Social Media Platforms – Page 10 – Social Media Legality

Is Electronic Vicarious Copyright Infringement a Redundancy?

Vicarous copyright infringement, at least where the Internet is concerned, is nothing more than a redundant tort. A case filed in December 2013 in Maryland District Court illustrates the proposition nicely. National Photo Group, LLC v. Volunteerus, LLC, plaintiff, National Photo Group (NPG) a photojournalism service, brought a cause of action against Volunteerus for posting NPG pictures without authorization on Bubblws.com, a Volunteerus owned website.

According to the complaint, Volunteerus committed direct, contributory and copyright infringement when it “without permission or control, …improperly and illegally copied, reproduced, distributed, adopted and/or publicly displayed works copyrighted by [NPG].” According to the facts, NPG prints were made accessible to anyone on the Internet through its publication on the bubblews.com website.

The elements necessary to prove Internet copyright infringement are fairly well settled and a review of the Supreme Court case, MGM Studios v. Grockster, Ltd. provides a nice primer. The issue for me in National Photo Group is not so much one of whether there was infringement but rather why the tort of vicarious copyright infringement is relevant in the Internet age. In order to prevail under a theory of vicarious infringement, NPG must demonstrate that a third party appropriated the NPG photographs through the Bubblew.com website and that Bubblew.com was “in a position of control” to authorize the use of an infringing work. According to the Gockster Court, a defendant exercises control over a direct infringer when he has both a legal right to stop or limit the directly infringing conduct, as well as the practical ability to do so.

But given both the presumptive nature of and the ease with which anyone can download, print or even email pictures from the Internet it seems the only way to “control” vicarious copyrighters is by not providing these third parties access to the pictures in the first place. Stated more clearly, vicarious copyright infringement can only occur if the primary copyrighter illegally and impermissibly publishes the photographs on its own sites. And isn’t the original publication direct copyright infringement. If so, it seems that vicarious copyright infringement can only occur if defendants engage in direct copyright infringement. In an age of reposts, retweets, and regrams, it is pretty much a fortiori that directly copyright infringement will always lead to vicarious copyright infringement. Consequently, do we really need both torts?

Should we add Doxx to the Lexicon?

Emily Bazelon’s most recent NY Times Magazine article, The Online Avengers, details the activities of a group of individuals who “scour the internet for personal data” of bullies and then “publicly link that information to the perpetrator’s transgressions.” This practice of trolling the internet for transgressions is known as “doxxing.” The article focuses in particular attention to a man named Ash, who, together with a woman named Katherine, created an online group called OpAntiBullying. Although the group never met in person, and never met the victims for whom they championed, they worked together, for a while at least, to publicly shame adolescent bullies. One focus of the article is the infighting that eventually occurred among the small group of “do-gooders,” highlighting the fragile bond between zealots brought together by a common cause, and the way in which their united enthusiasm lead to an equally fevered undoing.

What struck me most about the article, was the use of the word doxx, which I hadn’t heard before. A cursory google search suggests the word has yet to gain much traction. Urbandictionary.com defines doxx as exposing someone’s true identity. A practice, the site suggests “is one of the scummiest things someone can do on the internet.” In contrast, Emily Bazelon profiles doxxing in a more positive manner. In her article Bazelon credits doxxing with bringing down the defendants in the Steubenville sexual assault case and with bringing awareness to a similar assault in Canada.

Doxxers are hackers. In most instances, a doxx can only occur if one breaks into someone’s twitter account, or instagram feed, finding incriminating comments or pictures. Consequently, most doxxers are anonymous, as was the case in the article.

But the practice and the goals of doxxers create a dichotomoy with which I am not sure I am comfortable. While a doxxers goal is more laudable, the conduct necessary to reach his or her goal is often illegal. Its a little like Robin Hood, committing a crime to achieve a better good. I am not sure how I come out on this, though I suspect I fall on the side of legality (would one expect otherwise from a lawyer?)

Regardless, I suspect doxx will become a word uttered with increasing frequency in the coming year. Thoughts, examples or opinions on doxx are greatly welcomed.

Do Tweets Now Require Disclaimers?

In yet another case that disfavors the freedom to post social media rants, The United States District Court for the District of Oregon found that a social services caseworker who posted Facebook comments questioning the ethics of families she supervised, was not entitled to relief for a First Amendment retaliation claim under 42 U.S.C. Sec. 1983. In Shepherd v. McGee (available here) the court found that the First Amendment did not provide protection to plaintiff, whose job it was to evaluate claims of child neglect among families, a majority of whom were on public assistance, for comments such as “So today I noticed a self-sufficiency client getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on Temporary Assistance to Needy Families.” Plaintiff also posted a list of “rules for society” including “If you are on public assistance, you may not own a big flat screen television…”

The court balanced the interest of individual free speech against the government’s interest in assuring administrative efficiency and held for the defendant-government employee who terminated plaintiff. While the case serves as another example of an individual’s qualified right to post on Facebook, the more interesting query to me concerns a seemingly innocuous sentence in Judge Hernandez’ opinion concerning the intersection of personal and professional lives.

Judge Hernandez wrote that plaintiff identified herself on her Facebook pages as a “Child Protective Services Case Worker at Department of Human Services” yet did not provide a general disclaimer that “any content on the page was her opinion and not that of DHS.” Listing one’s job on one’s profile pages is almost as common a practice among Facebook subscribers as is sharing personal pontifications and ruminations. Judge Hernandez’ opinion plants the seed that, to avoid liability, individuals must keep their social media personal and professional lives separate.

This notion of separate lives is gaining significant traction. A recent NY Times article, “They Loved Your GPA Then Saw Your Tweets,” suggests college officials are scanning social media websites as part of their admissions decisions. To be sure, one’s personal social media statements can impact professional life. But is it of such concern that individuals should lose First Amendment protection short of posting a disclaimer to their tweets?

May it Please The Court, I’d Like to Tweet Now

Last week, the Iowa Supreme Court submitted a proposal to revise its current rules for expanded media coverage during courtroom proceedings, specifically addressing the use of smart phones, tablets and the like to live blog and tweet. With most of my courtroom experience to date taking place in NY and PA courts I found this to be quite interesting. Although some judges in NY and PA allow certain uses of mobile devices, most courts I have been in had a pretty strict no-cell-phone-use policy. I have, on more than one occasion, witnessed judges stop everything in order to reprimand an attorney or even a gallery member for not having their phone on silent. There are currently 36 states (see survey link below) that have a policy addressing the use Twitter in the Courtroom, but only a handful of those policies actually allow members of the media to use social media to report live from court.

One can immediately see at least some of the upside of allowing live tweets from court, as nationwide-dissemination of a tweet to the general public will grant them instantaneous access and knowledge of everything happening in the proceeding. However, one should just as easily be able to recognize some shortfalls of allowing the use of social media from live court. For instance, what if an empanelled juror came across certain blogs or tweets that affects their impartiality? Can justice truly be served or will the use of social media during a live trail put certain litigants at a disadvantage? With the exponential growth of social media and more and more people getting their news from social media platforms each year, it seems only inevitable that these are questions courts across the country will be facing in the near future. However, according to the most recent survey conducted by the CCPIO, an organization that partners with the National Center for State Courts, we are still further away than one might think from all courts hopping on the Social Media Train.

California Law Attempts to Protect our Youths Online

A few weeks ago California Governor Jerry Brown signed a new bill (SB 568) consisting of two distinct laws that will take effect January 1, 2015. The bill’s first law attempts to prevent certain online advertisements from reaching the eyes of minors. Any website or mobile application that is directed to minors, or has knowledge that minors use its service, are prohibited from marketing items including alcohol, firearms, tobacco/cigarettes, drug paraphernalia, UV tanning devices, spray-paints, tattoos and fireworks.

In my opinion, the implementation and regulation of this law will lead to more problems than it will solve. The language of this law is so over-inclusive and ambiguous that it fails to create a clear picture for website operators/advertisers to rely on. No where in the law does it require a website to obtain the ages of its users and without such information how are advertisers supposed to know which websites the law is covering? I’m not so sure that advertisers of the ‘black listed’ items intentionally direct their advertisements at kids in the first place, however, I do understand the desire to filter certain aspects of Internet use when it comes to children.

The bill’s second law, the so-called ‘Online Eraser’ law, requires social media type websites (Facebook, Twitter, MySpace and the like) and applications to allow the removal of public content (post, tweet, etc.) upon request of registered users under the age of 18. Again, I completely understand the rationale behind this law (attempting to help a user erase an embarrassing tweet/post from their youth), but it simply will not work as is. A number of commentators have written the law off as ineffective due to the absence of any language that mentions reposts, retweets, or copies of the original. So although the user may be granted a takedown of their original post the law does nothing to help them further. Considering the user is going through the trouble to takedown such ‘regrettable posts’ it seems only logical that the content will be interesting enough to become a 3rd party’s repost or retweet. Recent court decisions have granted First Amendment protection to specific characteristics of social media so even if the law did refer to these subsequent posts aren’t we clearly venturing into First Amendment territory? Critics to this new California law believe that we are.

Another Cyberbullying Case Resulting in Suicide; WHO IS TO BLAME?

by Pat VanHall

In the fallout of the recent suicide of 12-year-old Rebecca Sedwick, from Lakeland Florida, the finger pointing has begun. Police, after making two arrests of a 14-year-old and a 12-year-old, believe the relentless bullies are to blame. The parents of one of the two alleged bullies (who both face felony charges) are deflecting blame to Facebook claiming a hack of their daughter’s account. The father of the younger of the two arrested bullies has been quoted in saying that “he wishes he could have done more” but his lack of social media savvy prevented him from knowing about the bullying. The school district, which “did all it could” to stop the bullying in school, claims it didn’t know about the cyberbullying. All of this, in light of bullying legislation already enacted in Florida which was amended as of July 1, 2013 to include cyberbullying. So what else can we do?

Across the country states are taking direct aim at cyberbullying and new bills (Wisconsin passed such a bill on October 10^th) look to add cyberbullying, texting, and social media language to fully encompass this issue. The main question still remains; will more criminalization of cyberbullying help? Will tweens and teens be deterred by threat of legal consequences? It clearly didn’t help in Florida. I think the bigger problem that schools face is how they will go about monitoring a student’s account once a report of bullying has been made. In my opinion there still remains an enormous divide among generations when it comes to social media know-how. This is my own generalization, but I believe the percentage of students in middle school that are not proficient with at least one type social media (Facebook, Twitter, MySpace, and the like) probably isn’t that far off from the percentage of middle school teachers that are proficient with one or more of the platforms.
The parents of the bullies in this case are a prime example of this dilemma. One parent wishes he knew more about Facebook so he could have done something to prevent it. The other set of parents is claiming a Facebook hack of their daughter’s account insisting that they check her account every day. Both statements seem highly unlikely based on some of the posts the media has shown taken from their daughters account (pictured in the gallery here). So how do we expect teachers and school administrators to be able to monitor the students’ accounts if the parents are unsuccessful in doing so? Facebook used to have age limits (which they clearly cannot revert to) and they do have parental controls, but do parents even know about them? Should there be an age limit that requires parental consent and monitoring for a pre-teen to set up an account? Would that help? I’m not sure what the answer is, but tragic cyberbullying examples like Rebecca Sedwick are indications that things are not getting any better.

Social Justice and Social Media

Ariel Levy’s piece, Trial by Twitter, presents an astute recount of how Twitter lead to the identification, prosecution, and ultimately conviction of two Steubenville High School football players who raped a classmate. The article, which appears in this week’s New Yorker, supports a theory subscribed to dearly by authors of this blog; Social Media makes it harder for officers and defenders of the law to avoid prosecution of politically sensitive crimes. As Levy points out, the Steubenville case came to light, in part, because the victim’s parents presented attorneys with a “jump drive” of tweets relating to the horrible incident. The case divided a city, that was otherwise united in its adoration of its football team, making the prosecution somewhat contentious. Despite the cadre of support for the young men and although at first there was no direct evidence of the crime, the stream of Facebook posts, tweets and other social media, on which high school students posted, created a mountain of evidence that was just too hard to ignore.

In the case of the Steubenville rape, the evidence that spurred the arrests not only lead to the public outcry for prosecution but also provided a start to the acquisition of enough evidence to support a prosecution. In some cases, the social media rally sounds louder than the evidence can bear. In such an instance, we have, arguably, a “Trayvon Martin” type of situation, in which the public outcry caused an attorney general to reconsider opening a case that had previously been deemed unwinable. Ultimately, the initial call may have been right since the jury did not find him guilty beyond a reasonable doubt.

In both instances, however, we have a bit of a cautionary tale. The blaring sound of social media can not be ignored when it comes to matters of social justice.

The Birth of RoboTweeting

NBC News reports that companies are becoming “Twitter-savvy” when it comes to consumer complaints. In some instances customers logging complaint are retweeted with patronizing responses. For example, according to the article, when @OccupyLA tweeted “you can help by stop stealing people’s houses!!” The Bank of America retweeted “We’d be happy to review your account.” Corporate manipulation of Twitter is yet another example of how “the system” can corral innovative technology for its own use. Gen-xers, hipsters and naughts have fled Facebook in droves once businesses hijacked the social media. Now Twitter. Can Instagram be far behind???