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.

Social

Search

sociallyaware-abajournalweb100-1

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.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

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.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

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.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

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

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

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.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

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.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

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

LinkedIN

In February the U.S Supreme Court heard oral arguments in <a href="http://www.scotusblog.com/wp-content/uploads/2017/07/17-2-opinion-below.pdf" target="_blank" rel="noopener">United States v. Microsoft</a>. At issue is Microsoft’s <a href="https://www.sociallyawareblog.com/2017/11/08/us-v-microsoft/" target="_blank" rel="noopener">challenge to a warrant issued by a U.S. court directing it to produce emails stored in Ireland</a>. With implications for government investigations, privacy law, and multi-national tech companies’ ability to compete globally, the case has attracted significant attention.Over the course of the oral arguments it became clear that rendering a decision in United States v. Microsoft would require the justices to choose between two less-than-satisfactory outcomes: denying the U.S. government access to necessary information, or potentially harming U.S. technology companies’ ability to operate globally.The conundrum the justices face is largely due to the fact that the 1986 law at issue, the Stored Communications Act (SCA), never envisioned the kind of complex, cross-border data storage practices of today.Find out more about the case and how recently introduced legislation known as the CLOUD Act could wind up superseding the Court’s decision in United States v. Microsoft by, among other things, clarifying the SCA’s applicability to foreign-stored data while also providing technology companies with a new vehicle for challenging certain orders that conflict with the laws of the country where data is stored.Read my <a href="https://www.wired.com/story/us-v-microsoft-supreme-court-oral-argument/" target="_blank" rel="noopener">article in Wired</a>.

gettyimages-913295392_small-300x200.jpg

U.S. v. Microsoft Leaves SCOTUS Between a Rock and a Hard Place

U.S. v. Microsoft Leaves SCOTUS Between a Rock and a Hard Place

In February the U.S Supreme Court heard oral arguments in United States v. Microsoft. At issue is Microsoft’s challenge to a warrant issued by a U.S. court dire

Following a recent U.S. district court’s ruling, foreign companies operating cloud-based services may find themselves subject to federal long-arm jurisdiction under the Federal Rules of Civil Procedure 4(k)(2), even if they have no physical presence in the United States. In reaching its decision, the court noted that the question was ripe for consideration by the court of appeals; thus, it remains to be seen whether the decision will stand if appealed.In Plixer International, Inc. v. Scrutinizer GMHB, the District Court of Maine ruled that, while jurisdiction would not exist under Maine’s long-arm statute, the court had specific personal jurisdiction over a German company under federal long-arm statute. Rule 4(k)(2), the federal long-arm statute, provides that serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction as long as exercising jurisdiction is consistent with the U.S. Constitution and laws.This litigation started when Plixer International, Inc., a Maine firm, filed a case against the German defendant for a variety of trademark-related claims, including trademark infringement. The German company moved to dismiss the case. The parties agreed that the German company was not subject to general personal jurisdiction. Thus, the court was left to decide whether the German company was subject to specific personal jurisdiction under federal long-arm statute and Maine’s long-arm statute.To answer the question of whether jurisdiction was consistent with the U.S. Constitution as required under Rule 4(k)(2), the court applied the “minimum contacts” test set forth in the U.S. Supreme Court’s decision in <a href="https://supreme.justia.com/cases/federal/us/326/310/case.html" target="_blank" rel="noopener noreferrer">International Shoe v. Washington</a>. The test asks whether the defendant has sufficient contacts with the forum such that maintaining the suit in that forum does not offend “traditional notions of fair play and substantial justice.”Under its analysis of federal long-arm statute, the Plixer court focused on whether the German company purposefully availed itself of the privilege of conducting business in the forum State (here, the United States as a whole). Notably, the German company had no physical presence in the United States, but offered cloud-based services from an interactive website and had some U.S.-based revenue. Notwithstanding these limited contacts, the court was satisfied that the German company had minimum contacts with the United States to be subject to personal jurisdiction.As the First Circuit (the applicable appellate court) has yet to determine whether a foreign company can be subject to specific jurisdiction on the basis of an interactive website or sales from such an interactive website, the district court considered some of the factors weighed in other circuits to determine if a website owner would be subject to personal jurisdiction. Such factors included, for example, whether a defendant uses a website to physically send items into the forum state or whether a defendant can be said to be directly targeting forum state residents.The district court found no evidence that the German company “targeted” the United States in particular. Nonetheless, the court went on to find that there were sufficient factors that the German company “purposefully availed” itself of the United States.In particular, the Plixer court noted, German company operated a “highly interactive website that sold its cloud-based services directly through the website, that it was open to business throughout the world, that it accepted recurrent business from the United States in a substantial amount, and that it did so knowingly.” The court also cited the German company’s trademark application in the United States as another factor showing the company’s “desire to deal with the American market.”While recognizing the concern, the court did not agree that its decision might open up all types of foreign website operators to lawsuits in the United States. The court held that the German company engaged in “sizeable and continuing commerce with United States customers” through its website and should not be surprised by the U.S. litigation. The court reached this conclusion notwithstanding that the German company made only about $196,000 in U.S. sales over the prior three and a half years.While being forced to litigate in the United States imposed a significant burden, the court ultimately concluded that exercising specific jurisdiction over the German company was reasonable after considering all the facts and circumstances.With respect to Maine long-arm statute, the court found that personal jurisdiction did not arise, noting that the German company only had “attenuated contacts” with Maine, that the amount of business from that State was “miniscule.” The company had only two Maine customers.Foreign cloud-based service providers should take note of the Plixer decision. Just because they do not have a physical presence in the United States, or ship any products for sale into the United States, does not necessarily mean they are safe from being hauled into a U.S. court, including being forced to defend themselves in states where they may have few if any customers and that they might not even be able to locate on a map.*                   *                  *For other Socially Aware posts addressing litigation-related issues regarding cloud storage solutions, please see: <a href="https://www.sociallyawareblog.com/2017/11/08/us-v-microsoft/" target="_blank" rel="noopener noreferrer">SCOTUS to Resolve Lower-Court Dispute Over U.S. Warrants Seeking Foreign-Stored User Data</a>; <a href="http://www.sociallyawareblog.com/2017/02/23/google-ordered-foreign-stored-user-data/">Google Ordered to Comply with Warrant for Foreign-Stored User Data</a>; <a href="http://www.sociallyawareblog.com/2017/05/03/court-orders-google-foreign-stored-data/#more-6782">Court Orders Google to Turn Over Foreign-Stored Data</a>; and <a href="http://www.sociallyawareblog.com/2016/10/25/email-outside-us/">Second Circuit: Email Stored Outside the U.S. Might Be Beyond Government’s Reach</a>.

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

lawrence_j_blog_150x150.png

lawrence_j_common_640x280.jpg

lawrence_j_heroretina_2700x1160.jpg

lawrence_j_mobileretina_750x1040.jpg

lawrence_j_social_600x600.jpg

Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

J. Lawrence

J. Alexander Lawrence

network-gettyimages-124301194-600px-300x225.jpg

Foreign Cloud-Based Service Providers May Be Subject to Personal Jurisdiction in the United States

Foreign Cloud-Based Service Providers May Be Subject to Personal Jurisdiction in the United States

Following a recent U.S. district court’s ruling, foreign companies operating cloud-based services may find themselves subject to federal long-arm jurisdiction u

The European Commission has announced new draft laws that would give consumers new remedies where digital content supplied online is defective or not as described by the seller.On Dec. 9, 2015, the European Commission proposed two new directives on the supply of digital content and the online sale of goods. In doing so, the Commission is making progress towards one of the main goals in the Digital Single Market Strategy (the “DSM Strategy”) announced in May 2015: to strengthen the European digital economy and increase consumer confidence in trading across EU Member States.This is not the first time that the Commission has tried to align consumer laws across the EU; its last attempt at a Common European Sales Law faltered earlier this year. But the Commission has now proposed two new directives, dealing both with contracts for the supply of digital content and other online sales (the “Proposed Directives”).National parliaments can raise objections to the Proposed Directives within eight weeks, on the grounds of non-compliance with the subsidiarity principle—that is, by arguing that that regulation of digital content and online sales is more effectively dealt with at a national level.<h3>Objectives</h3>Part of the issue with previous EU legislative initiatives in this area is that “harmonized” has really meant “the same as long as a country doesn’t want to do anything different.” This time, the Proposed Directives have been drafted as so-called “maximum harmonization measures,” which would preclude Member States from providing any greater or lesser protection on the matters falling within their scope. The Commission hopes that this consistent approach across Member States will encourage consumers to enter into transactions across EU borders, while also allowing traders to simplify their legal documentation by using a single set of terms and conditions for all customers within the EU.An outline of the scope and key provisions of each of the Proposed Directives, as well as the effect on English law, are summarized after the jump.<h3>Draft Digital Content Directive</h3>ScopeThe draft digital content directive would apply only in business-to-consumer sales, and would not extend to small and medium-sized enterprises—nor to digital content providers in certain sectors such as financial services, gambling or healthcare. The rules would apply regardless of the method of sale, unlike the draft online goods directive. The directive would cover consumers who provide non-monetary consideration in exchange for digital content, such as personal data.Key Provisions <ul><li>Digital content would now expressly include cloud computing and use of social media, and would attract quality standards and statutory remedies for consumers.</li><li>Digital content will be required to conform to key information provided to consumers, such as quality, interoperability, accessibility and security. If content does not conform, the consumer will have rights to require the provider to make it conform, or to receive a refund or terminate the contract.</li><li>Under present English law, the Consumer Rights Act 2015 (“CRA”) applies only where digital content has been paid for. The draft digital content directive would extend the scope of consumer rights to cases where the buyer provides non-monetary consideration such as personal data, thus providing greater protection to consumers than is currently being offered under the CRA. On any termination, businesses would be prohibited from making further use of non-monetary consideration provided by consumers.</li><li>Digital content would need to be provided instantly and in its most recent version, unless otherwise agreed. Where the content is not provided instantly or at its agreed time, the consumer would have a right to terminate immediately.</li><li>The draft digital content directive would remove the current 6-month time limit under the CRA for the presumption that defects are present on delivery (unless the consumer had been forewarned that the digital content was incompatible with the consumer’s digital environment).</li><li>Consumers will have the right to terminate a contract under which digital content is provided on an ongoing basis, if the business modifies the contract to the detriment of the consumer. Furthermore, the business would be required to give notice of the actual changes, and would only be entitled to implement those changes if the contract permitted it.</li></ul><h3>Draft Online Goods Directive</h3>ScopeAs with the draft digital content directive, the draft online goods directive would only apply in business-to-consumer sales. Only goods sold online or otherwise at a distance fall within scope. As such, any face-to-face sales are not covered. Contracts for the supply of services would not be subject to this directive. Where a contract is for the supply of both goods and services, the rules would apply only to those elements of the contract that relate to the goods.Key Provisions<ul><li>Consumers would no longer have a right to reject goods unless a repair or replacement had first been requested and been deemed unsuccessful.</li><li>Emerging defects that are presumed to be present on delivery currently have a time limit of six months under the CRA. The draft online goods directive would extend this to two years.</li><li>In the context of known defects, traders would be required to obtain express consent from consumers in order to escape liability. It will no longer be sufficient to rely on such defects being obvious, or being brought to the customer’s attention.</li></ul>While some Member States have expressed concerns regarding the practicalities of having separate rules for online and offline sales, there does appear to be support for action at the EU-level regarding digital content. If the Proposed Directives are successfully adopted in accordance with the ordinary legislative procedure, the Commission will finally be putting its push for harmonization into practice.

Autodesk

HM Revenue and Customs

Home Office, Department for Communities and Local Government, Department of Health

Intel

ITworx

Alistair Maughan

Harmonizing B2C Online Sales of Goods and Digital Content in Europe