Is it “misappropriation of a trade secrets” to contact each person who follows an ex-employer’s Social Media profile for purposes of promoting a competing business?
Early in my law school career, one phrase stuck with me right away: “tough cases make bad law.” This, of course, begs the question, what makes a “tough” case. Usually it’s a unique fact pattern that has limited applicability to a broader spectrum of cases. In the nascent and growing area of Social Media law, there is no shortage of quirky cases.
My hat is off to Eric Goldman who recently blogged about a social media case that is “tough” because of the way that the lawyers framed the issue. On its face, the case of Christou v. Betaport is an unfair competition case between a night club owner and one of his former partners. The case, being tried in a federal court in Denver, Colorado, involves trade secret theft and antitrust allegations and alleged misuse of MySpace “friends.” Essentially, the complaint alleges that Roulier, a principle of Beatport and former associate of Christou, used a MySpace account to promote his club at the expense of Christou.
Goldman gets to the heart of why this case is tough: “the plaintiffs allege that they “secured the profiles through web profile login and passwords.” This is a garbled allegation.” Put another way, the lawyers whose job it is to supply the facts that frame the issues, probably meant to say something else. According to Goldman the plaintiffs probably meant that the defendants accessed an account impermissibly and in so doing accessed information they did not have a right to access. In terms of a claim for trade secret misappropriation, the harm came when defendants used that information.
I like Goldman’s article because he takes the time to break down both the confused framing of the issue, but also the court’s apparent confusion with how to address it. It’s a short article and definitely worth the few minutes it takes to read.
From my perspective the key take-away is a perspective on the trade secret implications of Social Media accounts. Business and their lawyers are constantly trying to evaluate the legal risks of Social Media and provide guidance on how best to mitigate those risks.
Protecting a Social Media account as a trade secret seems a tricky proposition. Ostensibly, the primary “value” of an account is the list of “followers.” A list that is publicly available is, therefore, not a secret. A better approach is to treat the login credentials themselves as the trade secret since this control’s ones ability to access the account and to communicate with those followers.
Please feel free to comment and follow me here: @adlerlaw
Social Media World Legal News Roundup
May 3, 2012
The Government Would Like You to Write a ‘Social Media Will’
The Atlantic
This person will be responsible for closing your email addresses, social media profiles, and blogs after you are deceased. Sounds good, but legally it’s tricky territory.
Rights Groups: Asian Media Freedoms Under Fire
Voice of America
SEAPA says the key trend is that governments are shifting focus from traditional broadcast and print media to social media and online news. SEAPA Executive Director Gayathry Venkiteswaran said online news sites have become the most frequent target.
Liberia: Will Social Media Increase Civic Engagement?
Global Voices Online
CT: The growing usage of the internet and social media in Liberia is certainly a progressive trend. Having worked in Liberia, can you briefly tell us how the internet and social media are viewed by the cross sections of the Liberia population?
Global Voices Online MyCorporation Introduces New Social Media Product
Sacramento Bee
By MyCorporation CALABASAS, Calif., May 3, 2012 — /PRNewswire/ — Calabasas-based company MyCorporation is releasing a new social media product to benefit small businesses, MyCorpSocial.
Students’ racist tweets about Boston hockey game put schools in a bind
msnbc.com (blog)
Hordes of angry hockey fans – presumably Boston Bruins fans — unleashed a barrage of racist rants on Twitter and other social-networking sites after the Washington Capitals beat the defending champion Bruins a week ago Wednesday on an overtime goal.
Keep it private – your Facebook password should not be shared: Commissioner …
Canada NewsWire (press release)
Some of the issues covered in depth in the paper include: Build up a positive online social media profile. “It is absolutely crucial to remember that anything you post online may stay there forever, in one form or another, so think carefully.
Canadians encouraged to plan for online estates
CBC.ca
(CBC)
Canadian consumers are being encouraged to consider their online property, including social media accounts, when planning a will. A new report released earlier this week by the BMO Retirement Institute raises concerns.
SNOPA
Continued concern about employers asking applicants and employees for their passwords to social media sites has led to the introduction of a federal bill.
Social Media World Legal News Roundup
April 10, 2012
The legal and regulatory environment impacting social media is constantly evolving. Here is a collection of recent articles impacting everything from law enforcement use of social media to new legislation.
A social media tip line for police
Boston.com
“Use of social media has provided an additional outlet for people to interact with law enforcement” says Lauri Stevens – founder of LAwS Communications, a consulting company that helps law enforcement agencies expand into social media.
Social media limits and the law
Monterey County Herald
Leland Yee, a San Francisco Democrat, introduced a bill that would prohibit employers, public or private, from requiring or requesting in writing a prospective employee to disclose user names or passwords for personal social media accounts.
Ariz. bill says unlawful to ‘annoy’ others online
BusinessWeek
“Speaking to annoy or offend is not a crime,” Media Coalition Executive Director David Horowitz said. Horowitz said if the proposal becomes law, speech done in satire, political debate or even sports trash talking could get people in unnecessary legal trouble.
Social Media in China, Innovation
Washington Post
Apr. 2, 2012 – April 2 (Bloomberg) — Vivek Wadhwa, fellow at Stanford Law School and head of academics at Singularity University, talks about social media in China and innovation.
UAE legal experts want libel to apply to social networking sites
GMA News
Claiming that Facebook, Twitter and other social networking sites can be used to spread rumors and false information, the legal community in the United Arab Emirates (UAE) is seeking that libel laws be applied to offenders on the Internet.
Is Your Facebook Password Like Your Mail, House Key, or Drug Test?
The Atlantic
A day after it was proposed, the amendment was voted down — almost entirely along party lines — thus closing one door to social media privacy legislation, at least on the national level. (There are similar social media privacy laws — full bills, …
Sponsor: Arizona bill isn’t aimed at Internet trolls
CNN
The fear is that the bill would prohibit hateful comments on news and social-media sites, amounting to a ban on so-called Internet trolling. The problem: The bill won’t do any of that, its sponsor told CNN on Wednesday. “I think they’re absolutely …
How Family Law Attorneys Use Social Media Evidence [Infographic]
PR Web (press release)
Family Law Attorneys Dishon & Block formally released today an infographic that illustrates how attorneys use social media to collect “smoking gun” evidence for divorce and child custody cases. With the advancement in technology and modernizing of laws …
See all stories on this topic »
PR Web (press release)
David M. Adler Speaking on Social Media Legal Issues for Marketers at CONVERGE Spring Symposium 2012
April 5, 2012
Icon of Law Firm--owned by user. (Photo credit: Wikipedia)
Attorney David M. Adler will be speaking as part of a legal panel on “legal landmines”, e.g. legal risks and regulatory compliance, in social and mobile marketing as part of the CONVERGE Spring Symposium 2012 taking place in Silicon Valley, May 1-2, 2012.
Topics to be addressed include best practices for direct, digital and mobile marketing including advising on permission-based marketing, emerging technologies, the use of various social media platforms, as well as data security and privacy issues related to electronic and mobile commerce.
New FTC guidelines in the areas of advertising any marketing, as well as consumer privacy and security, have raised awareness of these issues for brands, marketing firms and service providers.
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and nationally-recognized speaker in the fields of intellectual property, media & entertainment and technology law with a multidisciplinary practice focused on counseling businesses across the interrelated areas of Intellectual Property Law, Media & Entertainment, Information Technology and Corporate Law. David provides legal counsel on trademark and copyright clearance, registration and enforcement, digital and new media licensing, production, finance, regulations, Social Media, litigation and corporate-commercial transactions.
David has an extensive private-practice and in-house background counseling clients on marketing, advertising and content deals, lead-generation agreements, referral agreements, advertising-supported revenue deals, product placement, affiliate marketing/group-couponing platforms, CAN-SPAM compliance, digital rights management for video, music, and games. We work with many of the leading studios, labels, social networking sites, and online music companies. He also specializes in advising artistic talent and creative professionals in the arts, entertainment, media and sports industries.
David M Adler, noted entertainment and creatival arts lawyer will be participating in the Visiting Artist Series with Reginald Lawrence (Shepsu Aakhu).
Tuesday, April 10, 2012 11:50 – 1:30 pm
DePaul Center – Room 80051 E. Jackson Blvd.Chicago, IL 60604
Lunch will be served.
Visiting Artist Reginald Lawrence (Shepsu Aakhu) will discuss the legal issues that he has faced in his multi-dimensional career as a playwright, producer, director, and arts educator. In particular, he will focus on the life cycle of a theatrical production from dealing with authors to hiring actors, directors, and crew to mounting the finished production. He will share his perspective on legal questions related to collaboration, intellectual property, and production credit.
Leading Chicago arts lawyer David Adler will join in the conversation, and Professor Margit Livingston will moderate.
For more information on the Visiting Artist Series, please click here.
Registration: General registration is $25 for the 1.5 hour CLE discussion. To register, please visit http://www.regonline.com/reginaldlawrence.
DePaul students, faculty, and staff can register to attend for free by emailing Cecelia Story at cstory@depaul.edu.
DePaul University College of Law is an accredited CLE provider. This event has been approved for 1.5 CLE credits.
ALERT: BEWARE OF SUSPICIOUS NOTICES REGARDING YOUR TRADEMARK APPLICATIONS & REGISTRATION
March 26, 2012
It seems that every few months my clients get a raft of notices from very “official” sounding business, like “United States Trademark Protection Agency” seeking payment for services that appear to be necessary to maintain a trademark application or registration. As technology improves speed and efficiency, more of these opportunists are appearing.
U.S. Trademark Applications & Registrations are Public Records.
Filing an application for U.S. trademark registration makes certain information publicly available in the U.S. Trademark Office records. Several companies have been scraping these records and generating “official looking” notices and even invoices to unsuspecting companies. These notices appear strikingly similar to governmental agency communications and direct you to pay fees for registration, monitoring (keeping an eye out for applications similar to yours) and for filing with domestic or international lists, directories, etc.
MANY OF THESE ARE SCAMS.
Despite claims otherwise, the United States Trademark Protection Agency (USTPA) is NOT a governmental agency and the U.S. Trademark Office (USPTO) web site even showed a warning that the USTPA is NOT affiliated with the USPTO.
Some companies charge fees to be listed in their worldwide trademark registration directories. These are not official filings, their usefulness is limited and they have no legal effect.
Other companies hire non-legal administrators to do trademark filings without proper supervision or training. These companies can prove very costly due to filing problems. I hope you are not confused by such mailings. Often, if you are represented by counsel, the U.S. Patent & Trademark Office will not send mailings directly to you, they will be sent to your attorney of record. While some of these companies offer legitimate services, you should seek advice from legal counsel before utilizing them. Some examples of these companies include the following:
- Globus Edition S.L. in Spain
- Trademark Renewal Service in Washington, D.C.
- Company of Economic Publications Ltd. in Austria
- Edition The Marks KFT in Hungary
- United States Trademark Protection Agency located in Seattle, Washington
- Institute of Commerce for Industry, Trade, and Commerce located in Switzerland
- CPI (Company for Publications and Information Anstalt) in Liechtenstein (a phantom company which says it works with
- The Publication of Brand Names of the International Economy – another phantom company)
- IDM International Data Medium AnsbH in Liechtenstein
- S.A.R.L. – Societe pour Publications et Information located in Austria
- TMI Trademark Info Corporation located in Pearland, Texas
- ZDR – Datenregister GmbH in Germany
Many of these organizations send notices that look like invoices. I suggest that you not make payments without first consulting your attorney.
Lawyers Top 10 Tricks for Managing Intellectual Property
February 22, 2012
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Intellectual property is often the most significant driver of value among a company’s assets. Therefore, it is increasingly important for companies to actively manage their intellectual property assets to identify, categorize, register and enforce IP assets while minimizing the possibility of legal disputes.
Whether acquiring technology, developing new products or taking stock of the company’s intangible assets, companies must develop ways to protect their assets better, determine ways to realize more revenue from such assets, and reduce risks of costly litigation.
Below are ten intellectual property management tips that will help Companies and their counsel identify and protect IP assets and address infringement issues, among other key steps.
1. Identify: Simply put, think about what patents, trademarks and copyrights you might have and categorize them appropriately. This includes ideas in development.
2. Organize: Once categorized, review the relevant creation and publication/use dates. Determine registration status. File necessary maintenance documents as appropriate and create calendar/docket future due dates for supplemental filings.
3. Monitor: Review the USPTO and Copyright office databases periodically to ensure no junior users may weaken your rights.
4. Conduct a USPTO “Basic Search”: Start your search here. Individual results pages will include direct links to the mark’s records in TARR (best way to check current status of application/mark), ASSIGN (best way to see if the mark has been assigned), TDR (best way to retrieve relevant documents), TTAB (search and review board proceedings).
5. Conduct a USPTO Document Search: Use this database to determine existence of and locate documents related to specific applications.
6. Conduct a Copyright.gov Search: This is the best place to start with any copyright related questions. Includes searched for copies of registered works.
7. Google- search: Great secondary, broad-stroke search. Tends to return higher percentage of irrelevant results, but good at finding that needle-in-a-haystack type rip-off/con artist.
8. Create Google alerts: Use these to stay abreast of relevant changes in the database. Narrow alert criteria to specific keywords/phrases.
9. Conduct a State Trademark Databases Search: Don’t forget your own back yard. Search state databases for d/b/as, etc. (IL=cyberdriveillinois.com).
10. Ask you lawyer about specific concerns. Every situation is different and the only way to properly asses the risks/costs of any course of action is to discuss your matter with a competent attorney who practices in this area.
©2012 David M. Adler, Esq. All Rights Reserved.
RSA 2012 Conference Podcast: Social Media Legal & Regulatory Compliance
February 14, 2012
The past few years have witnessed an explosion of legal and regulatory activity involving social and other new media. This session will examine several key areas, including copyright, trademark and related intellectual property concerns; defamation, obscenity and related liability; false advertising and marketing restrictions; gaming; data privacy issues presented by social media; and impacts of social media on employees and the workplace. Attendees will learn how to identify legal risks and issues before they become full-scale emergencies and how to develop appropriate policies and guidelines covering social media activity.
The RSA® Conference 2012 is coming up: February 27 – March 2, 2012 at the Moscone cEnter in San Francisco, CA.
Can’t make the Conference? Listen to the podcast here to get a sense of what you need to know.
What is this case really about? Judge Colleen McMahon notes in her opinion that “this case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’.” Rather this case is about “whether Kirby’s work qualifies as work-for-hire under the Copyright Act of 1909, as interpreted by the courts.”
On Thursday, Judge McMahon ruled that the heirs of the late Jack Kirby, creator and co-creator of the well-known Marvel Comics superheroes such as Fantastic Four, X-Men, the Hulk and more, have no legal claim to the copyrights of those characters.
Despite press efforts (including two pieces in the New York Times) to characterize the proceeding as “unfair” to the artists and creators upon whose labors companies profited, the decision reflects long-standing law that vests ownership of certain creative works in the company that commissions them as a “work-made-for-hire.”
ABOUT THE AUTHOR
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: http://www.ecommerceattorney.com and here: Leavens Strand Glover & Adler, LLC
US bank consortium develops social media framework
July 23, 2011
BITS, the technology policy division of US bank-backed The Financial Services Roundtable, has released “Social Media Risks and Mitigation,” a framework for financial institutions adopting social media and a guide to managing related security risks.
Social media issues span legal, compliance, marketing, communications, IT and human resources departments. “Financial services customers are using social media and demanding that institutions have a secure and prudent presence there,” said Andrew Kennedy, BITS’ social media lead. The bits paper provides an enterprise-wide view of policies, practices, communications and risk management strategies.
Read the full article here: http://tinyurl.com/44rntx2
ABOUT ME
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: www.ecommerceattorney.com
