Intellectual Property Considerations for Businesses using Social Media

Transcription

1 Intellectual Property Considerations for Businesses using Social Media Aly Dossa July 2012 Houston Paris Silicon Valley Tokyo Austin Hangzhou

2 What is Social Media? Web- and mobile-based technologies which are used to turn communication into interactive dialogue among organizations, communities, and individuals. ( media, last accessed July 25, 2012) Examples Social Networking - Facebook, LinkedIn Microblogging - Twitter Social Bookmarking Delicious (formerly del.icio.us) Social News - Digg, Reddit, Newsvine Social Content Sharing - Instagram

3 Consideration 1: Posted Content What can I post? Do I own the content I post? Or does the social media service own my content? What can the social media service do with the content I post? As a company, what can I do with user content that is posted on my social media site?

4 What can I post? Most Terms of Service do not specify what you can post but do specify what you are not allowed to post and what actions the social media service can take if you post something that violates the terms. Further, you may be liable for any issues arising out of the content you post.

5 Example: Instragram Terms of Use We may, but have no obligation to, remove Content and accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any party s intellectual property or these Terms of Use. (emphasis added) ( last accessed July 25, 2012)

6 Example: Digg Terms of Use You will indemnify and hold harmless Digg, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any liability, damage or cost (including reasonable attorneys. fees and cost) from (i) any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, violation of the Terms of Use by you, or the infringement by you, or any third party using your account or Digg User ID, of any intellectual property or other right of any person or entity (Emphasis Added) ( last accessed July 25, 2012)

7 Do I own the content I post? The general trend for social media services is that you own the content that you post.

8 Example: Facebook Statement of Rights and Responsibilities You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. (emphasis added) ( last accessed July 25, 2012)

9 What can the social media service do with the content I post? While they don t own the content, the Terms of Service for social media services typically require that you (the content owner or valid content licensee) grant a license to the social media service to use your content in their service. The scope of the license depends on the aim of the social media service.

10 Example: Twitter Terms of Service By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). ( last accessed July 25, 2012)

11 Example: Facebook Data Use Policy We use the information we receive about you in connection with the services and features we provide to you and other users like your friends, our partners, the advertisers that purchase ads on the site, and the developers that build the games, applications, and websites you use. (Emphasis Added). ( last accessed July 25, 2012)

12 As a company, what can I do with user content that is posted on my social media service? The answer to this question is governed by your terms of service. Companies should determine how they want to use user posted content and ensure that the appropriate language is in their terms of service. Based on the experiences of companies such as Facebook, it is better to spend the time up front to craft an appropriate terms of service before launching your social media service.

13 Consideration 2: Trademark Use Common trademark issues that arise through the use of social media services: Trademark infringement Use of trademark as a parody or to impersonate trademark owner

14 Trademark Infringement Social media services may include procedures for trademark owners to complain about unauthorized trademark use (username squatting, URL squatting, etc.). However, unlike copyright enforcement, social media services tend not to have streamlined trademark enforcement procedures.

15 Example: Twitter Trademark Policy When we receive reports of trademark policy violations from holders of federal or international trademark registrations, we review the account and may take the following actions: When there is a clear intent to mislead others through the unauthorized use of a trademark, Twitter will suspend the account and notify the account holder. When we determine that an account appears to be confusing users, but is not purposefully passing itself off as the trademarked good or service, we give the account holder an opportunity to clear up any potential confusion. We may also release a username for the trademark holder's active use. (Emphasis Added) ( last accessed July 25, 2012)

16 Example: Personalized URL Facebook Launched in June 2009 page Companies were able to reserve their personalized URL with Facebook: and by providing a nominal amount of checking to confirm that the trademark owner was the entity that applied for the personalized URL. Since then, Facebook has shifted the burden to the trademark owners to monitor their trademarks. This is a common trend among social media services.

17 Example: Youtube Trademark Policy If you are a trademark owner and you believe your trademark is being infringed due to a username issue, please note that YouTube is not in a position to mediate trademark disputes between users and trademark owners. As a result, we strongly encourage trademark owners to resolve their disputes directly with the owner of the username. (Emphasis added) ( last accessed July 25, 2012)

18 Use of trademark as a parody or to impersonate trademark owner Stopping an entity from impersonating a company through use of the company s trademark is typically handled by the trademark policies of the social media services. Third parties may use trademarks to parody a brand, the extent to which such use is considered a parody is based on the particular use

19 Example: Twitter Parody Policy Twitter users are allowed to create parody, commentary, or fan accounts (including role-playing). Twitter provides a platform for its users to share and receive a wide range of ideas and content, and we greatly value and respect our users' expression. Because of these principles, we do not actively monitor users' content and will not edit or remove user content, except in cases of violations of our Terms of Service (Emphasis Added) ( last accessed July 25, 2012)

20 Questions?

21 Legal Disclaimer The views expressed in this presentation are the authors own personal opinions and beliefs. The information presented is not legal advice tailored to any particular factual circumstances and does not necessarily reflect the views of the firm or its clients.