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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The Directive on Copyright in the Digital Single Market (Directive) was finally approved by all EU legislative bodies on April 15, 2019. Introducing “modernizin

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The EU Copyright Directive Passes – But Member States Remain Split on Upload Filters

The EU Copyright Directive Passes – But Member States Remain Split on Upload Filters | Socially Aware

Christiane Stuetzle

Patricia C. Ernst

The Directive on Copyright in the Digital Single Market (Directive) was finally approved by all EU legislative bodies on April 15, 2019. Introducing “modernizing EU copyright rules for European culture to flourish and circulate” was a key initiative of the European Commission’s Digital Single Market (DSM), which, according to the Commission’s President Jean-Claude Juncker, has now been completed by the Directive as “the missing piece of the puzzle.” The Directive was approved, just in time for the elections to the EU Parliament taking place in May 2019. Within a period of 24 months, the Member States are required to implement the Directive’s provisions into national law.Various Member States have issued, along with their approval of the Directive, <a href="https://data.consilium.europa.eu/doc/document/ST-7986-2019-ADD-1-REV-2/en/pdf">statements regarding their interpretation of the Directive</a> and voicing quite different views about the upcoming implementation process. While Germany strongly opposes the notion of upload filters, it appears that France is in favor of a copyright protection mechanism that includes upload filters. At the same time, it remains a pressing question whether currently available algorithm-based filters would even be able to sufficiently differentiate between infringing and non-infringing content.These dissonant views, as well as the sometimes vague wording of the Directive, have raised concerns that Member States will implement the Directive in different ways, leading to a lack of harmonization across the EU. The Directive, however, expressly requests a harmonized implementation as well as stakeholder dialogues, led by the EU Commission and the Member States.The Dissonant Vote<ul class="ul1"><li class="li1">European Parliament, March 26: The vote saw the Directive adopted without amendments, with 348 votes in favor and 274 votes against. The upstream vote on whether to consider amendments to the press publishers’ right and the platform liability regulation, however, was rejected by only five votes (13 parliamentarians reportedly pressed the wrong button, meaning the motion would otherwise have passed).</li><li class="li1">Council of the European Union, April 15: On April 15, the Directive cleared its final hurdle by passing the last Council vote. Six Member States rejected the Directive (Italy, Sweden, Finland, Poland, The Netherlands, and Luxembourg), and Belgium, Estonia, and Slovenia abstained. However, the proposal was backed by 19 countries, representing 71.26% of the voting power.</li></ul>What the Directive Will ChangeThe <a href="http://www.europarl.europa.eu/doceo/document/TA-8-2019-0231_EN.html">final, adopted version of the Directive</a>  coincides with the trilogue compromise (see a detailed assessment of the main provisions in our Client Alert “The EU Copyright Directive hits the Homestretch”) and provides the following main changes. Due to mere editorial changes, its articles have been renumbered:<ul class="ul1"><li class="li1">Online content-sharing service providers’ liability for copyright-infringing content, Article 17 (ex–Art. 13) Online content-sharing services are subject to a direct liability for copyright-infringing content uploaded by their users if they fail to prove that they made “best efforts” to obtain the right holder’s authorization or fail to evidence that they made “best efforts” to ensure the unavailability of such content. They are also liable if they fail to act expeditiously to take down uploads of work for which they have received a takedown notice.</li><li class="li1">Ancillary copyright for press publishers, Article 15 (ex–Art. 11) Press publishers are granted an ancillary copyright for press publications, covering the reproduction and making available of such content by information society service providers (excluding only hyperlinks accompanied by “individual words or very short extracts”).</li><li class="li1">Further provisions The Directive also introduces exceptions and limitations (e.g., for text and data mining (incl. in favor of commercial enterprises)); provisions regarding collective licensing; and recall, transparency, and fair remuneration rights for authors.</li></ul>Harmonized Implementation?The Directive is expressly designed to provide a harmonized legal framework in order to prevent the fragmentation of the European market. Article 17(10) of the Directive anticipates that the Commission will conduct stakeholder dialogues with all interest groups, especially online service providers and rights holders, on best practices regarding the obligations under Article 17. Drawing on these dialogues, the EU Commission is required to issue guidelines on the application of “best efforts” requirements, as well as the cooperation with rights holders (i.e., the rights holders’ notification of protected works to online service providers and the negotiation of license agreements).<ul class="ul1"><li class="li1">Germany has already declared that it will take an active role in these stakeholder dialogues, and that it presumes the promotion of a harmonized implementation of Article 17 to be one of the main goals of these dialogues. The statement issued by Germany voices strong opposition to the notion of upload filters as a mechanism for ensuring the permanent staydown of infringing content. If such “technical solutions” are still used in order to comply with Article 17, the German statement requests taking into account the data protection requirements of the General Data Protection Regulation (GDPR), as well as the overall principle of proportionality. The statement also proposes the development of open-source technologies with open interfaces (APIs) to provide for standardization and to prevent the market domination of a few established filtering technologies.Furthermore, <a href="https://data.consilium.europa.eu/doc/document/ST-7986-2019-ADD-1-REV-2/en/pdf">Germany has raised the issue</a> that the definition of the term “online content sharing service provider” urgently requires further clarification, and that it intends to expressly exclude certain types of platforms and service providers.</li><li class="li1">France is expected to follow a stricter approach. In a speech given just one day after the final vote in the European Parliament, the Minister for Culture announced that the French High Authority for the Dissemination of Works and the Protection of Rights on the Internet, jointly with the Higher Council for Literary and Artistic Property and the National Center for Cinema and the Moving Image, will launch a project promoting “content recognition technologies.” The Minister underlined that said project is essential to enabling Article 17, and that there is “no time to waste on this topic.”</li><li class="li1">The Netherlands, Luxembourg, Poland, Italy, and Finland, all of which rejected the Directive in the final Council vote, declared the Directive to be a step backwards for the DSM, failing to strike a fair balance between the protection of rights holders and the interests of citizens and companies, or to provide legal certainty.</li><li class="li1">The stance of the UK is less clear, which may be due to the expected Brexit – as a result of which the UK would no longer be obliged to transpose the Directive into national law. Leading Conservative politician and former Foreign Minister Boris Johnson insisted that the UK not apply Article 17, arguing it would be “terrible for the internet.”</li></ul>Outlook – Stakeholder Dialogues & Implementation ProcessThe stakeholder dialogues of the implementation process will represent an important period for stakeholders wanting to raise their voices as to (i) ensuring that the concrete implementation of the so-far vague wording of Article 17 of the Directive will reflect an appropriate solution and (ii) for those platforms with uncertain qualification as an online content-sharing service provider as to ensuring that they will be included in the list of platforms to which Article 17 does not apply.