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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Lawrence W. Gallick

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.

Social Links: Going Back to Cali

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On August 8, 2024, the U.S. District Court for the Eastern District of Virginia in <a href="https://scholar.google.com/scholar_case?case=17363838191298839802&q=Lovinfosse+v.+Lowe%27s+Home+Centers,+LLP&hl=en&as_sdt=20006&as_vis=1" target="_blank">Lovinfosse v. Lowe’s Home Centers, LLP</a> addressed the enforceability of an arbitration clause in Lowe’s terms of service, serving as a reminder of the problems that may arise from terms of service (TOS) language allowing unilateral modifications. The plaintiff, Eleanor Lovinfosse, alleged that the retailer’s use of <a href="https://www.gov.uk/government/publications/online-choice-architecture-how-digital-design-can-harm-competition-and-consumers" target="_blank">Online Choice Architecture (OCA)</a> led her to purchase a water hose labeled as “Required for Use” while buying a washing machine online. Lovinfosse later discovered the washing machine came with all necessary parts, rendering the additional purchase unnecessary. She subsequently filed a class action lawsuit against the retailer, alleging deceptive practices.Lowe’s maintained the dispute is subject to the arbitration requirement in its TOS; arguing that Lovinfosse agreed to the terms by clicking the “Place Order” button during checkout.Directly below the “Place Order” button, hyperlinked text states: “By placing an order, I agree to Lowe’s Terms and Privacy Statement.” This allows users to reference the <a href="https://www.lowes.com/l/about/terms-and-conditions-of-use" target="_blank">full text of the terms</a> if they click the link. Lovinfosse did not click on the hyperlinked terms and asserted that she was not aware of their contents, including the arbitration clause.The court agreed with the defendant on this point, reasoning that based on the layout and language of the website, Lovinfosse had constructive notice of the terms and had manifested assent by moving forward with the order.The court then turned its analysis to the unilateral modification clause within the TOS, which stated:“You agree that Lowe’s may change, terminate, modify, add, end or delete any of these terms and conditions (including, without limitation, the Terms) under which the Site is offered at any time and without notice to you. Lowe’s, in its sole and absolute discretion, reserves the right to update, change, terminate, suspend, modify, add, end or delete any of these Terms . . . , in whole or in part, at any time with or without notice.”Although the arbitration clause existed as part of the TOS at the time Lovinfosse agreed to them, the unilateral modification clause purported to allow the retailer to change its terms at any time and without notice. The court concluded that, while Lovinfosse may have agreed to the TOS, the unrestricted ability to modify the terms without notice made the arbitration clause illusory and unenforceable.The court further reasoned that a customer who makes a single transaction would have no way of knowing if the terms had changed unless they constantly checked the website, highlighting that the lack of required notice distinguished this case from others where unilateral modification clauses were upheld.The court’s reasoning in Lovinfosse is reminiscent of the conclusions drawn in <a href="https://casetext.com/case/harris-v-blockbuster-inc" target="_blank">Harris v. Blockbuster Inc.</a>, a Northern District of Texas decision from 2009. In that case, the court similarly held that the unilateral modification clause in Blockbuster’s online terms of use rendered the arbitration clause illusory and unenforceable. The court reasoned that Blockbuster could, in theory, unilaterally modify the arbitration provisions and apply those modified provisions to earlier disputes.The case law regarding unilateral modification in online terms has shifted over the years. After Harris, unilateral modification requirements appeared to loosen, as evidenced by the 2014 San Francisco Supreme Court decision in <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1656&context=historical" target="_blank">Rodriguez v. Instagram</a>. In Rodriguez, Instagram’s terms stated that users would be notified of material changes to the terms, and the meaning of “material change” would be determined at Instagram’s sole discretion.Though Instagram had sole discretion to determine when to give notice of a change in its terms, the court upheld the unilateral modification of its terms of use – noting that Instagram had in fact provided reasonable advance notice via email and that continued use of the service constituted Rodriguez’s acceptance of the new terms.More recently, decisions like <a href="https://casetext.com/case/sifuentes-v-dropbox-inc-1" target="_blank">Sifuentes v. Dropbox</a> have permitted unilateral modification but made it much harder to meet the requirement for giving notice. In Sifuentes, the United States District Court for the Northern District of California reviewed Dropbox’s ability to enforce amendments to its terms, which contained a notice provision that was similar to Instagram’s. The court held that Dropbox could not enforce its amended TOS because it failed to show that the plaintiff’s continued use of the service was conditioned on agreement to the amendments.The court found that the plaintiff also didn’t have actual notice of the modified terms because Dropbox did not show that the plaintiff had read the email notifications of the amendments. The Sifuentes court further characterized the provision as “essentially disavow[ing] any obligation to alert [users] to changes.” This decision underscored practical challenges of meeting the necessary notice standard, but these cases did not focus on or require the Harris standard of only enforcing unilateral amendment provisions where the terms themselves required the provider to give notice (presumably in addition to such notice being given where applicable to the case’s facts).Lovinfosse appears to mark a return to the stricter stance seen in Harris, serving as a reminder of the limitations and potential pitfalls of unilateral modification clauses in TOS. While the court acknowledged that the plaintiff had agreed to the terms, the ability to change those terms without notice made the arbitration clause illusory and unenforceable.In many ways, this is a frustrating standard for companies that have followed best practices when implementing enforceable terms, only to face the risk that agreed upon contractual terms which have not changed might be declared unenforceable simply because they could change. As companies navigate the complexities of digital contracts, Lovinfosse underscores the necessity of transparency in consumer agreements.

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

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.











Anthony Ramirez

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

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Tricia Matibag is an associate in the Boston office of Morrison Foerster and a member of the firm’s Technology Transactions Group.

Tricia Matibag

Lose Your Illusion: District Court Holds that Unilateral Modification Clause Makes ToS Unenforceable

Social Links is our ongoing series here at Socially Aware that rounds up current developments at the intersection of social media, policy, research, and the law.Embedding social media posts can be considered copyright infringement…but is it?A Manhattan federal judge <a rel="noopener" target="_blank" href="https://www.rangefinderonline.com/news-features/industry-news/judge-sides-with-photographer-in-instagram-embed-lawsuit/">ruled in August</a> 2021 that the practice of embedding social media posts on third-party websites, without permission from the content owner, could violate the owner’s copyright.The case centered around a 2017 video of a starving polar bear that nature photographer Paul Nicklen took and posted on his Instagram and Facebook accounts. Its purpose was to highlight the effects of global warming. When the image went viral, Sinclair Broadcasting Group published an article about it and embedded Nicklen’s post without obtaining his permission.<a rel="noopener" target="_blank" href="https://www.thompsoncoburn.com/docs/default-source/default-document-library/08-02-21nicklin.pdf">In reaching his decision</a>, U.S. District Judge Jed Rakoff <a rel="noopener" target="_blank" href="https://www.reuters.com/legal/transactional/manhattan-judge-rejects-server-test-internet-copyright-infringement-2021-07-30/">rejected the “server test” from the 9th Circuit Court of Appeals</a>, which generally holds that embedding content from a third party’s social media account only violates the content owner’s copyright if a copy is stored on the defendant’s servers.A recent decision on this very topic, however, reveals a different perspective on embedding practices and the “server test.” Reuters reports that a <a rel="noopener" target="_blank" href="https://www.reuters.com/legal/transactional/instagram-dodges-photogs-copyright-lawsuit-over-embedding-feature-2021-09-20/">San Francisco federal court rejected a group of photographers’ claim</a>s that Instagram’s embedding tool infringed on their copyrights. <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/egpbkyoxrvq/IP%20INSTAGRAM%20COPYRIGHT%20order.pdf">Judge Charles Breyer of the U.S. District Court for the Northern District of California ruled that</a> “the Instagram feature doesn’t violate the photographers’ exclusive right to display the pictures publicly because third-party websites that embed the images don’t store their own copies of them.” This decision is second in a series that rejects the “server test” cited above.Photographers Alexis Hunley and Matthew Brauer led the <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/bdwpkwbmepm/frankel-instagram--classcomplaint.pdf">class action complaint</a> in May, followed by Instagram’s <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/lgvdwkozypo/IP%20INSTAGRAM%20COPYRIGHT%20mtd.pdf">move to dismiss in July</a>. According to Reuters, Judge Breyer noted that “Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any “tangible medium of expression…. Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work.”These decisions will most likely end in appeals. We will continue to monitor the developments as they unfold.Harnessing the wisdom – and skills – of the crowd to combat social media’s trust issuesElections, COVID-19 vaccinations, Gabrielle Petito and Brian Laundrie’s disappearance, conspiracy theories about other missing persons: each represents a category that has cast social media platforms under intense scrutiny about their handling of the information – or misinformation – that is published and appears across the social media landscape.While social media platforms employ fact checkers to validate the veracity of posts, the staggering volume of posts on any given day makes it impossible for them to employ enough people to confirm or reject every entry on every channel globally, 24/7. Scale, not to mention cost, remains the central issue.A <a rel="noopener" target="_blank" href="https://www.wired.com/story/could-wisdom-of-crowds-help-fix-social-media-trust-problem/">recent Wired article</a> suggests that using the “wisdom of the crowds” – groups of lay people – often matches or surpasses the accuracy that professional fact checkers provide. In addition to cost savings, <a rel="noopener" target="_blank" href="https://www.science.org/doi/10.1126/sciadv.abf4393">this model also offers something that professional fact checker programs do not: scalability</a>.These issues around trust and misinformation on social media platforms will continue to dominate headlines across technological, legal, and public opinion forums.Social media algorithms result in surprising and unexpected moments for those grieving lost loved ones and friendsMany of us have experienced moments when social media serves up posts, memories, or birthday reminders of those who have passed. <a rel="noopener" target="_blank" href="https://www.wired.com/story/social-media-algorithms-are-controlling-how-i-grieve/">A recent Wired article</a> explores the emotional and psychological effects of those on the receiving end of such social media notices. Particularly in the COVID-19 era, when many have experienced sudden losses of loved ones, friends, and family members, social media platforms have provided much-needed forums for those wanting to share news, information, tributes, memorials, and memories of those who have passed. Many of the major social media outlets have mechanisms and settings to help family members and friends manage their deceased loved ones’ accounts in respectful ways. Facebook offers both <a rel="noopener" target="_blank" href="https://www.facebook.com/help/1017717331640041/">memorialized accounts</a> and <a rel="noopener" target="_blank" href="https://www.facebook.com/help/1568013990080948">legacy contact settings</a>; Instagram provides similar <a rel="noopener" target="_blank" href="https://help.instagram.com/231764660354188">memorialization settings</a>; and Twitter has <a rel="noopener" target="_blank" href="https://help.twitter.com/en/rules-and-policies/contact-twitter-about-a-deceased-family-members-account">processes in place</a> to work with an authorized estate representative to deactivate an account. Google <a rel="noopener" target="_blank" href="https://www.cnbc.com/2019/05/28/how-to-set-google-to-delete-everything-after-i-die.html">provides a similarly robust program</a>, allowing individuals to designate “digital beneficiaries” who will act on their behalf to manage their accounts once they’ve passed.While none of us wants to think about end-of-life directives, taking into consideration the digital footprint that we leave behind on social media as part of our legacy is another factor in the technological landscape where we live today.Young people, social media, and emerging from COVID-19Much has been written in the last 18 months about the effects that COVID-19 has had on all of us, but in particular, on the youth in the United States. Common Sense, Hopelab, and the California Healthcare Foundation published Coping with COVID-19: How Young People Use Digital Media to Manage Their Mental Health earlier this year. It examined how youth used social media and other online tools to cope with the separation and isolation from friends and other social structures that are vital to their intellectual, social, and emotional development.While depression is on the rise among young people (as this infographic explains), there’s good news on the horizon. Recent analyses have noticed <a rel="noopener" target="_blank" href="https://onezero.medium.com/maybe-social-media-isnt-making-teens-depressed-after-all-and-here-s-what-likely-is-bb49651cda16">positive trends among young people with decreased levels of depression</a> and cited two major factors that occurred during the pandemic: teens are getting more sleep, and they’re spending more time with family.In addition, GLAAD (formerly known as the Gay and Lesbian Alliance Against Defamation) recently published its first-ever Social Media Safety Index report that examined social media platforms and LGBTQ+ youths’ involvement and usage. While the report cited an <a rel="noopener" target="_blank" href="https://www.glaad.org/smsi">increase in hate speech and other hostile forums</a> on social media, other analysts provided a more nuanced interpretation, citing that <a rel="noopener" target="_blank" href="https://onezero.medium.com/social-media-when-youre-queer-hazard-or-haven-ab01dfc53611">social media platforms provide a much-needed lifeline for LGBTQ+ youth as they seek information and support</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).

Social Links: Embedding social media posts can be considered copyright infringement…but is it?

Social Links is our ongoing series here at Socially Aware that rounds up current developments at the intersection of social media, policy, research, and the law

Social Links: Embedding social media posts can be considered copyright infringement…but is it?

As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of communicating, as well as disseminating and using content. Sometimes, however, traditional legal standards apply to these new platforms in a straightforward manner. At least, that is what the court found in <a href="https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2018cv02027/350557/118/0.pdf?ts=1551783529" target="_blank" rel="noopener">Dancel v. Groupon, Inc.</a>, a putative class action against Groupon, Inc., alleging that Groupon’s use of images originally posted on the social media site Instagram violated users’ rights under the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62" target="_blank" rel="noopener">Illinois Right of Publicity Act</a> (IRPA).Groupon, a website that offers consumers deals on goods and services, built a widget intended to provide its users a window into businesses for which Groupon offered deals. The widget used Instagram’s API to find photos that Instagram users had taken at particular locations, and then displayed those images under the deals offered on Groupon’s own website.  When a visitor to the Groupon page hovered his or her mouse over the Instagram images, the Groupon user could see the username of the person who posted the photo on Instagram and an associated caption, if there was one.Dancel, who maintains an Instagram account with the username “meowchristine,” took a selfie of herself and her boyfriend in front of a restaurant and posted it on Instagram with a <a href="https://www.lifewire.com/define-tagging-3486207" target="_blank" rel="noopener">tag</a> noting the name of the restaurant. Groupon later displayed this photograph, among others, in connection with its deal for the same restaurant.Dancel moved to certify a class of all persons in the United States who maintained Instagram accounts and whose photographs were acquired and used on a Groupon webpage for an Illinois business, and a subclass of all members whose likeness appeared in any such photograph.  The court, however, denied Dancel’s motion for class certification pursuant to <a href="https://www.law.cornell.edu/rules/frcp/rule_23" target="_blank" rel="noopener">Federal Rule of Civil Procedure 23(b)(3)</a>, which requires a plaintiff seeking certification to demonstrate that common questions of law or fact predominate in the class (as opposed to questions affecting individual members of the class).According to the court, there was no single, common answer as to whether Instagram usernames could establish the identity of a particular person under the IRPA. The use of an “identity” under the IRPA requires that the use be sufficient to identify the person to a reasonable audience, but the court found that the answer to this question was an individual one, making the claim inappropriate for a class action.While this ruling is informative with respect to the relatively narrow issue of class actions alleging violations of the IRPA based on the use of social-media handles and related images in a commercial context, the result might be different in other jurisdictions or with slightly different facts. State law governs the right-of-publicity, and variations in state statutes and state courts’ interpretations of common law rights could impact the outcome of a similar claim in another jurisdiction. For example, in California the common law right of publicity broadly interprets “identity” to mean anything that evokes a person’s identity. In addition, the court in Dancer dismissed without explanation the idea that a photo of a person would clearly “identify” that person under the IRPA for purposes of class certification, though it is not obvious that another court would reach the same conclusion.Moreover, the court’s ruling concerned the issue of class certification, but did not directly address the merits of the underlying right of publicity claim itself. While class actions present potentially greater liability for companies, even individual claims can be problematic. Accordingly, companies that use user-generated content in connection with their social media posts should take note of this case for the questions it did not answer, and assess their use of such content with an eye to the potential for publicity-rights-related claims.More generally, Dancel is a good reminder that user-generated content posted on social media platforms is not necessarily freely available for use in other contexts. We saw this in the well-known case <a href="//casetext.com/case/agence-france-presse-v-morel" target="_blank" rel="noopener">AFP v. Morel</a>, in which a wire service and photo agency were held to have infringed the copyright in photographs taken from Twitter without the permission of the photographer who posted them. And another recent case, <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2017cv03144/473371/169/" target="_blank" rel="noopener">Goldman v. Breitbart News Network, LLC</a>, <a href="https://www.sociallyawareblog.com/2018/03/12/social-links-inline-linking-to-tweet-containing-photo-could-constitute-copyright-infringement-proposed-california-legislation-could-restrict-website-operators-efforts-to-have-minors-consent/" target="_blank" rel="noopener">held</a> that merely embedding a tweet (i.e., linking to a tweet) containing a photograph without the photographer’s permission constitutes infringement.

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What’s in a (User)Name?

As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of com

What’s in a (User)Name?

Companies that offer services, whether online or offline, to consumers on a subscription or other automatic renewal basis should be aware that such offers are heavily regulated at both the federal and state levels. A recent <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180SB313" target="_blank" rel="noopener">amendment to Section 17602 of California’s Business and Professions Code</a> provides a good opportunity for businesses that make subscription offers to review their practices. As of July 1, 2018, the obligations under California law will expand in two ways that may require businesses to update those practices.The first change relates to the information that businesses must provide to consumers regarding the terms of a subscription offer. The current law already requires a business to provide certain information about the renewal process—such as the amount of the recurring charges, the length of the renewal period, and the cancellation policy—both before the consumer accepts the agreement, and afterwards in an acknowledgement. The amendment provides that, as of July 1, 2018, if the offer includes any free trial or gift component, the information provided to consumers must also include a “clear and conspicuous explanation of the price that will be charged after the trial ends or the manner in which the subscription or purchasing agreement pricing will change upon conclusion of the trial.”The second change relates to the types of cancelation mechanisms that a business must make available. Under the current law, businesses must provide a cancelation mechanism that may include a toll-free phone number, email address, postal address, or another “cost-effective, timely, and easy-to-use” mechanism. The amendment provides that, as of July 1, 2018, consumers who accept a subscription offer online must have the option to terminate it exclusively online (instead of, for example, being required to call a toll-free number or send a written notice by postal mail).Accordingly, businesses that offer consumer subscriptions should take steps before July to ensure that:<ul><li>if the consumer receives a free or discounted trial, the consumer also receives clear and conspicuous notice of the price to be charged, or any changes to the price being charged, after the trial ends; and</li><li>if the consumer originally entered into a subscription online, the consumer also receives an entirely online mechanism for canceling the automatic renewal.</li></ul>Local district attorneys in California have recently sought to enforce California’s automatic renewal law, and plaintiffs’ attorneys have also attempted to bring class actions against companies related to alleged violations of the law, in some cases framed as a violation of California’s unfair competition law.In addition to the obligations under the California law, businesses should also be aware of other legal considerations affecting subscription programs and free-trial offers. For example, certain states require that a business provide a reminder notice to a subscription customer before charging him or her, if the renewal period exceeds a certain length of time—typically six months. The federal <a href="https://www.ftc.gov/enforcement/statutes/restore-online-shoppers-confidence-act" target="_blank" rel="noopener">Restore Online Shopper’s Confidence Act (ROSCA)</a>, which is enforced by the Federal Trade Commission (FTC), also imposes certain obligations. The FTC recently obtained a <a href="https://www.ftc.gov/news-events/press-releases/2017/11/online-lingerie-marketer-prohibited-deceiving-shoppers-about" target="_blank" rel="noopener">$1.3 million judgment against AdoreMe Inc.</a>—an online lingerie marketer that allegedly failed to provide a simple mechanism to stop recurring charges. The defendant had allegedly made it hard for consumers to cancel memberships, including by limiting the mechanisms for cancelation requests, and inadequately staffing its customer service department.The revisions to the California law, along with the patchwork of other applicable federal and state laws—and the attention from regulators, state attorneys and plaintiffs’ counsel—make it crucial for any business offering consumers a subscription or similar auto-renewal product or service to review its practices to ensure compliance.

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Amended California Law Expands Requirements for Consumer Subscriptions

Amended California Law Expands Requirements for Consumer Subscriptions

Companies that offer services, whether online or offline, to consumers on a subscription or other automatic renewal basis should be aware that such offers are h