clear statement of his or her responsibility to disclose, clearly and conspicuously,” the material connection between the retailer and the endorser in any advertisement and communication, and to obtain a signed and dated acknowledgment of receipt of this statement from the endorser. In addition, the Order requires Lord & Taylor to maintain a system to monitor and review its endorsers’ representations and disclosures. Taken together, these requirements essentially lay out components of a compliance program that any company using social media for advertising should consider.Of course, any such program requires time and resources, and no company has those in infinite supply. But, moving beyond the FTC’s Complaint and Order, there are other noteworthy aspects of the social media endorsement issue that appear to have been overlooked.According to news reports and comments from Lord & Taylor, it appears that the company (and commentators) recognized the potential FTC compliance issue right after the ad campaign launched. The company <a href="http://www.wsj.com/articles/lord-taylor-reaches-settlement-with-ftc-over-native-ad-disclosures-1458061427" target="_blank" rel="noopener">reportedly stated</a>, after the settlement, that “it came to our attention [a year ago] that there were potential issues with how the influencers posted about a dress in this campaign, [and] we took immediate action with the social media agencies that were supporting us on it to ensure that clear disclosures were made.” And, indeed, articles from the time of the advertising campaign noted, for example, that “the [endorsing] bloggers left out an important piece of information in their Instagram posts: a disclosure that they had been paid to post by Lord & Taylor.” Another website commented at the time that the bloggers “<a href="http://www.refinery29.com/2015/04/85144/ftc-blogger-requirements" target="_blank" rel="noopener">failed to mention </a>they were paid,” and suggested that the company was getting away with violating the FTC Act (though it did note that many bloggers had gone back to add “#sponsored or #ad to their posts).” The immediate aftermath of the Lord & Taylor campaign that ultimately formed the FTC’s case suggests that awareness of the issues is rising among the public, and that even a quick fix can be too late.In light of this awareness, the failure to disclose obvious ties between the endorser and the promoter can undermine a campaign. And, even though the FTC does not have the authority to impose civil money penalties for these types of violations of the FTC Act, state Attorneys General appear to be getting in on the act. Machinima, Inc., for example, settled allegations with the FTC regarding its use of influencers in promoting the Xbox One (as we noted above). A few months later, however, the company entered into a settlement with the New York Attorney General that included a penalty of $50,000 for its alleged failure to disclose payments to the influencers.These events strongly suggest that ensuring appropriate disclosures is more than just an FTC compliance issue. While the FTC is actively enforcing in this space, the margin of error is shrinking not only because of the FTC, but also because of the increasing awareness of the public, and the new risk of enforcement (including financial penalties) by state Attorneys General. *    *    * For more information on potential legal hurdles for companies engaged in social media marketing, please see these related blog posts:<a href="http://www.sociallyawareblog.com/2016/01/05/a-warning-from-the-ftc-on-native-advertising/" target="_blank" rel="noopener">An FTC Warning on Native Advertising</a><a href="http://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers</a><a href="http://www.sociallyawareblog.com/2014/12/03/ftc-enforcement-action-confirms-that-ad-disclosure-obligations-extend-to-endorsements-made-in-social-media/" target="_blank" rel="noopener">FTC Enforcement Action Confirms That Ad Disclosure Obligations Extend to Endorsements Made in Social Media</a>

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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Innovative Social Media Marketing Cannot Overlook Old-Fashioned Compliance

Innovative Social Media Marketing Cannot Overlook Old-Fashioned Compliance

  Social media is all about innovation, so it is no surprise that social media marketers are always looking for innovative ways—such as courting social media “i

Because content posted online can be accessed nearly anywhere, courts regularly face the issue of whether they have personal jurisdiction over a defendant who posted material to the web or a social media site. Recently, one New York federal court held that the mere fact, standing alone, that copyrighted material posted online was accessible in New York did not create a “situs of injury” sufficient to support personal jurisdiction under New York’s long-arm statute.In <a href="http://cases.justia.com/federal/district-courts/new-york/nysdce/1:2015cv01167/438556/53/0.pdf?ts=1458228374" target="_blank" rel="noopener">Pablo Star Ltd., et al. v. The Welsh Government, et al.</a>, the Ireland and UK-based owners of the copyright in two photographs of poet Dylan Thomas sued the Welsh government and its “Visit Wales” tourism bureau, as well as a number of content publishers, including the Tribute Content Agency, LLC, the Pittsburgh Post-Gazette, and the Miami Herald Media Co. While the Welsh government defendants were dismissed on sovereign immunity grounds, the court was left to consider whether it had personal jurisdiction over the publisher defendants, none of which were based in New York.The court quickly rejected any arguments regarding general personal jurisdiction, which renders a defendant amenable to suit on all claims that could be asserted in a jurisdiction. The court recognized that establishing general jurisdiction is exceedingly difficult under prevailing Supreme Court precedent. Thus, the court turned to New York’s <a href="http://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-302.html" target="_blank" rel="noopener">long-arm statute</a>, which among other bases for obtaining jurisdiction over a defendant, would require “a tortious act [outside] the state causing injury to person or property within the state.”The court found that, because intellectual property is intangible, the injury in copyright or trademark infringement is generally in the state where the intellectual property is held—that is, the domicile of the owner of the intellectual property at issue. The court held that because the plaintiffs are foreign corporations, the situs of the injury cannot be New York.Plaintiffs argued that they were injured in New York “specifically due to lost or threatened business” as they were “deprived [of] the potential opportunity to license and publish their copyrighted photos here.” The court rejected this argument on two grounds.First, as a matter of principle, such a “market harm” theory could justify jurisdiction “anywhere that the internet is accessible,” opening up a defendant to being sued anywhere and everywhere. Moreover, unlike most tort cases, where the location of plaintiff’s injury is often singular and identifiable, the injury in online copyright infringement cases is “difficult, if not impossible” to pinpoint to a particular geographic region.Second, the court reasoned that, to the extent identifiable, the injuries in this case are the fees that should have been paid by the publisher defendants—none of which are based in New York.  Therefore, the simple fact that “New Yorkers can access the infringing content online” is insufficient to establish personal jurisdiction in New York.The Pablo Star case teaches that copyright owners cannot simply point to the fact that material has been posted online and sue anywhere in the United States. Copyright owners must still establish personal jurisdiction over each defendant they sue for infringement. In case like this—in which a foreign copyright owner named as defendants seven separate publishers that are located in various jurisdictions—a copyright owner may need to bring separate actions in different jurisdictions against each defendant. While onerous for foreign copyright owners, the outcome protects against hauling a defendant into a jurisdiction with which it may have few connections.

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

Asante Techs. Inc. v. PMC–Sierra, Inc.

Biovail Corp. v. S.A.C. Capital Mgmt. 2009 WL 2844404 

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

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J. Alexander Lawrence

Do Not Go Gentle Into That Jurisdiction: No “Situs of Injury” Merely Because Copyrighted Material Is Accessible