1. How to Legally Survive and Prosper in Social Media By Andrew Berger, Esq. For the Copyright Society’s Social Networking Program November 8, 2010

2. The Internet Never Forgets Social media is a friend: Social media is a friend: It allows you to reach a global audience with the click of a mouse It allows you to reach a global audience with the click of a mouse You can easily monitor the marketplace/your competitors You can easily monitor the marketplace/your competitors You can use it for unexpected other purposes You can use it for unexpected other purposes But social media may also be your enemy But social media may also be your enemy

3. What You Post May Hurt You Social media posts may be used against you by: Social media posts may be used against you by: adversaries in litigation adversaries in litigation debt collectors debt collectors search engines and your own social media sites search engines and your own social media sites the FBI the FBI potential employers potential employers

4. Other Risks Arising From the Use of Social Media Your posts may also expose you to traditional forms of liability: libel, breach of contract, fraud, etc.

5. The Take Away From All This Whatever you say can’t be reeled back in The internet is not anonymous So be careful…..

6. Responding to a Cyber Attack Is the attack directed at your product or your mark If your product, the attack may be difficult to ignore Turn the attack into a positive “The customer has a point” or “we are changing our polices”

7. The Traditional Response to Attacks Directed At Your Brand or Mark Cease and desist letter followed by a law suit

8. The Traditional Approach Is Still Followed By Some Brands on the Internet Facebook v. Teachbook eBay v. Perfumebay Groupon v. Groupocity

9. But That Approach Has Special Risks In the Social Media Context Recipient of a cease/desist letter may post it Along with an angry response

10. Some Creative Responses Focus on site’s terms of service: are you dealing with an intent to mislead, a news feed, a fan site or a commentary Obtain vanity URL sites before others grab them If you’re releasing a new product create two Twitter accounts: in the name of the company and product

11. Other Non-Traditional Approaches Agree to the infringer’s continued use of mark on the site under controlled circumstances Require the infringing site to post a disclaimer Partner with fan site; Coke did and the site now has 3.3 million fans Offer the infringer reasonable time to migrate or contribute to infringer’s cost of changing the site

12. A Few Items For Your Social Media Policy It should state: The company owns electronic data sent or received on the company computer network none of which is private Employees must identify their company association when commenting on its products Employees may be discharged for disparaging the company, co-workers or customers on social media

13. Questions? Contact Andrew Berger at (212) 702-3167 or berger@thshlaw.com. berger@thshlaw.com Also visit www.ipinbrief.com