From the category archives:

Social Media Law

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No idea who, if anybody, has rights to this image, but worthy of reproduction and found by me HERE.

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Our Edinburgh colleague WardBlawg has written a comprehensive post on the pending United States PhoneDog litigation where the company is trying to regain control of its employee’s Twitter account that contains 17,000 followers and was apparently compiled during the employee’s tenure with PhoneDog. Also on the table is $340,000 in claimed damages.

More background on this action can be found in the November 2011 Forbes article HERE.

Read the Forbes article and understand my scepticism. Is not the list of followers public? Can a public list be a trade “secret”? And did the defendant create it as an “employee”? As Kravitz states in Forbes”

“No one asked me to create the account. No one told me what to tweet there,” says Kravitz, who originally created the account because that what’s everyone in the tech world was doing. “I had no inkling then that [having a Twitter account] would become an essential part of being a so-called journalist.”

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cfm_lit1_phixr (1)Tip of the hat to the NYC law firm of Wahab & Medenica LLC (a New York business law firm) for compiling this list. Their discussion of these documents is in two parts, HERE and HERE.

1. ARTICLES OF ORGANIZATION (LLC’s Only)

2. CERTIFICATE OF INCORPORATION (Corporations Only)

3. OPERATING AGREEMENT (LLC’s Only)

4. BYLAWS (Corporations Only)

5. SHAREHOLDERS AGREEMENT (Corporations Only)

6. STOCK PURCHASE AGREEMENT (Corporations Only)

7. MEMBERSHIP INTEREST ASSIGNMENT AND TRANSFER AGREEMENT (LLC’s Only)

8. Technology Assignment Agreement (Corporations and LLC’s)

9. Intellectual Property and Invention Assignment Agreement (Corporations and LLC’s)

10. Employment Agreement (Corporations and LLC’s)

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[via Julie Gottlieb at SocialMediaNews]

“In her article, Social Media and Intellectual Property Risks, Pria Chetty lists the top 5 intellectual property risks when using social media. The first relates to ownership of social media accounts. Chetty writes:

“Where an employee creates a Social Media account in the name of the company on for instance, Twitter and uses Twitter to communicate (tweet) information about the company, does the company or the employee own the account? Does the company or employee own the contacts (followers)? Most importantly, does the company, employee or Twitter own the content posted?”

The social media platform companies need to create a category of registration that clearly defines an account as corporate or personal. Although such a designation would not be dispositive in a litigation between employer and employee, it would certainly have massive evidentiary weight. Also, since social media is inherently an individual driven tool, I would assert that a social media account with a personal handle should be presumed to be personal unless conclusive written evidence to the contrary existed.

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(Thanks as always to LLRX via @bsookman in Toronto)

Romano v. Steelcase, Inc., run of mill products liability case, Court allows discovery of “private” Facebook and MySpace posts:

However, contrary to Plaintiff’s claims, Steelcase contends that a review of the public portions of Plaintiff’s MySpace and Facebook pages reveals that she has an active lifestyle and has traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity”.

An attorney, of course, may, according to New York State professional ethics rules, directly access public Facebook postings without a court order:

” A lawyer representing a client in pending litigation may access the public pages of another party’s social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.”

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