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+ Trademark & Copyright Law Lions, Tigers & Friends: Social Media Law Roundup 29 th Annual Intellectual Property Law Conference April 2, 2014.

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Presentation on theme: "+ Trademark & Copyright Law Lions, Tigers & Friends: Social Media Law Roundup 29 th Annual Intellectual Property Law Conference April 2, 2014."— Presentation transcript:

1 + Trademark & Copyright Law Lions, Tigers & Friends: Social Media Law Roundup 29 th Annual Intellectual Property Law Conference April 2, 2014

2 + Today’s Discussion: Panel Hannah Poteat Poteat Law Jennifer Criss Drinker Biddle & Reath, LLP Ganka Hadjipetrova Hadjipetrova Law Perry Sofferman Becker & Poliakoff, P.A.

3 + Today’s Discussion: Issues Personal Jurisdiction Over Social Media Users Social Media and Discovery in Civil Litigation Litigating Privacy Policies Social Media and the First Amendment Impersonation and Social Media

4 + Personal Jurisdiction Over Social Media Users

5 + Personal Jurisdiction Intercarrier Communs., LLC v. Kik Interactive, Inc., No. 3:12 ‐ CV ‐ 771 ‐ JAG, 2013 U.S. Dist. LEXIS 112715 (E.D. VA Aug. 9, 2013) “A company does not ‘consciously’ or ‘deliberately’ target a forum if a user unilaterally downloads and uses its software within that forum, nor does ICC cite any authority supporting its broad interpretation of specific jurisdiction.”

6 + Personal Jurisdiction Harp v. Koury, No. 13 ‐ 2470, 2013 U.S. Dist. LEXIS 117785 (E.D. PA Aug. 15, 2013) Court tested possibility of finding specific jurisdiction under the Calder “effects” doctrine. Finding that the defendant did not know that the plaintiff would suffer the brunt of the harm in the forum, i.e. the defendant had not “expressly aimed” the tortious conduct at the forum, state the Court dismissed the case for lack of personal jurisdiction.

7 + Personal Jurisdiction Hyperbaric Options, LLC v. Oxy ‐ Health, LLC, No. 12 ‐ 12020, 2013 U.S. Dist. LEXIS 140347 (E.D. MI Sept. 30, 2013) Court followed Sixth Circuit’s narrowed approach to the Calder “effects” test, noting that “something more” is required to demonstrate that the defendant directed its activity toward the forum state. The Court refused to establish personal jurisdiction despite the defendant’s knowledge that the plaintiff would suffer the brunt of the harm in the forum state.

8 + Personal Jurisdiction NobelBiz, Inc. v. Veracity Networks, LLC, No. 13 ‐ CV ‐ 2518 YGR, 2013 U.S. Dist. LEXIS 139709 (N.D. CA Sept. 27, 2013) Court said that Veracity’s mere presence on social media sites did not, without more, support an inference that it seeks nationwide sales.

9 + Personal Jurisdiction Caspers Ice Cream, Inc. v. Fatboy Cookie Co., No. 1:12-CV-133, 2013 U.S. Dist. LEXIS 76058 (D. UT May 29, 2013) Court said that the accessibility of New Jersey company’s website and social media in Utah was not a sufficient contact for Fatboy to anticipate it would be subject to suit in that state.

10 + Social Media and Discovery in Civil Litigation

11 + Discovery Keller v. Nat’l Farmers Union Prop. & Cas. Co., No. C ‐ 12 ‐ 72 ‐ M ‐ DLC ‐ JCL, 2013 U.S. Dist. LEXIS 452 (D. Mont. Jan. 2, 2013) Court applied threshold test whereby discovery of a plaintiff’s private social networking site content is only permissible when the defendant makes a “threshold showing that publicly available information on those sites undermines the plaintiff’s claims.”

12 + Discovery Salvato v. Miley, No. 5:12-cv ‐ 635 ‐ Oc ‐ 10PRL, 2013 U.S. Dist. LEXIS 81784 (M.D. Fl. June 11, 2013) Court applied threshold test where a party “may obtain discovery on any nonprivileged matter that is relevant to any part’s claim or defense” if it meets the threshold burden of showing that the requested discovery is relevant.

13 + Discovery Jewell v. Aaron’s, Inc., No. 1:12 ‐ cv ‐ 0563 ‐ AT, 2013 U.S. Dist. LEXIS 102182 (N.D. Ga. July 19, 2013) In this class action the Court held that a single individual’s (the named plaintiff’s) post on a social media site has no bearing on whether all 87 plaintiffs had received a bona fide meal period as required under federal law.

14 + Discovery Giacchetto v. Patchogue ‐ Medford Union Free Sch. Dist., 293 F.R.D. 112 (E.D.N.Y. 2013) The court opted not to apply the threshold test to determine whether the school district was entitled to discovery of any private social networking posts. Instead, the court conducted a traditional relevance analysis. The court did not require Giacchetto to provide routine status updates but did require her to produce any specific references to emotional distress suffered as a result of any source of stress, not just the incident at issue.

15 + Litigating Privacy Policies

16 + Harris v. comScore, 825 F. Supp. 2d 924 (N.D. Ill. 2011) Court held that “a click-through agreement is not enforceable if its terms are not reasonably apparent to the user” and that “it is not reasonable to expect a user casually downloading free software to search for such an agreement if it is not immediately available and obvious where to obtain it.”

17 + Litigating Privacy Policies FTC v. Wyndham Hotels and FTC v. LabMD The FTC brought actions against Wyndham and LabMD, respectively, under its Section 5 authority for unfair and deceptive practices for data breaches.

18 + Litigating Privacy Policies In re Google Inc. Gmail Litigation, Case No.: 13 ‐ MD ‐ 02430 ‐ LHK, 2013 U.S. Dist. LEXIS 172784 (N.D. CA Sept. 26, 2013) Plaintiffs from several states brought suit against Google for targeted advertising that appears on Gmail users’ pages in violation of privacy laws.

19 + Social Media and the First Amendment

20 + Legislation Restricting or Banning Use of Social Networks by Registered Sex Offenders California Delaware Georgia Indiana Louisiana Michigan Nebraska Nevada New Hampshire New Jersey New York North Carolina Utah Wisconsin

21 + Legislation: Provisions (generally) Require disclosure of Internet identifying information Internet restrictions (e.g., no use of social media) Provide consent to search computer or device Monitoring of Internet use

22 + Challenges First Amendment Fourth Amendment Ex Post Facto Fourteenth Amendment Supremacy Clause

23 + First Amendment Analysis Content based: strict scrutiny Content neutral: intermediate scrutiny Prior restraint?

24 + Content Neutral Invalidated as insufficiently narrowly tailored Failing to leave open alternative channels of communication Disclosure of Internet identification: violation of one’s right to maintain anonymous speech

25 + Key Issues Parole Supervised release Civil, non-punitive

26 + First Amendment John Doe, et al. v. State of Nebraska, 898 F. Supp.2d 1086 (D. Neb. 2012) Case examined a statute that criminalized registered sex offenders’ use of social networking sites Cases raises First Amendment, Due Process, Ex Post Facto and Fourth Amendment issues

27 + First Amendment J.B v. New Jersey State Parole Board, 433 N.J. Super. 327 (2013) Court held that statute and regulations authorizing internet restrictions to be imposed on offenders did not facially violate offenders’ free speech rights

28 + First Amendment Perez v. Dietz Development, LLC, No. 122157, 2012 Va. LEXIS 227 (VA Dec. 28, 2012) Case involving critical reviews of contractor on Yelp and Angie’s List that included customer’s suspicion that contractor stole jewelry from plaintiff’s house. State court issued preliminary injunction but Virginia Supreme Court reversed for unspecified duration and availability of other remedies at law.

29 + First Amendment Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va.App. 678, 752 S.E.2d 554 (Ct. App. VA 2014) Case involves the balance between the right to free speech by anonymous publishers and businesses’ interest to protect their reputation from defamatory statements. The state court ordered Yelp to reveal the identities of 8 negative reviewers of the plaintiff’s business. Yelp refused and was held in contempt; the court of appeals affirmed. Yelp appealed before the VA supreme court in February; decision is pending

30 + First Amendment Gordon & Holmes v. Love, No. BC462438 (Superior Court of Los Angeles County, California) Attorney sought $8 million in damages against former client, Courtney Love, for an allegedly libelous Tweet (Love suggested that Holmes had been “bought off” in the case against the administrators of Kurt Cobain’s estate) Jury found that Love’s tweet was not libelous Love said that it was intended as a private message and that she deleted the Tweet immediately upon realizing it was published publicly

31 + Impersonation and Social Media

32 + E-Impersonation As of June 2012, approximately 83 million of 955 million Facebook profiles were fake Assist in gathering intelligence Cyberbullying Fraud False endorsement Scraping

33 + Computer Fraud and Abuse Act 18 U.S.C. §1030 Criminal cybersecurity law that protects federal government computers, financial institution computers, and other computers connected to the Internet from trespass, threats, damage, spying, and being used for purposes of fraud Interstate or foreign commerce or communication Conspiracy and attempt to commit are subject to same criminal penalties as the offense itself Also provides for a private right of action

34 + Key Issues Protected Computer? A computer used by a financial institution or the U.S. government, or a computer used in or affecting interstate or foreign commerce or communication, including a computer located outside the U.S. Exceeds authorized access? Accessing a computer with authorization and using this access to obtain or alter information in the computer that the accessing party is not entitled to obtain or alter

35 + Key Issues (continued) It is a crime to “intentionally” access a protected computer without authorization and as a result cause damage and loss “Damage” is an impairment to the integrity or availability of data, a computer program, system or information “Loss” is a “reasonable cost” to a victim, including the cost of responding to an offense, conducting a damage assessment, restoring data, programs, systems, or information to its condition prior to the offense, and revenue lost, costs incurred, or other consequential damages incurred because of interruption of service

36 + E-Impersonation Consider in context of United States v. Lori Drew, No. CR 08-0582-GW (C.D. Cal. Aug. 28, 2009) Matot v. CH, No. 13 ‐ cv ‐ 153 ‐ TC, 2013 U.S. Dist. LEXIS 138327 (D. Or. Sept. 26, 2013) Case involving middle school assistant principal’s claim alleging that the creation of social media accounts under his name by students violates the Computer Fraud and Abuse Act

37 + Thank You! Lions, Tigers & Friends: Social Media Law Roundup Hannah Poteat 415.967.3690 Jennifer Criss 202.230.5648 Ganka Hadjipetrova 408.910.0390 Perry Sofferman 954.364.6021

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