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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CHALLENGE TO TEXAS AGE-VERIFICATION LAW RETURNED TO LOWER COURTThe U.S. Court of Appeals for the Fifth Circuit has sent a challenge to Texas’s controversial <a href="https://www.statesman.com/story/news/state/2024/09/13/scope-act-texas-hb-18-social-media-children-personal-data-online-judge-robert-pitman-block/75178891007/" target="_blank">online age verification law</a> back to district court for additional clarification, while leaving the lower court’s injunction blocking the legislation in place. In its current form, the law requires that companies (including social media platforms) that host or distribute digital content verify a user’s age if more than one-third of the content is “sexually harmful to minors.”<a href="https://aboutblaw.com/bgdo" target="_blank">In its opinion</a>, the Fifth Circuit wrote that the lower court failed to properly resolve who is covered by the law and the type of content under its purview. Though the law was set to go into effect on September 1, 2024, a <a href="https://ccianet.org/wp-content/uploads/2024/07/CCIA-and-NetChoice-v.-Paxton-Complaint-ECF-1.pdf" target="_blank">challenge filed in July 2024</a> by Computer & Communications Industry Association and NetChoice LLC secured a partial injunction in the U.S. District Court for the Western District of Texas, which effectively blocked implementation on First Amendment grounds. Texas Attorney General Ken Paxton immediately appealed the decision, which brings us to where we are today. Privacy concerns are at the heart of the case, with critics maintaining that this type of age verification law would put all users at significant risk for exploitation as a result of the data collected for verification. Proponents argue that the proliferation of smartphones has made pornographic content easily available to children and only legislation can protect them from themselves. <a href="https://www.newsweek.com/states-porn-age-verification-free-speech-1903108" target="_blank">Similar legislation</a> has been proposed or enacted in many states, prompting a <a href="https://www.sociallyawareblog.com/topics/state-social-media-laws-targeted-at-teens-face-opposition" target="_blank">slew of challenges</a>.FTC GOES AFTER SITEJABBER FOR FAKE PRODUCT REVIEWSAs we <a href="/topics/socially-aware-fake-reviews-real-rulings-and-an-epic-fail" target="_self">reported last month</a>, the Federal Trade Commission (FTC) is not playing around when it comes to fraudulent online reviews. It wasted no time when taking action against online review platform Sitejabber for violations of <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf" target="_blank">new FTC rules</a> prohibiting false or deceptive customer testimonials and has issued a proposed consent order in a 5–0 decision. According to <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/SiteJabber-Complaint.pdf" target="_blank">the complaint</a>, Sitejabber collected ratings and reviews for its online business clients from consumers at the time of purchase, rather than after purchasers had an opportunity to actually use the products, and used this data to deceptively inflate its clients’ ratings. Commissioner Melissa Holyoak pointed out in her <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-sitejabber-statement.pdf" target="_blank">concurring statement</a> that Sitejabber’s embeddable web widget for instant product reviews is “an inherently deceptive tool.” Commissioner Andrew Ferguson <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-sitejabber-concurring-statement.pdf" target="_blank">agreed</a>, adding: “These widgets had no purpose other than to represent that those product ratings were derived from the reviews of consumers who had received and had a chance to use the product in question.” If it does not comply with FTC rules before a final consent order is issued, Sitejabber could be subject to fines of up to $51,744 for each violation.OMAR ABDULAZIZ LOSES APPEAL AGAINST XOmar Abdulaziz, a dissident Saudi blogger, activist, and <a href="https://www.imdb.com/title/tt11382384/?ref_=nm_flmg_knf_t_2" target="_blank">longtime associate of Jamal Khashoggi</a>, has lost his appeal against X. Abdulaziz alleged that X (known as Twitter at the time) improperly shared his private information with the Saudi government, leading to his arrest and torture. Abdulaziz filed the appeal after a California district court <a href="https://casetext.com/case/abdulaziz-v-twitter-inc-1" target="_blank">dismissed the complaint</a> for failure to plead the causation needed for Article III standing and negligence. The Ninth Circuit Court of Appeals disagreed with the lower court’s Article III stance, finding that the allegations in the complaint were sufficient for standing, but still rejected the appeal on statute of limitations grounds. The court <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/21-16195/21-16195-2024-11-06.html" target="_blank">ruled</a> that Abdulaziz’s claim was barred by California’s statute of limitations since it was not filed until 2019, though X notified him as early as 2015 that state-sponsored actors may have targeted his account.TIKTOK ORDERED TO SHUTTER OFFICES IN CANADACiting national security concerns, the Canadian government has <a href="https://www.canada.ca/en/innovation-science-economic-development/news/2024/11/government-of-canada-orders-the-wind-up-of-tiktok-technology-canada-inc-following-a-national-security-review-under-the-investment-canada-act.html" target="_blank">issued an order</a> requiring TikTok to shut down operations and close its offices in Canada. Though the order is light on details, Canadian intelligence agencies have long <a href="https://www.cbc.ca/news/politics/csis-tikok-vigneault-1.7206000">expressed apprehension</a> over the app’s data security and ties to the Chinese government. Canada has banned the app on government-issued devices since 2023 (like <a href="https://www.pbs.org/newshour/world/these-countries-have-already-banned-tiktok">many other countries</a>), but this new order requires TikTok to completely end operations at their Toronto and Vancouver offices. In a <a href="https://newsroom.tiktok.com/en-ca/our-response-to-canadas-order-to-shut-down-tiktok-canada-ca">statement</a>, TikTok pointed out that this action will result in the loss of hundreds of high-paying jobs and have pledged to fight it in court. The order does not block the app for Canadian citizens and content creators, though other countries <a href="https://www.npr.org/2024/04/24/1246663779/biden-ban-tiktok-us">have proposed</a> exactly that. University of Ottawa professor Michael Geist found the ruling misguided, <a href="https://www.michaelgeist.ca/2024/11/canadian-government-to-ban-tiktok-the-company-not-the-app/">writing</a> “[B]anning the company rather than the app may actually make matters worse since the risks associated with the app will remain but the ability to hold the company accountable will be weakened.”OPENAI TAKES PROACTIVE MEASURES FOR ELECTION INTEGRITYOpenAI’s wildly popular generative AI chatbot, ChatGPT, <a href="https://www.cnbc.com/2024/11/08/chatgpt-blocked-250000-image-generations-of-presidential-candidates.html">actively blocked</a> more than 250,000 requests to generate images of U.S. presidential candidates ahead of the election and <a href="https://techcrunch.com/2024/11/08/chatgpt-told-2m-people-to-get-their-election-news-elsewhere-and-rejected-250k-deepfakes/" target="_blank">redirected millions</a> of users to trusted news sites such as Reuters and the Associated Press when the chatbot was asked for candidate information. In a <a href="https://openai.com/index/how-openai-is-approaching-2024-worldwide-elections/" target="_blank">blog</a> posted on its official site, OpenAI detailed the steps taken to ensure its product would not be used for nefarious purposes, writing: “Protecting the integrity of elections requires collaboration from every corner of the democratic process, and we want to make sure our technology is not used in a way that could undermine this process.”DOMAIN NAMES CONTINUE TO INCREASE IN VALUEIn other OpenAI news, the company has purchased the domain <a href="https://chat.com/" target="_blank">chat.com</a> for <a href="https://www.theverge.com/2024/11/6/24289768/openai-chat-chatgpt-sam-altman-hubspot" target="_blank">reportedly</a> more than $ 10 million. The simpler URL is likely to position OpenAI's ChatGPT tool at the forefront of consumer awareness, and “Chat it” may soon become as ubiquitous as “Google it” in the online lexicon. Though the price tag may seem steep, this is probably a <a href="https://www.businessinsider.com/openai-acquires-chat-com-url-website-domain-2024-11" target="_blank">savvy move</a>. URL familiarity has become crucial in the digital marketplace and simple, memorable domain names are now extremely valuable properties. Former MTV VJ Adam Curry was quite possibly the first person to realize this, which may be the weirdest sentence you’ll read this month. He started <a href="https://mtv.com/" target="_blank">mtv.com</a> way back in 1994, but the network was uninterested in getting involved with this newfangled internet thing, so they let him have the domain. When they realized what a staggering mistake they made, <a href="https://law.justia.com/cases/federal/district-courts/FSupp/867/202/1456301/" target="_blank">lawsuits soon followed</a>.

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

Newsom Vetoes AI BillCalifornia Governor Gavin Newsom has vetoed <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB1047" target="_blank">SB-1047</a>. The controversial bill was intended to establish safety guidelines for artificial intelligence models and would have been the first significant piece of state AI legislation in the country. Though it had many <a href="https://www.latimes.com/entertainment-arts/business/story/2024-09-24/mark-hamill-jane-fonda-joseph-gordon-levitt-sign-letter-in-support-of-ai-safety-bill-sb-1047" target="_blank">high-profile supporters</a>, the Governor ultimately felt the bill went too far and would hamstring the state’s growing AI industry. In a <a href="https://www.gov.ca.gov/wp-content/uploads/2024/09/SB-1047-Veto-Message.pdf" target="_blank">statement to the Senate</a>, Newsom wrote: “While well-intentioned, SB-1047 does not take into account whether an AI system is deployed in high-risk environments, involves critical decision-making or the use of sensitive data. Instead, the bill applies stringent standards to even the most basic functions — so long as a large system deploys it. I do not believe this is the best approach to protecting the public from real threats posed by the technology.” He also announced that the state will partner with several industry insiders, including <a href="https://profiles.stanford.edu/fei-fei-li" target="_blank">Dr. Fei-Fei Li</a> (who opposed the legislation), to develop guardrails around powerful AI models. State Senator Scott Wiener, who introduced the original bill, has <a href="https://www.sfexaminer.com/news/technology/why-gavin-newsom-veto-just-beginning-of-ai-safety-fight/article_dd1dedb8-7f89-11ef-9510-6f396710820a.html" target="_blank">vowed to continue</a> the fight.AI technology is evolving far too quickly for reactive legislation. Will lawmakers emerge who understand the intricacies and implications of artificial intelligence, but also have the political clout to push proactive bills through legislatures? That’s a lot to ask of anyone. Time will tell.SB-976 Becomes Law in CaliforniaThere’s no shortage of news coming out of California. Governor Newsom has signed the <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240SB976" target="_blank">Protecting Our Kids From Social Media Addiction Act</a> (SB-976) into law, mandating that algorithm-based social media feeds will be inaccessible to children without parental consent. The law also stipulates that social media entities may not send notifications to children overnight or during school hours without express parental permission. The state attorney general is now tasked with outlining a process by 2027 to determine if users are children, which will certainly be controversial. This bill is very similar to <a href="https://www.nysenate.gov/legislation/bills/2023/S7694/amendment/A" target="_blank">legislation recently passed in New York</a> and may be a harbinger of things to come on the national stage. As we’ve <a href="https://www.sociallyawareblog.com/topics/state-social-media-laws-targeted-at-teens-face-opposition" target="_blank">previously reported</a>, parental consent rules run the risk of isolating vulnerable teens, while age-verification requirements may trigger privacy, bias, accuracy, and other concerns (including litigation). We’ll continue to pay close attention as this unfolds.California Deepfake Law BlockedShould political deepfakes be <a href="https://www.politico.com/news/2024/10/02/california-law-block-political-deepfakes-00182277" target="_blank">protected as satire</a>? In Kohls v. Bonta, Judge John A. Mendez of the U.S. District Court for the Eastern District of California ruled that it should. Despite being signed into law on September 17, 2024, <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB2839" target="_blank">AB-2839</a> was blocked in Judge Mendez’s court just two weeks later on grounds that the law does not meet the high standard for legislation that may burden protected speech. In rejecting the state’s argument that the law is akin to restrictions on defamation, Judge Mendez wrote: “YouTube videos, Facebook posts, and X tweets are the newspaper advertisements and political cartoons of today, and the First Amendment protects an individual’s right to speak regardless of the new medium these critiques may take.” Read <a href="https://storage.courtlistener.com/recap/gov.uscourts.caed.453046/gov.uscourts.caed.453046.14.0.pdf" target="_blank">Judge Mendez’s extensive ruling</a> in its entirety<a href="https://storage.courtlistener.com/recap/gov.uscourts.caed.453046/gov.uscourts.caed.453046.14.0.pdf">.</a>Privacy Rights Bill VetoedGovernor Gavin Newsom’s veto pen was working overtime as a number of tech-related bills recently landed on his desk. In addition to the aforementioned AI bill, Newsom vetoed <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB3048" target="_blank">AB-3048</a>. This law would have mandated that internet browsers and mobile operating systems provide Californians with a simple, single-click option to block the use and sharing of their data. Unsurprisingly, the bill was <a href="https://x.com/jason_kint/status/1834682846125944905" target="_blank">aggressively opposed</a> by major tech entities who argued that implementing such functionality presented too many technical hurdles and would be disruptive to operations for both the companies and the end users. Consumer and privacy rights activists <a href="https://advocacy.consumerreports.org/press_release/california-governor-vetoes-landmark-bill-for-privacy-rights/" target="_blank">strongly disagreed</a>. In his <a href="https://www.gov.ca.gov/wp-content/uploads/2024/09/AB-3048-Veto-Message.pdf" target="_blank">veto statement</a>, Governor Newsom wrote: “I am concerned… about placing a mandate on operating system (OS) developers at this time. No major mobile OS incorporates an option for an opt-out signal. By contrast, most internet browsers either include such an option or, if users choose, they can download a plug-in with the same functionality. To ensure the ongoing usability of mobile devices, it’s best if design questions are first addressed by developers, rather than by regulators.”Though AB-3048 <a href="https://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=202320240AB3048" target="_blank">overwhelmingly passed</a> in both chambers, the California Legislature has not overridden a gubernatorial veto <a href="https://prospect.org/politics/2023-10-16-missing-veto-override-california/" target="_blank">since 1980</a>. As tech is a major economic engine of the state, a veto seems extremely unlikely in this case – despite the Legislature having more than enough votes to do so.X Ordered to Honor Severance AgreementA former Twitter employee who was terminated and offered a reduced severance package after Elon Musk purchased the platform for $44 billion in 2022 <a href="https://www.business-standard.com/world-news/ex-twitter-worker-wins-fight-with-elon-musk-over-unpaid-severance-124092400092_1.html" target="_blank">has prevailed in arbitration</a>. The company, now rebranded as X, was ordered to pay the unnamed employee the full amount owed under the initial severance agreement. It’s possible that this settlement may result in additional severance adjustments for the more than 2,000 former Twitter employees who have filed arbitration grievances after allegedly being denied their contractually agreed severance. Legendary Los Angeles <a href="https://www.youtube.com/watch?v=-ey5agy1blc&list=OLAK5uy_kBru2bFCew4EFmAoCTtT_XrydeTIPT4G0" target="_blank">punk band X</a> was unavailable for comment.

Social Links: Going Back to Cali

California Governor Gavin Newsom has vetoed SB-1047. The controversial bill was intended to establish safety guidelines for artificial intelligence models and would have been the first significant piece of state AI legislation in the country. 

Sick of the “<a href="https://www.tiktok.com/@joolieannie/video/7399736793119247662" target="_blank">very demure, very mindful</a>” social media trend yet? The U.S. Patent and Trademark Office probably is too. Our national nightmare began on August 5 when TikToker Jools LeBron uploaded a video of herself pontificating about the way she dresses and behaves for a job interview, claiming that she was “very modest” while broadcasting self-absorption to millions of online followers (the very definition of modesty). The trend was picked up by a number of other entities—including the <a href="https://www.instagram.com/p/C-vr65nSM-N/?utm_source=ig_web_button_share_sheet" target="_blank">White House</a> and <a href="https://www.facebook.com/share/p/tjeKx23Zj1B9rjBj/">Dunkin’ Donuts</a>—and now LeBron is attempting to <a href="https://www.axios.com/2024/09/09/trademark-disputes-demure-viral-phrase" target="_blank">trademark the phrase</a>. Unfortunately for her, quick-acting IP vultures beat her to it. At least three other applicants with absolutely no connection to the viral trend had the same idea and <a href="https://tsdr.uspto.gov/#caseNumber=98706752&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank">filed to register a trademark</a> before her. Will Jools LeBron become an enduring symbol of cultural excellence like the <a href="https://youtu.be/C7tydu_erZo?si=m3RxTvVJo0AW4Qm0&t=5" target="_blank">Hawk Tuah girl</a>, or will she become irrelevant like art and literature?Utah’s proposed law regulating the use of social media by minors, which we <a href="https://www.sociallyawareblog.com/topics/social-links-july-2024" target="_blank">reported on in July</a>, has been <a href="https://www.reuters.com/world/us/utah-law-restricting-youth-social-media-use-blocked-by-judge-2024-09-11/#:~:text=Sept%2011%20(Reuters)%20%2D%20A,impose%20restrictions%20on%20minors'%20accounts." target="_blank">temporarily blocked</a> by U.S. District Court Judge Robert J. Shelby. In <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/gkvllnwexvb/09102024utah.pdf" target="_blank">the ruling</a>, Judge Shelby wrote that the law likely constitutes an unconstitutional limitation on protected speech and plaintiff NetChoice is “substantially likely to succeed on its claim the Act violates the First Amendment.” NetChoice has successfully blocked similar legislation in several states and recently prevailed in the Supreme Court in <a href="https://www.theverge.com/2024/7/1/24166388/supreme-court-ruling-moody-paxton-texas-florida-social-media-law" target="_blank">two content moderation cases</a>. Judge Shelby summed up the ruling in no uncertain terms, writing that “The court recognizes the State’s earnest desire to protect young people from the novel challenges associated with social media use, but owing to the First Amendment’s paramount place in our democratic system, even well-intentioned legislation that regulates speech based on content must satisfy a tremendously high level of constitutional scrutiny.”<a href="https://www.msn.com/en-ca/music/news/feds-indict-musician-on-landmark-massive-streaming-fraud-charges/ar-AA1q0wI9" target="_blank">By robots, for robots</a>. That’s the new dystopia we apparently find ourselves in. North Carolina-based musician Michael Smith <a href="https://www.justice.gov/usao-sdny/media/1366241/dl" target="_blank">has been indicted</a> in federal court on three counts of wire fraud, wire fraud conspiracy, and money laundering conspiracy. Smith used AI to create hundreds of thousands of songs which he uploaded to multiple music streaming services. He then created thousands of bot accounts to “listen” to his music nonstop, generating more than $10 million in royalty payments. AI-generated music is uncharted territory for artists, labels, publishers, and IP attorneys, as society wrestles with the incredibly fast-moving technology. A number of major record labels are trying to put the <a href="https://www.billboard.com/pro/major-label-lawsuit-ai-firms-suno-udio-copyright-infringement/?utm_source=twitter&utm_medium=social" target="_blank">genie back in the bottle</a>, but a long road of litigation is a near certainty. Perhaps it will be settled by robot lawyers arguing in front of a robot judge on behalf of the <a href="https://www.youtube.com/watch?v=okhQtoQFG5s" target="_blank">robot artists</a> and robot listeners they represent.After an investigation by the EU, X has <a href="https://www.dataprotection.ie/en/news-media/press-releases/data-protection-commission-welcomes-conclusion-proceedings-relating-xs-ai-tool-grok" target="_blank">agreed to comply</a> with the European Data Protection Commission’s guidelines and to stop using personal data to train its AI chatbot, Grok. X has agreed to delete data collected from May 7 to August 1 and cease collecting user data for developing Grok. Despite X’s compliance, the social media giant <a href="https://techcrunch.com/2024/09/06/elon-musks-x-could-still-face-sanctions-for-training-grok-on-europeans-data/" target="_blank">may still face sanctions</a> over AI models trained on the previously collected data. In the U.S., where laws governing data usage are less stringent, <a href="https://www.msn.com/en-us/money/other/how-to-stop-x-from-using-your-posts-to-train-its-ai/ar-BB1qHPJX?apiversion=v2&noservercache=1&domshim=1&renderwebcomponents=1&wcseo=1&batchservertelemetry=1&noservertelemetry=1" target="_blank">users may now opt out</a> of allowing the platform to access their data for AI training, but the process is not intuitive and users are opted in by default.In a <a href="https://ag.ny.gov/sites/default/files/letters/social-warning-label-letter.pdf" target="_blank">letter to Congress</a>, 42 state attorneys general have encouraged lawmakers to pass legislation requiring cigarette-style warning labels on social media platforms. The action was <a href="https://www.theverge.com/2024/6/17/24180005/surgeon-general-warning-labels-social-media-mental-health" target="_blank">spearheaded last June</a> by U.S. Surgeon General Dr. Vivek Murthy after a <a href="https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2749480" target="_blank">2019 AMA study</a> published in the Journal of American Medicine. The impact of so many attorneys general advocating for legislation remains to be seen, but it could very well move the needle in Congress. As the AGs wrote, “A surgeon general’s warning on social media platforms, though not sufficient to address the full scope of the problem, would be one consequential step toward mitigating the risk of harm to youth.” With so many <a href="https://www.ncsl.org/technology-and-communication/social-media-and-children-2024-legislation" target="_blank">states considering legislation</a> to curtail social media use among children, overarching federal guidelines may be inevitable. The issue appears to be bipartisan and has gained real momentum over the last few months.

Social Links: TikTok Trademarks, Social Signposts, and Robot Rock

Social media giant TikTok has been <a href="https://www.theguardian.com/technology/article/2024/aug/02/us-sues-tiktok-bytedance-child-privacy" target="_blank">sued by the United States</a> for allegedly collecting data on children under thirteen illegally. The suit claims the app, which is owned by China-based parent company ByteDance, allowed millions of children to create accounts without parental knowledge or consent despite <a href="https://www.wired.com/story/tiktok-ftc-record-fine-childrens-privacy/" target="_blank">paying a fine of $5.7 million</a> for similar activity in 2019. The United States is seeking penalties of up to $51,744 per violation, per day. The suit comes just three months after TikTok sued the U.S. government over a law that could ban it across the country. Read the <a href="https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rS0wyWEeUli0/v0" target="_blank">complaint</a> in its entirety.The U.S. Court of Appeals for the D.C. Circuit <a href="https://publishers.org/news/dc-circuit-court-rejects-effs-challenge-to-dmca-confirms-symbiotic-relationship-of-copyright-law-and-free-expression/" target="_blank">has rejected</a> a challenge to one aspect of the Digital Millennium Copyright Act (<a href="https://www.copyright.gov/dmca/" target="_blank">DMCA</a>). The action was initially brought by Electronic Frontiers Foundation (EFF) in 2016 and argued that Section 1201 of the DMCA – which prohibits the circumvention of technological measures that protect copyrighted works – is unconstitutional under the First Amendment. The <a href="https://publishers.org/wp-content/uploads/2024/08/Green-v-DOJ-opinion-2024.08.02.pdf" target="_blank">ruling</a> filed by Judge Nina Pillard states that while the First Amendment protects the right to read, it does not guarantee unrestricted access to all reading materials one might desire and does not guarantee potential fair users exceptional access to copyrighted works they wish to include in their expression. EFF maintains that the decision favors large commercial entities over individual fair users and sets a dangerous precedent for the future.Pickpocketing via tweet? Investor and online financial personality Andrew Left <a href="https://finance.yahoo.com/news/short-seller-andrew-left-deleted-110000470.html" target="_blank">deleted his research firm’s entire tweet history</a> from social media platform X ahead of his 19-count <a href="https://prod-i.a.dj.com/public/resources/documents/andrew-left-indictment07-26-2024.pdf" target="_blank">securities fraud indictment</a> and <a href="https://storage.courtlistener.com/recap/gov.uscourts.cacd.934731/gov.uscourts.cacd.934731.1.0.pdf">SEC lawsuit.</a> According to the SEC complaint, Left allegedly engaged in bait-and-switch schemes that involved making public recommendations contrary to his private trading positions which netted him $20 million in illicit gains between 2018 and 2023. The SEC also accused Left of sharing his planned announcements with at least two hedge funds in advance, receiving a portion of their trading profits in return. Left used X as a platform to promote short positions on a number of major companies including Roku, American Airlines, and Beyond Meat. The government maintains that Left’s public tweets were intended to illegally manipulate the market.<a href="https://www.theguardian.com/technology/article/2024/aug/06/elon-musk-x-advertising-lawsuit-antitrust" target="_blank">X has filed suit</a> against several major companies and a global advertising alliance. The suit accuses them of conspiring to boycott the social media platform and withhold advertising dollars in an attempt to damage the platform. Advertising revenue on X has declined since Elon Musk acquired the company in 2022, with many brands expressing concerns over the platform’s lack of content moderation. X chief executive Linda Yaccarino <a href="https://x.com/lindayaX/status/1820838134470328676" target="_blank">characterized the alleged boycott</a> in terms more sociological than financial, writing: “The consequence – perhaps the intent – of this boycott was to seek to deprive X’s users, be they sports fans, gamers, journalists, activists, parents or political and corporate leaders, of the Global Town Square.”Legislation targeting malicious use of deepfake technology <a href="https://www.govtech.com/policy/lawmakers-introduce-bipartisan-bill-to-fight-ai-deepfakes" target="_blank">continues to expand</a> and seems to be among the very few issues that can reliably garner bipartisan support. Representatives Ashley Hinson (R-IA) and Jake Auchincloss (D-MA) have <a href="https://auchincloss.house.gov/media/press-releases/release-auchincloss-introduces-bipartisan-bill-to-tackle-rise-in-non-consensualdeepfakes-on-social-media-platforms" target="_blank">introduced a bill</a> that would eliminate Section 230 protections for tech companies that allow deepfake pornography on their platforms. The bill would require tech firms to implement a “clear and accessible process for reporting, investigating and removing harmful content within 24 hours.” Additionally, it would require data logging that victims could access and a process for removing the offending content. This House bill is on the heels of related deepfake legislation that recently <a href="https://gizmodo.com/anti-deepfake-porn-bill-unanimously-passes-in-the-senate-2000479051" target="_blank">passed the Senate unanimously</a>.

Social Links: August 2024

Social Links: August 2024

Social media giant TikTok has been sued by the United States for allegedly collecting data on children under thirteen illegally. 

In a rare example of bipartisan agreement, the dramatically named DEFIANCE (Disrupt Explicit Forged Images and Non-Consensual Edits) Act unanimously <a href="https://gizmodo.com/anti-deepfake-porn-bill-unanimously-passes-in-the-senate-2000479051" target="_blank">passed the Senate</a>. The bill allows victims of AI-generated deepfake pornography to sue anyone who knowingly creates, receives, or distributes such images. It only addresses civil liability and only applies to pornographic content, but we would not be surprised to see more expansive legislation in this area in the future.Utah’s stringent social media laws survived a court challenge when a federal judge <a href="https://www.ksl.com/article/51076729/federal-judge-dismisses-claim-in-lawsuit-against-utahs-social-media-laws" target="_blank">dismissed a claim</a> by NetChoice that the legislation was preempted by federal law under Section 230. The dismissal by U.S. District Judge Robert J. Shelby cited autoplay, seamless pagination, and notifications on minors’ accounts as outside the scope of Section 230. Utah has become a <a href="https://www.ksl.com/article/50846522/utah-residents-suing-state-over-soon-to-be-enacted-social-media-restrictions" target="_blank">flashpoint</a> in the debate over social media, its impact on children, and related First Amendment concerns.Meta has <a href="https://about.fb.com/news/2024/07/combating-financial-sextortion-scams-from-nigeria/" target="_blank">removed more than 60,000 accounts</a> involved in sexual extortion scams aimed predominantly at men in the United States. The accounts were based in the fraud hotbed of Nigeria and used sexually compromising photos—both real and fake—to blackmail victims. The vast majority of the now-deleted accounts were on Instagram, but Meta also deactivated more than 7,000 Facebook accounts, pages, and groups that offered advice (including scripts) on how to defraud people. Although mostly targeting adults, there were also attempts against minors, which Meta reported to the U.S. National Center for Missing and Exploited Children.In another uncharacteristically bipartisan vote, the <a href="https://www.nbcnews.com/politics/congress/senate-poised-pass-significant-child-online-safety-bills-decades-rcna164259" target="_blank">Senate voted 91-3 in favor</a> of the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) and the Kids Online Safety Act (KOSA). This is significant legislation that would create a legal “duty of care” for social media companies to prevent and mitigate harm. Violators would be subject to penalties enforced by the Federal Trade Commission. Opponents argue that the bill’s definition of harm is too broad and could lead to censorship of content that promotes politically polarizing issues, gender equality, or abortion rights. The bill will now go to the House, where its passage is less certain. Should it pass, this legislation would dramatically impact the operations of social media companies. We’re watching this very closely.Red-hot AI startup Perplexity has <a href="https://www.msn.com/en-us/news/technology/nvidia-backed-perplexity-ai-inks-deal-with-publishers-to-put-ads-in-search-engine/ar-BB1qTjUy?ocid=BingNewsVerp" target="_blank">entered into agreements</a> with several major media companies including Time, Fortune, and Automattic (owner of WordPress). Perplexity will begin featuring its partners’ content in AI-assisted search results and providing a percentage of the ad revenue. This move is on the heels of plagiarism accusations by news organizations such as Forbes and Condé Nast, the latter of which <a href="https://www.engadget.com/conde-nast-has-reportedly-accused-ai-search-startup-perplexity-of-plagiarism-191639677.html" target="_blank">reportedly sent a cease and desist</a> letter to the startup.The US Copyright Office <a href="https://cointelegraph.com/news/us-copyright-office-reports-urgent-need-protection-ai-law-deepfakes" target="_blank">issued a report</a> calling on Congress to take urgent action on the distribution of unauthorized deepfakes. The report is a result of its 2023 initiative to examine the intellectual property implications of generative AI. The speed of technology has always challenged lawmakers to keep up with bad actors, but AI deepfake capability has moved at staggering speed. <a href="https://www.fastcompany.com/91165063/microsoft-white-paper-new-laws-ai-deepfakes-frauid" target="_blank">Microsoft</a> has also called for Federal legislation addressing deepfakes.

Social Links: July 2024

In its recent opinion in <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf" target="_blank">Lindke v. Freed</a>, the U.S. Supreme Court addressed when public officials may be held liable for violating the First Amendment for silencing critics on social media. The Court held that a public official violates the First Amendment for blocking a citizen from commenting when the official possessed actual authority to speak on the State’s behalf on a particular matter and purported to exercise that authority when speaking in the relevant social-media posts.The Sixth Circuit previously held in Lindke that James Freed, a city manager in Port Huron, Michigan, was not acting as a government official when he blocked a city resident, and therefore was not liable for any violation. By contrast, the Ninth Circuit held in O’Connor-Ratcliff v. Garnier that two school board members violated the First Amendment by blocking parents from their social media accounts.In a unanimous opinion authored by Justice Amy Coney Barrett, the Supreme Court resolved this circuit split, recognizing that the mere fact that a social-media page belongs to a public official is not by itself sufficient to impose liability. The Court recognized that people do not relinquish their own First Amendment rights simply by becoming public officials. Rather, the Court held, “[t]he distinction between private conduct and state action turns on substance, not labels[.]” In what the Court described as a “fact-specific undertaking,” the new test requires courts to consider the content and function of a social-media post.The first prong of the Court’s new test asks whether the public official possessed “actual authority” rooted in law or longstanding custom to speak for the State on the particular topic. In tracing whether a public official’s social media post is connected to the State’s power or authority, courts are charged with determining whether there is a link between the public official’s “actual authority” and the complained-of conduct. As an example, the Court noted that if public health is not “within the portfolio” of a city manager and Freed posted to his social media about issues of public health, then “neither the post nor [any] deletions would be traceable to Freed’s state authority—because he had none.” In assessing what falls “within the portfolio” of a public official, the Court cautioned against relying on “excessively broad job descriptions,” emphasizing that the question is not whether something could fit within the job description, but rather whether it “is actually part of the job that the State entrusted the official to do.”The test’s second prong considers the context in which a public official’s post was made to determine whether the post was being made in a “public” or “personal” capacity. A post’s express invocation of state authority, for instance, would clearly fall along the “public” side of the spectrum, but a post that “merely repeats or shares otherwise available information” would more than likely be treated as “personal.” Because these considerations are post-specific, the Court noted that while deleting comments may allow an official to only target personal posts, blocking a user from accessing the page entirely could also prevent them from commenting on official posts, thereby exposing the public official to potential liability. The Court also emphasized that the use of disclaimers on the social-media account itself could create a “heavy (though not irrebuttable) presumption” that all posts made by the account are “personal.”The Court vacated and remanded both Lindke and <a href="https://www.supremecourt.gov/opinions/23pdf/22-324_09m1.pdf" target="_blank">O’Connor-Ratcliff v. Garnier</a>, ordering the circuit courts to reconsider the facts of the respective cases in line with the Court’s new test.Social media is undoubtedly critical for the modern public official to communicate with their constituents, establish their brand, and generate public support for reelection. The Court’s ruling provides important guidance for public officials to continue to use social media without falling into the crosshairs of a Section 1983 claim. Fully expect public officials to avail themselves of the Court’s suggested disclaimers to make it plain that their posts are not official statements.

Supreme Court Clarifies the Boundaries of Public Official Liability on Social Media