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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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

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

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

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

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BitTorrent, the peer-to-peer (P2P) file-sharing system that enables the quick downloading of large files, has sparked another novel controversy stemming from copyright-infringement claims brought against its users. Users take advantage of the BitTorrent sharing system to anonymously access popular media such as books and movies. That anonymity is unlikely to last long for users who are alleged to have downloaded copyrighted material. Last month, Judge Sweet, a federal judge in the Southern District of New York (SDNY), held that an anonymous P2P user has no First Amendment right to quash a subpoena seeking her identity where the plaintiff had no other means to effectively identify the defendant.In John Wiley & Sons Inc. v. Does Nos. 1-35, the plaintiff (Wiley), a publisher of books and journal articles, alleged that unidentified “John Does” used BitTorrent to illegally copy and distribute Wiley’s copyrighted works and infringe on Wiley’s trademarks. Wiley sued 35 defendants known only by their “John Doe Numbers” and Internet Protocol (IP) addresses. Seeking to identify the Does, Wiley moved for court-issued subpoenas to be served on various Internet service providers (ISPs), ordering them to supply identifying information corresponding to the Does’ IP addresses. In an attempt to maintain her anonymity and avoid liability, one of the 35 Does, then known only as John Doe No. 25 (“Doe 25”) or IP Address 74.68.143.193, moved to quash a subpoena served on her ISP, Time Warner Cable.Wiley reflects a new wave of litigation in which copyright holders have shifted from suing host sites to focusing on individual users of P2P networks. The mere fact that copyrighted material is downloaded from a particular IP address may be insufficient to prove that the P2P network user is the infringer. An IP address typically provides only the location at which one of any number of devices may be used by any number of individuals (in fact, Doe No. 25 contended that her ex-husband, not she, downloaded the infringing works). If a motion to quash is granted, the account holder’s identity is not revealed, and the claim is effectively dead.In considering whether to grant an anonymous account holder’s motion to quash a subpoena, courts balance the user’s First Amendment right to act anonymously with the plaintiff’s right to pursue its claims.Anonymous users can rely on a line of <a href="http://scholar.google.com/scholar_case?case=14955773971395308767&q=326+F.Supp.2d+556&hl=en&as_sdt=2002">precedent</a> that extends the First Amendment’s protections to online expression. And under <a href="http://www.law.cornell.edu/rules/frcp/rule_45">Rule 45</a> of the Federal Rules of Civil Procedure, a court must quash a subpoena if it requires disclosure of protected matter. Thus, to the extent that anonymity is protected by the First Amendment, courts will quash subpoenas designed to breach anonymity.On the other hand, plaintiffs pursuing their claims can point to precedent holding that the First Amendment may not be used to encroach upon the intellectual property rights of others.To balance these competing principles and determine whether certain actions trigger First Amendment protection, courts weigh the five factors set out in <a href="http://scholar.google.com/scholar_case?case=14955773971395308767&q=326+F.Supp.2d+556&hl=en&as_sdt=2002">Sony Music Entertainment Inc. v. Does 1-40</a>:<ul><li>whether the plaintiff has made a concrete showing of actionable harm;</li><li>the specificity of the discovery request;</li><li>the absence of alternative means by which to obtain the subpoenaed information;</li><li>a central need for the data; and</li><li>the party’s expectation of privacy.</li></ul>In Wiley, each of these five factors weighed in favor of disclosure of the defendant’s identity. Wiley pled a sufficiently specific claim of copyright infringement, and, without a subpoena, Wiley would have no other effective way to identify potential infringers of Wiley’s intellectual property rights.At least five other courts within the SDNY have denied motions to quash in similar litigations involving defendants accused of infringing Wiley’s copyrights via BitTorrent. Going forward, so long as copyright holders can satisfy the Sony five-factor test, they will be able to rely on cases like Wiley to ferret out copyright infringers.

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

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

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

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

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

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

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

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

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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

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Be Wary of Sharing: Anonymous P2P User’s Motion to Quash Subpoena Denied

Be Wary of Sharing: Anonymous P2P User’s Motion to Quash Subpoena Denied

BitTorrent, the peer-to-peer (P2P) file-sharing system that enables the quick downloading of large files, has sparked another novel controversy stemming from co

In a string of cases against Google, approximately 20 separate plaintiffs have claimed that, through advertisements on its AdWords service, Google engaged in trademark infringement. These claims have been based on Google allowing its advertisers to use their competitors’ trademarks in Google-generated online advertisements. In a recent decision emerging from these cases, CYBERsitter v. Google, the U.S. District Court for the Central District of California found that Section 230 of the Communications Decency Act (CDA) provides protection for Google against some of the plaintiff’s state law claims.As we have discussed previously (see here and here), Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The Section 230 safe harbor immunizes websites from liability for content created by users, as long as the website did not “materially contribute” to the development or creation of the content. An important limitation on this safe harbor, however, is that it shall not “be construed to limit or expand any law pertaining to intellectual property.”In the CYBERsitter case, plaintiff CYBERsitter, which sells an Internet content-filtering program, sued Google for selling and displaying advertisements incorporating the CYBERsitter trademark to ContentWatch, one of CYBERsitter’s competitors. CYBERsitter’s complaint alleged that Google had violated numerous federal and California laws by, first, selling the right to use CYBERsitter’s trademark to ContentWatch and, second, permitting and encouraging ContentWatch to use the CYBERsitter mark in Google’s AdWords advertising. Specifically, CYBERsitter’s complaint included the following claims: Trademark infringement, contributory trademark infringement, false advertising, unfair competition and unjust enrichment.Google filed a motion to dismiss, arguing that Section 230 of the CDA shielded it from liability for CYBERsitter’s state law claims. The court agreed with Google for the state law claims of trademark infringement, contributory trademark infringement, unfair competition and unjust enrichment, but only to the extent that these claims sought to hold Google liable for the infringing content of the advertisements. The court, however, did not discuss the apparent inapplicability of the Section 230 safe harbor to trademark claims. As noted above, Section 230 does not apply to intellectual property claims and, despite the fact that trademarks are a form of intellectual property, the court applied Section 230 without further note. This is because the Ninth Circuit has held that the term “intellectual property” in Section 230 of the CDA refers to federal intellectual property law and therefore state intellectual property law claims are not excluded from the safe harbor. The Ninth Circuit, however, appears to be an outlier with this interpretation; decisions from other circuit courts suggest disagreement with the Ninth Circuit’s approach, and district courts outside the Ninth Circuit have not followed the Ninth Circuit’s lead.Google was not let off the hook entirely with regard to the plaintiff’s state trademark law claims. In dismissing the trademark infringement and contributory trademark infringement claims, the court distinguished between Google’s liability for the content of the advertisements and its liability for its potentially tortious conduct unrelated to the content of the advertisements. The court refused to dismiss these claims to the extent they sought to hold Google liable for selling to third parties the right to use CYBERsitter’s trademark, and for encouraging and facilitating third parties to use CYBERsitter’s trademark, without CYBERsitter’s authorization. Because such action by Google has nothing to do with the online content of the advertisements, the court held that Section 230 is inapplicable.The court also found that CYBERsitter’s false advertising claim was not barred by Section 230 because Google may have “materially contributed” to the content of the advertisements and, therefore, under Section 230 would have been an “information content provider” and not immune from liability. Prof. Eric Goldman, who blogs frequently on CDA-related matters, has pointed out an apparent inconsistency in the CYBERsitter court’s reasoning, noting that Google did not materially contribute to the content of the advertisements for the purposes of the trademark infringement, contributory infringement, unfair competition and unjust enrichment claims, but that Google might have done so for the purposes of the false advertising claim.CYBERsitter highlights at least two key points for website operators, bloggers, and other providers of interactive computer services. First, at least in the Ninth Circuit, but not necessarily in other circuits, the Section 230 safe harbor provides protection from state intellectual property law claims with regard to user-generated content. Second, to be protected under the Section 230 safe harbor, the service provider must not have created the content and it must not have materially contributed to such content’s creation.

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Google AdWords Decision Highlights Contours of the CDA Section 230 Safe Harbor

Google AdWords Decision Highlights Contours of the CDA Section 230 Safe Harbor

In a string of cases against Google, approximately 20 separate plaintiffs have claimed that, through advertisements on its AdWords service, Google engaged in tr

Popular online marketplace <a href="http://www.cafepress.com/">CafePress.com</a> suffered a legal setback recently when a U.S. District Court in the Southern District of New York denied CafePress’s motion for summary judgment against <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1141&context=historical">claims of trademark infringement</a>. CafePress operates an online “print on demand” service that allows users to upload designs which CafePress then prints on a variety of items. The users receive a share of the money that CafePress makes when it sells items displaying the users’ designs. These items include everything from coffee mugs and <a href="http://www.cafepress.com/+steins">beer steins</a> to iPhone cases and <a href="http://www.cafepress.com/+flip-flops">flip-flops</a>. In 2009, guitar neck manufacturer Born to Rock Design Incorporated (BTR), which owns a federal registration for the trademark “Born to Rock,” sent a letter to CafePress asking the site to stop selling merchandise displaying the mark. Since 2003, CafePress had produced a number of different items displaying the “Born to Rock” phrase, all based on designs provided by users. These designs included the following:After CafePress refused to remove user designs incorporating the phrase, BTR filed a complaint for, among other things, trademark infringement. Following discovery, CafePress filed a motion for summary judgment, arguing that the “Born to Rock” designs were not used in commerce (an element of trademark infringement) and that, even if they were, CafePress’s use was “fair use”—i.e., a descriptive or ornamental use of the phrase “Born to Rock” in a non-trademark sense.  The court struck down the first argument outright, stating that CafePress was being “facetious” in arguing that it did not use the mark in commerce given that CafePress actually imprints the designs on merchandise and ships that merchandise to customers. In considering the fair use argument, the court acknowledged that certain uses of the “Born to Rock” designs may constitute non-trademark fair use (e.g. “Born to Ride / Born to Rock”), but concluded that CafePress could not rely on fair use as a blanket defense for all of the designs.Legal scholar Eric Goldman has pointed out that CafePress can raise other, stronger arguments in the future, including that the trademark is invalid and that consumers were not likely to be confused by CafePress’s <a href="http://blog.ericgoldman.org/archives/2012/09/cafepress_could.htm">use of the mark</a>. Nonetheless, the district court’s denial of summary judgment does send a message to trademark holders: you can sue online service providers for trademark infringement based on user-generated content and you just might win.  The Digital Millennium Copyright Act (DMCA) creates a safe harbor for online service providers who promptly remove user-generated copyright-infringing content after receiving takedown notices, but there is no equivalent safe harbor for content that infringes trademarks (although chillingeffects.org, a website devoted to the DMCA, does note that “in the absence of any caselaw on the subject, should a trademark holder bring a claim for contributory infringement, an [online service provider] might be able to mount a valid defense by analogy to [DMCA] section 512(c).”).Social media sites in particular may be easy targets for trademark claims based on user-generated content. Such sites often host “community pages” that serve as fan pages for brands without any authorization from the companies involved (for example, compare this <a href="https://www.facebook.com/CinnamonToastCrunch">official Facebook page</a> established by a trademark holder with this <a href="http://www.facebook.com/pages/Cinnamon-Toast-Crunch/62890498529">community page run by a fan</a>). In the wake of the case against CafePress, social media sites and other websites that host user-generated content should be aware of these trademark-related risks and the fact that the DMCA safe harbors do not apply to trademark claims.

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Jessica Kaufman

Born to Mock: Trademark Holder’s Fight to Remove Mark on Kitsch Merchandise May Have Broad Legal Implications