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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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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Following a recent decision from the Sixth Circuit, anonymous bloggers and other Internet users who post third-party copyrighted material without authorization 

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Anonymous Internet Users Beware: New Presumption in Favor of Unmasking the Losing Anonymous Defendant

Anonymous Internet Users Beware: New Presumption in Favor of Unmasking the Losing Anonymous Defendant | Socially Aware

J. Alexander Lawrence

Following a <a href="https://cases.justia.com/federal/appellate-courts/ca6/16-2188/16-2188-2017-11-28.pdf?ts=1511892106" target="_blank" rel="noopener">recent decision</a> from the Sixth Circuit, anonymous bloggers and other Internet users who post third-party copyrighted material without authorization have cause for concern. They may be unable to preserve their anonymity.In Signature Management Team, LLC v. John Doe, the majority of a panel of the U.S. Court of Appeals for the Sixth Circuit established a new “presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff” in a copyright infringement case. This unmasking presumption is intended to protect the openness of judicial proceedings. Whether to unmask the defendant in such circumstances requires an examination of factors such as the plaintiff’s and public’s interest in knowing the defendant’s identity.The litigation leading to this decision began when Signature Management Team LLC, the plaintiff, filed an action for copyright infringement against John Doe, the defendant. Signature alleged that the defendant posted a hyperlink on his blog to a downloadable copy of a book copyrighted by the plaintiff. The plaintiff sought injunctive relief, including that the district court order the defendant to destroy all copies of the book in his possession, a permanent injunction that the defendant cease all infringing use of the book, and that the defendant be publicly unmasked.In response, the defendant asserted fair-use and copyright-misuse defenses. The defendant also asserted a First Amendment right to speak anonymously and argued that his identity should not be disclosed.During the discovery phase, the plaintiff moved to compel disclosure of the defendant’s identity. The district court applied the test articulated in <a href="https://casetext.com/case/art-of-living-foundation-v-does-1-10" target="_blank" rel="noopener">Art of Living Found. v. Does</a> and declined to unmask the defendant, finding that a possibility existed that he might win on the fair-use argument and thus may not be liable for copyright infringement. The defendant, however, was ordered to reveal his identity to the court and the plaintiff’s attorneys pursuant to a protective order.After the plaintiff prevailed on summary judgment on its copyright infringement claim, the district court again declined to unmask the defendant. The court concluded that unmasking was unnecessary to ensure that no further infringement would occur and that the defendant had already complied with the requested injunctive relief, making further relief unnecessary.The only issue on appeal was the district court’s post-judgment refusal to unmask the defendant. Justices White and Stranch of the Sixth Circuit observed that the decision to remain anonymous—including on the Internet—was “an aspect” of free speech protected by the First Amendment. While courts have developed “balancing tests” weighing the First Amendment’s protection of anonymous speech against a plaintiff’s interest in unmasking, these cases have generally dealt with anonymity rights during the discovery process. The majority found no case had dealt with the situation at hand, i.e., where judgment had been entered against the anonymous defendant.The majority held that, in a post-judgment context, maintaining the anonymity of the defendant raised different concerns than in the discovery phase of the case. Where a judgment had been entered against an anonymous defendant, there was no longer any concern about unmasking an innocent defendant. The majority acknowledged that copyright infringement was not entitled to First Amendment protection, but expressed some reservations that First Amendment rights may still be implicated. In any event, the majority noted that any anonymous speech rights that the defendant may have conflicted with the “important post-judgment” presumption of openness in judicial proceedings. At the same time, the majority recognized that where a defendant has complied with the relief ordered, there was no “practical need” to unmask the defendant.Based on all of these considerations, the majority did not agree that the district court automatically lacked jurisdiction to allow the defendant to remain anonymous when engaged in speech not covered by the First Amendment, finding that the speech here occurred “in the context” of anonymous blogging that is entitled to free speech protection. Instead, the majority found that there is “a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff.”The majority noted that, in deciding whether to unmask a losing defendant, a district court should consider the public interest in open records and the plaintiff’s need to learn the anonymous defendant’s identity to enforce its remedy. The greater these interests, the harder it will be for an anonymous defendant to overcome the unmasking presumption. A defendant can, however, rebut the presumption of openness by showing that he or she engaged in substantial protected speech (other than the infringing conduct, which is not protected) that would be chilled by unmasking.The dissent would have taken a harder line. Justice Suhrheinrich noted that copyright infringement is not protected speech so no balancing should be required. The use of an anonymous blog does not change the fact that the defendant committed copyright infringement and was thus not engaged in protected speech. The dissent further disagreed that there was “no practical need” to unmask the defendant. Refusing to unmask the defendant minimized the effect of the court’s order, downplayed the significance of the defendant’s misconduct, encouraged future infringement, and hindered the plaintiff’s ability to monitor compliance.In summary, anonymous bloggers and other Internet users should be aware that while they may avoid public unmasking in the discovery phase, they may be unable to protect their anonymity if ultimately found liable for copyright infringement. If other courts follow the Sixth Circuit’s lead on this subject, there may now be a presumption in the post-judgment stage in favor of unmasking anonymous defendants on the losing side of a case.