So You Want To See A Social Media Law Final? (2019 Edition)

The 2019 Law & Social Media class ended back in May, but I totally forgot to share the final exam with everyone until now.  My apologies, and here you go.  How would you answer?

QUESTION ONE

No sooner have you graduated law school, passed the bar, and opened your own Social Media Law Practice when the phone rings.

“Billy McFarscam here,” the voice on the phone tells you. “I need your help!”

You listen to Billy’s tale of a music festival he wants to hold on a remote tropical island. He says the festival will have so many bands and rappers and singers and mimes and A-list celebrities that it will no doubt be the hottest event on the planet. It will be so hot, he tells you, that the air around the festival will combust with hotness. So he has decided to call this the BUST Festival.

“First thing’s first, we have to create a ton of buzz about the event. So I’ve hired every influencer I can find. Some have millions of followers, some only have a few hundred. One account is only followed by my mom. I’ve told them to all post a blank black screen tomorrow on every social media platform they can. The only caption will be a mention of my Instagram account, @TotalBustFestivalRocksSoHard. I’ve also told all my employees to do the same, along with the five agencies I’ve hired to help promote the event. So many influencers and employees posting away, we’re going to get so much attention, right? I think it’s a guaranteed hit, but then I thought maybe there’d be some legal issues here so I’m wondering if you can advise me on my campaign.”

What advice do you give Mr. McFarscam about his campaign?

QUESTION TWO

Billy McFarscam is so pleased with your legal advice he immediately retains your legal services with a check for $300,000 (with strict directions not to cash the check until next February 30).

Billy’s latest idea is around a contest he’s going to hold as part of the BUST Festival. Billy has buried a treasure chest filled with valuable prizes (he won’t say exactly what but you think he said something about “$50 worth of kazoos”) on the island. His plan is to have people post on social media about the BUST Festival. Every time they post about the Festival they’ll earn points–plain text posts using the hashtag #TotalBUST get 1 point, regular pictures that tag the festival’s Instagram account earn 3 points, pictures with Bust Festival shirts earn 10 points.

After two weeks, people who have entered the contest will receive clues based on how many points they’ve received. 1-20 points gets a general clue, 21-50 points gets more clues, etc. And whoever digs up the treasure chest first, wins the prize.

Mr. McFarscam is convinced this is the greatest contest ever invented or that ever will be invented, but he wants to make sure that he’s covered against any potential legal issues since he’s never done a contest (or a music festival) before.

What advice do you give him about his contest?

QUESTION THREE

The day of the BUST Festival has quickly arrived. Although Billy offered you free tickets to the event, you politely declined and stayed home to work with other clients, ones who pay. You start seeing some news alerts on your phone and computer about the BUST Festival and the coverage is entirely negative.

Stories about shoddy tents instead of promised luxury villas are on CNN. Reuters ran a report of all the bands that have cancelled their appearances leaving only Nickelback and a Christian metalcore band to play all three days of the festival. MSNBC posted pictures taken at the festival showing the advertised gourmet meals are nothing more than a packet of string cheese and a sleeve of crackers.

Billy calls you, his voice in a bit of a panic. In the background of his phone you hear screams and crowds of voices. Billy is livid over all the negative press and wants to know what can be done to take it down, take it all down. He says that all tickets required BUST Festival attendees to assign the copyright in any picture or video taken at the festival to Billy so he wants all the pictures and videos taken down immediately. He doesn’t care as much about the text posts because he doesn’t think people read anymore.

What do you tell Billy you can do about these posts?

 

So You Want To See A Social Media Law Final? (2018 Edition)

Another year of my Law & Social Media class at the University of Texas School of Law is in the books.  The grades have been entered and now I can share with you all this year’s final exam.  Let me know your thoughts/answers in the comments!

QUESTION ONE

It’s your first day on the job at Maramountal Bros. studio, makers of every movie you’ve ever seen and quite a few you haven’t. You’ve been lucky enough to join their newly formed Social Media Division, and while they plan on eventually extending the department to more people, for now the entire staff consists of you and a laptop. And the laptop doesn’t have a law degree.

The Head of Marketing bursts into your office like his hair is on fire. Which is impressive, since he’s bald.

“We’ve got a situation!” he yells with an exclamation point. He goes on to describe how the latest movie in their massive hit franchise is about to be released. The series of movies is based on superheroes who drive around the world in exotic cars and fight crime or each other. While the cars are typically turbo charged by NOS (nitrous oxIde), in this latest film a new Totally Hyper Active NOS (or THANOS) has been developed. It’s incredibly powerful but has a good chance of killing people so it must be stopped.

Your head of marketing is upset because some people at advance screenings are starting to post spoilers on social media. The studio is concerned that if these spoilers continue to spread then nobody will see the movie.

“I mean, I want it to be a surprise when [REDACTED] dies or when [BELOVED REDACTED] bites it,” he mutters, while actually saying the word redacted as he speaks.

The majority of these posts are appearing on the hot social media platform, MADE-UP. The platform was created a year ago and continues to serve the needs of fictional social media users and social media law professors everywhere. And, your head of marketing points out, it’s a platform where you spend several million dollars a year on advertising.

MADE-UP’s terms and conditions do say that “Content may be removed at the sole discretion of MADE-UP for failing to contribute to our community.” But so far, MADE-UP has refused to remove any of the posts Maramountal Bros. has flagged.

The head of marketing would like you to compose an email to the MADE-UP General Counsel to try and convince them to remove the posts. And since time is of the essence, he wants you to anticipate their responses so you won’t have a lot of back and forth. But he’s willing to give you an hour to write it. So hop to it.

QUESTION TWO

No sooner do you hit Send on the email to MADE-UP when your head of Human Relations comes storming into your office. Which is impressive because there’s actually a storm cloud floating around her head.

“You’re the Social Media lawyer, right?” she says as lightning strikes her chin. You nod, a bit afraid to speak. “Yeah, so it turns out some of those spoiler leaks for the new movie, Endless Skirmishes—you know, the one about THANOS—came from our employees. Our own employees! It makes me so mad!” A small tornado emerges from her left nostril and violently recedes.

“It turns out we don’t even have a social media policy! How is that even possible?” she screams as a hailstone falls out of her ear. “Listen, I know one hour is way too short for you to draft a social media policy for our whole company, but I have a meeting with some important people in 60 minutes. Really important people whose names and positions I can’t think of right now. But I’m going to need to tell them about what we’re going to do for a social media policy.

“Can you give me some highlights of what we can and can’t do for our employee’s social media policy?” she asks while a rainbow bursts from her eyebrow. “And please make it easy to understand—I’m not a lawyer and none of the actual, real-life people I’m meeting with that I didn’t just make up are lawyers either.”

You sit back, open the umbrella you conveniently packed in your laptop bag, and turn back to your laptop. Compose something easy for non-lawyers to understand about what your social media policy for employees should and shouldn’t have in it.

QUESTION THREE

You’ve just handed off your material to the head of Human Relations when the Vice-President in Charge of Movie Development and Overly Long Job Titles sits down at your desk. Which is impressive, because there isn’t a chair on the other side of your desk.

“Social Media and movies, who would think those go together, am I right?” he says while you wonder how he hasn’t fallen down. You nod, afraid to upset his balance.

“So listen, turns out we just acquired the rights to two old movies: Chef and Catfish. My people tell me those movies have some good social media lessons in them—as if people would actually watch movies for social media lessons! I want to combine the two movies and call it Cheffish and I want to make it super educational about social media. You know, really tell people about the risks they or their company may face on social media.

“I’m going around to all the departments and asking them what kinds of lessons I should include in the new movie. I’m definitely interested in what you learned from the movies—wait, you watched the movies, right?” You nod, because of course you watched the movies. It was listed on the job requirements the whole semester…um, job interview process.

“Would you mind telling me what kinds of lessons I should put in the new movie? Feel free to reference the old movies, or make up whatever you want. This is the movie business, after all.”

He stands up, making you wonder again how he was sitting, and casually strolls out of your office. Just as he passes the door he yells back “Anytime in the next hour will be fine!”

Grinning wildly because you totally watched both those movies, you write out your proposed lessons for the new film.

The Tyranny Of Terms: How Zillow Is Overreaching

“Never go full Corinthian.”

The blog McMansion Hell (if the link isn’t working, read on to find out why) is dedicated to pointing out the architectural problems with houses commonly called McMansions.  Kate Wagner, an architecture critic, started the blog some time ago but recently received some mainstream press coverage in the form of a Washington Post video on her work and prominent inclusion in an article about McMansions.  Her blog included pictures of McMansions with annotations of what made the house ugly in her eyes, pointing out the various common flaws inherent to McMansions.

Shortly after the video and article started making the rounds on social media, Zillow sent the following letter to Ms. Wagner:

Ms. Wagner is currently in the process of moving her website from Tumblr, the original host, to a new host which may be why the link isn’t working if you’re reading this shortly after I wrote it.  And the good news is that Ms. Wagner was able to obtain legal representation in this fight (the EFF), because this is a fight worth having.  While we’ve seen instances of social media platforms wrongly accused of overreaching with their terms, here is an example of a platform wrongly asserting rights that don’t belong to it.

Leaving aside the fair use argument that Ms. Wagner is providing commentary and criticism on these photos, which this Mashable article effectively summarizes, the biggest concern I have is Zillow’s letter itself and how it interprets its own terms of service.

Zillow’s biggest complaint is that Ms. Wagner admits to gathering these images from Zillow, a well-known website and app that provides house listings.  But Zillow does not own the copyright to these images–they expressly said so in their letter as they attempt to address any potential fair use argument (although that’s not their issue to address because they don’t own the photos).

Instead, Zillow is alleging that Ms. Wagner’s act of copying photos that are on the Zillow website violated their terms.  That’s what the case, if there is a case (and I highly doubt Zillow will continue to pursue this through judgment), is all about and it all depends on some rather broad readings of their own terms.

Here, for example, is one section of Zillow’s terms they claim Ms. Wagner violated:

You agree otherwise not to reproduce, modify, distribute, display or otherwise provide access to, create derivative works from, decompile, disassemble or reverse engineer any portion of the Services.

These clauses are common on social media platforms and refer to the platform itself.  The buttons, the interactive features, all of the bits and pieces that make a functional platform are certainly right and proper for a platform to protect.  But when you create a platform that hosts content, the content you’re hosting doesn’t become a part of your platform.  This concept is what has allowed platforms to benefit from Safe Harbor provisions in copyright laws, for example–they conceptually draw barriers between a platform and the content so the platform doesn’t become an infringer.

It’s somewhat bizarre to see a platform destroy the barrier between content and functionality in one of its arguments.  For Zillow to argue that the pictures they host are now part of their services is to ignore the ownership and proper use of the content itself, not to mention opening themselves to much greater exposure.  If Zillow uses this clause to assert intellectual property rights in images posted by users, does that mean they are also subject to lawsuits for infringing content posted by their users?  What if I copy a famous series of house interiors published in Architectural Digest and post those as a listing on Zillow?  Should the rightful owner of those photos sue me or Zillow?

Zillow also references a provision in their terms that prevent the copying of images in their listings.  They didn’t cite the specific language, but let me do so:

Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services.

Wow, that’s a mouthful, right?  This is exactly the kind of term that makes most people’s eyes gloss over.

That clause has a lot of prohibitions in there, and yes it does include a prohibition about copying the images available, but there are two kinds of problems with this term.  First, it’s a backdoor attempt to assert copyright protection without owning the copyright.  Copyright holders get to decide when an image can be copied, not one of their customers.  Copyright law allows the owner of the photographer to restrict how an image can be used and here Zillow is attempting to take those rights without informing the copyright holder.  Quite to the contrary, when you upload photos to Zillow you give the platform a broad license to use the pictures, but you aren’t assigning to Zillow your rights to enforce or protect that photograph.

So if Zillow doesn’t have the right to prevent this copying in copyright law, does it have some kind of right to restrict how the copying is done on its own website?  That’s possible, except that a user like Ms. Wagner who copies a photo from Zillow doesn’t use Zillow to make the copy.  She uses her web browser or other software to copy the image that was already transmitted to her computer.  Zillow is either taking over the rights of a copyright holder or is attempting to insert themselves into the terms of third party software they didn’t write.  Either way, this is a stretch.  This clause is designed to prevent someone from scraping Zillow’s website to set up a competing product–and that kind of activity shouldn’t be allowed but it’s a far cry from what Ms. Wagner was doing.

Also, taking this clause as Zillow interprets it against Ms. Wagner, Zillow would also have a potential case against everyone who has ever posted a link to a Zillow listing on Facebook or Twitter or other social media platform, as those links frequently pull associated images.  Does Zillow really want to go down that road?

Beyond the technical arguments presented in Zillow’s second reason why Ms. Wagner violated their terms, they also present a third reason that connects with the second.  This third reason is that Ms. Wagner’s activity harms Zillow or its suppliers.  And yes, they absolutely have that term:

You agree not to use the Services in any way that is unlawful, or harms Zillow Group, its service providers, suppliers or any other user.

But the spirit of Zillow’s argument here isn’t the kind that most courts will find persuasive.   The activity of viewing house listings and commenting on them happens, oh, EVERY DAY on Zillow.  And off Zillow.  Heck, without that kind of activity being permitted then the TV show House Hunters wouldn’t exist at all and I know several people who don’t want to live in a world without House Hunters.  Posts liks Ms. Wagner’s blog don’t harm Zillow or the listing themselves.  Do they think someone is interested in buying a multi-million dollar house but not if someone posted a snarky comment about it online?

It seems like Zillow was deeply upset that someone was using their website for anything but buying a house, and while I can understand that I can’t exactly sympathize.  So long as a social media activity isn’t actually harming you, you leave it alone.  Attempting to stifle the conversation only results in the Streisand Effect, as we’re seeing in full effect right now.  Ms. Wagner’s blog had some interest among architecture fans and some mainstream interest after the WaPo article.

But that interest is NOTHING like the interest her blog is going to have now that Zillow has sent its nasty gram.  If Zillow was truly interested in shutting down this kind of commentary based on their overly broad reading of their own terms, they have horribly miscalculated.

Why A Twitter Block May Violate The First Amendment

The New York Times article covering the letter written by the Knight First Amendment Institute at Columbia University lays out a fascinating case for how the President’s blocking of Twitter users may violate the First Amendment.

The vast majority of times someone claims their First Amendment rights were violated on social media it is correctly pointed out that the First Amendment doesn’t usually apply.  Platforms like Facebook and Twitter and others aren’t subjected to the same limitations as the government–the First Amendment covers government, not private, action.  We’ve seen instances where Facebook removes posts or pictures and someone cries “First Amendment!” and someone else (maybe me) says “Nope.”  There are some interesting theories on why the First Amendment might apply to broad platforms such as Facebook.  But for now the more mainstream view is that the First Amendment doesn’t apply to platforms.

But the First Amendment does apply to government, including the President.  And as the letter spells out, the President’s decision to block certain users on Twitter could face legal challenges.  This is because blocking a user on Twitter does more than just hide that user’s tweets–it also stops that user from seeing the blocking account’s tweets or searching for them.

If blocking an account on Twitter only allowed blocker to not see the content, the analysis might be simpler.  The President can, for example, cancel his subscription to a newspaper he doesn’t like.  But blocking a user does more than that–it actually prevents that user from seeing the content in the first place.

Granted, there are workarounds.  You can create another Twitter account.  You can log out of your existing account on Twitter and just use a web browser to see public (like the President’s) posts.  But that kind of analysis doesn’t defeat the initial issue of government censorship.  If the government stops one person from speaking, does it matter that others can say the same thing?  Yes, the message gets out, but that one person has had their rights violated.

This is a novel approach to a common social media function, no doubt due to the new and often tumultuous political/social media world we live in today.  Will it force the President to unblock accounts?  Will it compel Twitter to create a new function that silences tweets without blocking the user?  Bear in mind that back in 2013, Twitter changed the block feature to allow blocked users to see posts from people who blocked them.  After public outcry, largely from people who claimed they blocked users for harassment and didn’t want their harassers to continue to see their content, Twitter quickly reversed that change.

Will this latest issue force a politician or a platform to change?  Stay tuned.

Breaking Down The FTC’s 91 Letters About Social Media Endorsers

The FTC showed that they were taking social media endorsements seriously when they sent a series of 91 letters warning brands and endorsers alike about the need for disclosures.  45 letters were sent to brands and the remaining 46 letters were sent to the individual endorsers who posted on Instagram.  The sheer number of warning letters, 91!, coupled with the FTC showing the form letter they will use for future violations signals this issue will likely come up again for brands and organizations who aren’t following the Endorsement Guides.

The National Law Journal submitted a Freedom of Information Act request to obtain copies of all the letters and they were successful.  I read through all 91 letters to see if there were any interesting tidbits and I’ve summarized the results so you don’t have to do the same.  Enjoy!

Product categories

Four main categories make up the majority of the 45 warning letters, with some significant overlap between some of those categories.  I broke down the products into the following categories and distinguished between them as follows:

• Beauty – 14 letters.  Products that are marketed towards changing your appearance without some associated health benefit (which would put it in the Health category).  Admittedly, some of the products are difficult to classify between Beauty and Health.  Cosmetic goods like eyeliner fall neatly into a Beauty category, but what about a product that claims to give your body the vitamins it needs specifically so your hair doesn’t break in the winter?  I erred on the side of any health-related claim, no matter if it has clinical support or not, went into Health.  So these 14 letters, still the most of any category, are only products that make no health-related claims.
• Fashion – 10 letters.  Clothes, shoes, and accessories.  Also includes subscription boxes that primarily have products in this category.
• Health – 9 letters.  Products whose primary purpose is to impact your health or who make some kind of health-related claim.  Includes external health products (blister bandages), internal health (vitamins), or items that could also be considered Beauty products but are using some kind of health claim (Flat Belly Tea and Flat Tummy Tea, both have a primary Beauty purpose but use marketing around giving you more energy…I’m not making a judgment on the veracity of those claims, just how to categorize them).
• Food – 9 letters.  Food and beverage products including subscription boxes with food products.  I also included alcohol in this category–not because I consider them food but because they are consumable goods most similar to food.  If you want to break it out then there was a single vodka product in the 45.
• Gadgets – 1 letter.  There was a single gadget product (a hoverboard) that didn’t fit into the other categories and seemed different enough from Toys.
• Toys – 1 letter.  There was a single toy (My Little Pony) that received a letter.
• Retail – 1 letter.  There was a single letter to Cabela’s, an outdoor/hunting/fishing focused retailer.  The picture featured a celebrity in front of dozens of fishing poles, none of which are easily identifiable as to brand, but beneath a large sign showing the store was Cabela’s.

What to take from these data: Certainly if your brand operates in one of the categories then the FTC has shown it is potentially looking at your endorsements.  But the intentional inclusion of three categories with just a single letter is, I think, an obvious shot across the bow warning everyone that any endorsement may be scrutinized by the FTC.

Endorser engagement

To look at engagement I only looked at the number of likes or hearts (since all the posts were on Instagram) that the posts received by the time the FTC printed them to include in the letters.  While posts also received comments, those are both a more substantive form of engagement that could require further classification and, frankly, I don’t have that kind of time.  But more importantly, Instagram posts prominently show the number of Likes/Hearts a post receives while the callout for the number of comments is both lower, smaller, and in a more subtle font color than the simple engagement count.

Individually, there was a large range of endorser engagement for the posts targeted by the FTC.  The highest single engagement in a post was a video that was viewed 1.4 million times (videos on Instagram have their views displayed most prominently, Likes/Hearts are buried lower in the description for videos than for pictures).  The highest non-video engagement belonged to Jennifer Lopez for her post about Beluga Vodka (631,000).  The lowest engagement on a targeted post Belonged to Farrah Abraham for her post about TeeSpring, a t-shirt printing company (1,550).  This shows the FTC was considering a broad range of posts in terms of how effective they were in engaging with customers.  Overall, the numbers were considerable at the category level (note that some letters included multiple posts which were used for the average calculation rather than just the number of letters received):

• Beauty Total Engagement: 2,280,364.  Average Engagement: 142,523.  If you removed the video that received 1.4 million views from this calculation (the only video post in all the FTC letters) then the total engagement drops to 880,364 and the average drops to 58,691–those numbers would significantly drop the Beauty category in these rankings.
• Fashion Total Engagement: 1,844,686.  Average Engagement: 141,899.
• Food Total Engagement: 1,656,756.  Average Engagement: 165,676.
• Toys Total Engagment: 501,000.  Average Engagement: 501,000.
• Health Total Engagement: 170,791.  Average Engagement: 17,079.
• Retail Total Engagement: 85,800.  Average Engagement: 85,800.
• Gadgets Total Engagement: 28,400.  Average Engagement: 28,400.

I chose to rank the product categories above in order of total engagement.  If they were ranked by average engagement then Toys would have easily led the pack.  I’m not sure if that’s the subject matter (My Little Pony is popular, after all) or the category itself.  The individual who endorsed My Little Pony, Vanessa Hudgens, is one of the few who received a warning from the FTC for multiple posts–her other endorsement for Graze Snacks only gained 269,000 Likes/Hearts, so there is something to be said for My Little Pony’s draw.

What to take from these data: The difference between the number of letters sent to brand categories versus the total and average engagement received shows that the FTC is looking at a wide variety of effectiveness when it comes to Endorsement Guideline enforcement.  Using high-profile endorsers or a series of less well-known endorsers can equally draw the FTC’s attention.  Bottom line: if your brand is considering engaging an endorser than you are probably hoping for more engagement than the minimally engaged post in the FTC’s letters (1,550); meaning you are potentially in the crosshairs.

Attempted Disclosures

The vast majority of posts the FTC took issue with made no attempt whatsoever to disclose a relationship between the endorser and the brand.  Of the 45 brands that received complaints, only 11 of them had some attempt to disclose that relationship, yet none of them were sufficient to avoid receiving the FTC letter.  The FTC has not expressly blessed any form of disclosure, the closest they have come is saying that starting a post with “#Ad:” may be sufficient.

The FTC’s form letter, customized for each violation, calls out that disclosures need to be “clear” and “conspicuous” (FTC quotes, not mine).  The FTC says this standard is met by making the disclosure unambiguous and it should stand out.  Since social media platforms such as Instagram don’t allow for text formatting, the ability for a disclosure to stand out largely depends on its placement and the context of the entire post.  That became one of many contextual elements called out by the FTC.  In a few instances noted below, the FTC added to the form letter to address attempted disclosures as inadequate.

Examples of inadequate disclosures:

• “Thanks…”  Five of the complained about posts did contain some form of thanking the brand.  The FTC called these out as being inadequate since a satisfied customer might equally thank a brand–just a thank you to the brand did not communicate that the endorser was being paid in money or products in exchange for the post.  The FTC also noted no difference between text that thanked the brand by tagging them or just by using their name.
• Disclosure outside visible space.  Every letter sent by the FTC mentioned that a consumer shouldn’t have to click the “More…” link to read text that couldn’t initially be loaded in order to see a disclosure.  One example violation, Shea Moisture, had so much text that the screenshot couldn’t capture all of the text–it is unknown if that post had any disclosures by the end of the text.  The standard text the FTC put in their letter mentions the first three lines of an Instagram post being visible for mobile users, strongly suggesting that’s where the FTC would like to see those disclosures.
• “Partner.”  In two of the Instagram posts, the term #Partner (or a brand specific #fffpartner) were used in a post.  The FTC said that this hashtag is insufficient to convey that the post was sponsored.  The FTC recommended the hashtag #Compeed_Partner (that’s how they spelled it, so I think they meant #Comped_Partner although it’s interesting to note the FTC thinks “Comped” is sufficient to communicate “Compensated”) as one “more effective” option (note they did not explicitly say it would be enough, just better than what was done).  In the example of #fffpartner, the FTC suggested that “FabFitFunPartner” would be “clearer” (bringing up the same caveat as with the “more effective” option).  It is also interesting that the FTC lists a hashtag with a brand name and partner as a potential option even though that doesn’t include a specific call-out about pay/compensation.
• Multiple hashtags.  The FTC also called out when disclosures are made surrounded by other hashtags or tags.  One example post, by Scott Disick for Pearly Whites (teeth whiteners), ended a paragraph of text accompanying his photo with the URL to the product’s website, the hashtag #nosensitivity, the disclosure hashtag #ad, and ending with another tag of the sponsoring brand’s Instagram account.  The FTC noted that the attempted disclosure here may be obscured by putting it at the end of the text and in the middle of multiple hashtags and mentions.
• #sp.  This abbreviation for “sponsored” is likely not to be understood by consumers according to the FTC.
• Employment and ownership.  While being paid for an endorsement is an obvious material connection to the sponsor thereby requiring a disclosure under the Endorsement Guidelines, other material relationships can exist without being explicitly paid for.  One such material connection is if you are the owner of the brand, as the FTC pointed out in their letter concerning Sean Combs’ AQUAhydrate post, a bottled water company in which Mr. Combs is a part owner.  With other FTC actions addressing employee disclosures in social media posts (the Playstation Vita case), it is clear that the FTC considers employment and ownership worth of disclosing in posts about that brand.
• “My friend…”  Although not expressly called out in a letter customization, one post in the batch attempted to reference the sponsoring brand as being a friend of the endorser.  This was insufficient as a disclosure.

What to take from this: The FTC has still never provided a clear way to disclose an endorsement. They have, instead, taken shots at attempts to disclose and have hinted at various techniques that might be more effective at disclosing a relationship, but nothing so concrete as “If you say X then you have met your obligations under the Endorsement Guidelines.”  These letters still don’t get us to a place where brands know exactly what to do, but we’re getting closer by knowing what methods are not sufficient.  If your disclosure program isn’t exceeding these complained-about tactics listed above then you need to up your disclosure game.

Perceived Endorsements

One post in the batch of letters caught my attention in the list.  The FTC sent letters to both the Dunkin’ Brands Group (owner of Dunkin’ Donuts) and Heidi Klum over the following post (poor quality because grabbed from the PDF):

I thought the inclusion of this post was a bit strange because I wasn’t sure if it was an actual endorsement.  Yes, Ms. Klum is sitting behind a very obvious cup showing the Dunkin’ Donuts marks.  But she is doing so because the picture was taken on the set of America’s Got Talent (AGT), a talent competition show with which I am familiar mostly because my 11-year-old son loves it.  Dunkin’ Donuts sponsors the cups that sit on the judges’ table during episodes–in previous years the cups have been sponsored by other brands.

While it is entirely possible that Dunkin’ Donuts, in addition to whatever deal they made with the AGT producers for cup branding, also made a deal with Ms. Klum for her to post this picture.  It is also possible that Ms. Klum, in the middle of doing a job that she has posted behind the scenes photos from in the past, just did another picture and took advantage of the fact that most fans of the shows would recognize the cup and know that she was on set (which can also be made out in the background, although not easily).  The text accompanying this original post, “Guess what I am doing today,” makes no mention of the Dunkin’ brand or even something tangentially related to the beverage itself.

Ms. Klum responded to the FTC letter by taking down the original picture and posting this cropped version with a new, telling caption:

“This is NOT a sponsored Dunkin Donut post … and I did NOT get paid for this!!!” You can tell she’s serious because it has three exclamation points.

What to take from this: When it comes to social media influencers and celebrities, any inclusion of a brand could raise the suspicion of a paid-for endorsement.  There’s little you can do from the brand perspective to prevent these kinds of posts (in fact, you’re not so secretly hoping you get them) but to avoid upsetting the FTC it would be an excellent idea to have a strong disclosure program for the endorsements your brand does pay for.  Then when the rare unpaid, innocent endorsement comes along you can point to your existing program as support for your claim that this was not the kind of post that requires a disclosure.

So You Want To See A Social Media Law Final? (2017 Edition)

It’s that special time of year again when I have just submitted the final grades for my Law & Social Media class at the University of Texas School of Law.  Hard to believe that I’ve been teaching it for five years now but every year brings something new to the area.  This year’s exam was inspired by some recent events, the Gabbing Geek podcast, and a few too many detective movies (well, really, all the Dresden Files books).  How would you have done?

Question One

She keeps looking out the dirty windows to make sure her Tesla isn’t being broken into. Your office is in that part of town, a part that she normally won’t be caught dead in. But here she is now.

“Mind if I smoke?” she asks, tapping on a silver cigarette holder that you thought only existed in black and white hard-boiled detective films.

“Yeah.” You toss your thumb to point at the giant “NO SMOKING” sign on the wall behind you. Right next to the “Social Media Fixer, Inc.” sign you used to hang on the outside door but too many people kept marking it up.

“They said you could help me,” she says in disbelief. Looking around the threadbare office, she looks like she’s been the victim of an online prank.

“Maybe,” you tell her. “Don’t judge me by the offices. I’m a big deal on Instagram. That was a joke.” You offer the last part because you’re not sure if she’s ever heard a joke, judging on the look she’s giving you. Or maybe you’re just telling it wrong.

“Fine,” she settles back into her chair. An impressive feat because you know how uncomfortable that chair feels. “I run an incredibly successful social media platform called Modular Academic Dreams Exist, Uniquely Personal. But everyone just calls it MADE-UP. We have hundreds of millions of users around the world. We allow them to share content with each other, interact with their friends’ posts, and even schedule events.”

“So, like Facebook,” you respond.

“Yes, but MADE-UP. Anyway, when we first launched we had one sentence for our Terms of Use: ‘Be cool.’ But now we realize that we need a more…robust document.”

“Might help,” you offer.

“Right. But I’m really not sure where to start. And I need to convince my Board of Directors to make the change. Could you give me some advice? Maybe start with three of the most important parts of the Terms of Use we should create, and some kind of strategy for rolling out those changes? Something I can take back to my Board because…” she glances out the window, “I doubt they’ll want to come here.”

“No problem,” you tell her. She leaves. You crack your knuckles and start typing.

Question Two

Six months later, the MADE-UP CEO is back in the uncomfortable chair. She left the Tesla at home this time, electing to take a taxi since Uber and Lyft still haven’t come back to this part of town. She looks about as comfortable as last time but just the fact that she’s back means you gave her good advice and she knows it.“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve

“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve really helped us out of some problems and our outside counsel say that without those Terms we would’ve been in a lot of trouble.” You try not to look too hurt to discover she’s hired other lawyers.

“But the one argument our other lawyers” ouch “keep facing is when users claim they never saw the new Terms. So we want to make a giant, splashy campaign all around the Terms. We don’t just want people to see them—we want them to WANT to see them!

“So I came up with a plan and everyone tells me it’s brilliant,” she smiles. Probably because you’re the CEO, I think, but wisely don’t say. She continues, “I want you to give me some honest feedback. It’s a two part plan.

“First, I want to create a graphic novel out of our Terms of Use. We’ll hire artists to create pages that copy other comic books, only instead of people talking or thinking or whatever they do in comic books, it’ll be our Terms instead. Since the pages will look like the most famous comic book heroes everyone will want to read it. We’ll use all the best heroes: Batman, Wonder Woman, Superman, Spider-Man, Wolverine, Madame Xanadu—the true icons of the industry!

“And then second, we’ll do something similar but with video. I know some digital artists who say they can take video clips from the hottest movies and TV shows and then alter the characters’ lips to show them reading our Terms. We’ll hire some celebrity impersonators to do the characters voices so it’ll look like these people in The Walking Dead or The Magicians or Better Call Saul are reading our Terms!”

You grimace. She notices.

“What?” she asks. “Tell me what’s wrong with that plan. Or tell me what works. Just tell me!”

You take a deep breath and tell her what you’ve been thinking.

Question Three

Another six months, another taxi drops off the MADE-UP CEO at your doorstep. Well, your landlord’s doorstep. She eyes the chair warily before sitting back down in it. You’ve been meaning to get a more comfortable chair. But you haven’t.

“I should have come to you sooner,” she starts. “Especially since you’ve given me such great advice before. But I’ve learned my lesson. We fired our General Counsel over this mess—help us fix this problem and the job is yours. I’m guessing it pays…” she adjusts herself in the uncomfortable chair, “Slightly more than your current wages.

“Our marketing team started working with the most influential users on our platform. People with tens of thousands of followers. We would connect those users with brands wanting to promote their products. It was a win-win situation, the marketing team told me.”

“Marketers,” you nod knowingly.

“Right. So we had this program. Brands pay us a few thousand dollars, we pass most of that money along to the users, and the users would post pictures and videos of themselves using the products. And we would help promote that content by giving it preferential viewing for anyone on our MADE-UP platform.

“About a dozen of the brands and the influential users in the program got some letter from the FTC. And now those brands are upset with us because we never told them about some need to disclose? Is that really a thing? I guess it is.

“Now we need to change our program so that our brand partners and influential users are following the disclosure rules. I need you to draft some kind of rules or communications or training or something so that I can make everyone understand what they need to do.

“Tell me what to do for our brands, for our users, and for my marketing department. Fix this and you’ll be our new General Counsel.”

You stand up and remove the “Social Media Fixer, Inc.” sign from the wall. You won’t be needing it anymore after you give her your advice.

Facebook’s Responsibilities As A Content Platform

It is time for Facebook to look itself in the mirror and decide who it wants to be when it grows up.

In the wake of the 2016 US elections there are volumes of conversations taking place over our possible future, the ongoing tension and conflicts, and the root causes of the election.  The causes are numerous and not simple to categorize–your perception of the election’s results may make you view one cause as a positive or a negative, for example.  But the causes are out there and, if they did not have the impact they desired, then the results of the election compel those causes to re-examine their purpose and impact.  Facebook is one of them.

The New York Times ran an excellent article about Facebook’s possible impact and how different groups within the organization are thinking about the issue.  If you’re unable to read that article because you don’t have a subscription to the New York Times, I’d suggest you subscribe.  The article also points out the conflicting viewpoints even within Facebook, as Mark Zuckerberg has publicly posted that he believes Facebook’s involvement is minimal.  Unfortunately, I believe Mr Zuckerberg’s comments have missed the forest for the fake tree.

Mr Zuckerberg’s post talks about the potential impact of fake stories that circulated on Facebook.  He believes those stories had no impact, but that also once you go down the road of trying to mark stories as true or fake you get into dangerous territory.  Even mainstream reports may omit details or sometimes get stories wrong.  That is entirely valid criticism and it is entirely hogwash.

Certainly you can draw the line at marking what is a real or fake story and you can argue about moving that line.  Right now, no such line exists.  That allows completely fabricated stories to gain widespread circulation perpetuating their untruths.  Once that bad information has taken hold it is almost impossible to eliminate their impact, as Facebook well knows with the constant resurgence of Facebook untruths (Facebook is going to start charging you, if you post something then you keep control of your content, they now own all of your photos, etc.).  Even if another true story circulates right after the original fake story you will still have a large number of people who think the fake story may have had a detail wrong but the overall theme is true.  And of course that has an impact.

Facebook and other social media sites have become widely popular for lowering the barriers of distributing content.  We can now connect with people and share information with simplicity and ease.  That has powerful positive effects but it also has some drawbacks.  The widespread dissemination of fake news is one drawback and that can be addressed by Facebook if it wanted to do so.

But there’s a bigger picture here, one that I fear Facebook is missing by only talking about fake news.  Because the true impact of Facebook and all of social media isn’t just about fake news but rather that these platforms designed to increase communications between people may be doing the opposite.  There is a wealth of articles and research about how the same technology that gives us access to so much content may also force us into a bubble of only content that we agree with.  The most recent iteration is how this may have impacted the election, such as this New York magazine article points out, but this is an older concept as this fantastic 2011 TED talk points out (carve out 9 minutes to watch it if you can).

 

This is where Facebook can best start looking in the mirror.  Because Facebook doesn’t just set up bubbles for its users, it is a bubble generating machine.

Facebook stays successful by making sure you keep coming back.  It wants to give you content you find compelling and enough new material so you visit the site many times a day.  It also can’t give you too much content or you’ll get frustrated and leave.  And it also can’t give you content that will make you never come back–whether because you found it offensive or distasteful or any number of reasons.

This is the entire reason for Facebook’s Edgerank algorithm and why you sometimes see articles complaining how Facebook users don’t see all their friends’ posts.  Facebook constantly tweaks and plays with this program to maximize your time on Facebook.  More time on Facebook means you keep coming back and you’ll see more ads that they can sell to fund the platform.  That makes sense from a platform and business perspective.

But as a content and media company, Facebook also needs to ask if maximizing user bubbles is truly in the best interests.  Compare this to a snack food company that discovers if they add more sugar then people like the snacks more, they consume it more, they buy more of it.  That makes sense from a business perspective and yet it may not be the best possible outcome.

Facebook and others need to look themselves in the mirror and decide who they want to be.  They can take the all business approach of doing what is the best for profits or they can decide there is a greater responsibility at play.  I don’t know how to burst those bubbles if Facebook chooses to do so.  I do know that Facebook has some of the most brilliant content engineers, data scientists, and platform designers on the planet.  If they want to address this problem, they can start coming up with solutions.  Because bursting those bubbles may be vital in helping to bring people together, to help us increase understanding of problems and come up with solutions.  Popping those bubbles may help heal the polarizing partisanship that has only grown over the past years.

Those bubbles may be nice to live in, but they may choke us in isolation.  It’s time to figure out whether they’re worth keeping.

Either way, Facebook needs to look at their role in defining public conversations and make a decision.  Sticking their head in the sand and pointing at the other causes is irresponsible.  No, Facebook isn’t entirely to blame.  It also is not blameless.  Where it goes from there is entirely within their control.

The EU Just Expanded Copyright Infringement In A Really Confusing Way

It’s all about the links.

Nudity + Bad Content Laws = Confusion.   While not as popular as the equation E=MC², N+BCL=C is a useful equation for describing a recent decision out of the European Union dealing with copyright and social media.

Copyright and social media are frenemies at best.  On the friend side, social media has given authors powerful ways of reaching audiences that were never previously possible.  Many people make decent livings based on creating cartoons, movies, or audio files that are distributed via social media.  On the enemy side, social media has wrecked havoc with authors’ abilities to control their creative works–the entire purpose of copyright.  Find any image on the Internet, right click on it, and save the image.  Odds are you just infringed on someone’s copyright.  But whose copyright?  And did you actually infringe it or is the author fine with you saving the image?  What if you re-use that image on a Facebook post or blog article?

There are numerous issues with the (lack of) progression in our copyright laws and the rapid development of technology which easily infringes copyrights.  One set of those issues deals with the ability to link to other content on social media.  You may post a link on a blog post or on Facebook that can take a reader from your content directly to other content.  What happens when the content you link violates someone’s copyright?  The issue just became more complicated because of a recent decision by the Court of Justice of the European Union, the top appellate court for the EU.  To understand the implications of that case, let’s dive into the details.

First, the good news: the case deals with nudity as I mentioned at the top.  That’s usually good to keep people interested.  In this case, the nudity at question were naked photos of TV personality Britt Dekker which were taken for publication in the Dutch version of Playboy.  Eleven of those photos leaked prior to publication by being placed on a file hosting site.

GeenStijl (Dutch for “No Style”) is a website that posts stories about current events and scantily clad or naked women in varying ratios throughout the week.  The day that the photos were leaked online, GreenStijl received an email with a link to the photos.  Also on that day, Dutch Playboy, aware that the photos were online, attempted to take down the photos on the file-hosting site but also reached out to GeenStijl asking them not to post the photos.

GeenStijl did not respond to the request.  Instead, the next day, GeenStijl published an article that included one of the leaked photos.  They also included a link at the end of the article which directed users to the file-hosting site that had all of the photos.  Dutch Playboy again wrote GeenStijl asking the article to be taken down.  GeenStijl did not respond.  But the web site that hosted the eleven leaked photos did respond to Dutch Playboy’s request and the photos were removed from that site.

One week later, Dutch Playboy sent another letter to GeenStijl demanding their original article be taken down.  GeenStijl did not take down the original article, instead they published a new article talking about the legal dispute they now had with Dutch Playboy.  The end of this second article contained a new link to another website that had the leaked photos.  Dutch Playboy contacted the website hosting the leaked photos linked in the second article and that website also removed the leaked photos.

Ten days later, GeenStijl published another article with yet another link to a website hosting the leaked photos.  Users of the GeenStijl site filled the comments section of the article with other links to the leaked photos on various hosting services.

All three of these articles were published prior to the actual issue of Dutch Playboy for which the photos were commissioned.  Dutch Playboy brought a lawsuit against GeenStijl regarding these links that made their way through the court system before finally landing at the top appellate court.

Let’s get one thing clear: GeenStijl was a jerk in this case.  That’s not to say they were, at the time and under their understanding, breaking the law.  But they were definitely provoking a publication through their pattern of activities.  And that’s okay–cases dealing with content and speech are often filled with jerks who help bush the boundary and test the limits of the legal system so that the rest of us non-jerks benefit from a greater understanding.  But that may be important in understanding that the courts in this case may not have been inclined to help out a website acting like a jerk.  Unfortunately, their decision may have punished a jerk while also muddying the waters for all legitimate social media users.

By the time the case reached the highest court there was a set of three questions that all dealt with whether GeenStijl had “communicated to the public” (or what we in the US call “distribution” which is one of the protections afforded an author of copyrighted material) by virtue of posting links to protected content.  And here the court ultimately answered the questions with a rather convoluted statement (to be fair, it might be simpler in the original Dutch) which I will attempt to untangle.  By the way, it’s important to note the court didn’t decide the case–rather they were asked to answer some questions and now the answers will be used to resolve the case.  They said it will be hard for GeenStijl to overcome this test given the facts at hand, but another court will have to look at all the details.  Here’s what the court said:

• To determine if a link to protected content is a communication to the public you must first determine if the link was posted by an individual.
• If the link was posted by an individual, but they did not post the link for financial gain, and they had no reason to know the linked content was protected, then it is not a communication to the public
• If the link was posted by an individual for financial gain, or by a non-individual (such as a website), then there will be a presumption that the link was known to point to protected content
• This presumption of knowledge about the protected nature of the content can be rebutted

Like I said, this probably makes more sense in Dutch.  But for us English speakers, there are two really big problems for this kind of test to determine if a mere link to protected content is a legal violation.

Problem 1: The ruling sets up different tests depending on whether the links were made “with pursuit of financial gain.”

Copyright protections are supposed to protect authors so that we encourage people to become authors.  So it makes sense to stop people posting copyrighted content without the permission of the author because that could financially injure them.  If we are at all concerned about the next level of activity, other sites linking to the unauthorized posting of copyrighted content, then the motivation behind those links should be absolutely irrelevant.

The Court’s test here creates two different tests–one which applies to individuals who are posting links online but not for financial gain, other test for anyone posting for financial gain (which seems to include all websites or activity by more than one individual).  These tests shouldn’t be relevant if we’re concerned with protecting the author.

Consider this hypothetical.  I make a movie.  It’s a really good movie with time travel and robots and aliens and a hilarious road trip in a spaceship and then there’s a big fight with a giant space-Octopus.  I’m in the process of taking this movie to various festivals, maybe seeing if I can sell it to Netflix or some other distribution channel.  Someone working at one of the festivals takes my movie and makes a copy, then posting it on YouTube.  This person posted it on their own site and didn’t give it a descriptive title so nobody watches it.  Then a website stumbles across the YouTube movie and posts it on their website under Movie You Must Watch Of The Day.  A million people watch the movie and now all my interested distributors don’t want to talk to me because my movie is available for free.

At this point, I wouldn’t care one iota whether that website that posted the link is a commercial venture, newspaper, educational institution, or message forum.  Their motivation for posting the link is irrelevant–I have been damaged.  Granted, I’m also upset at the person who posted it in on YouTube in the first place, but if we are going to extend those protections to people who link to protected content why should we even consider their motivation?  Setting up a separate test for sites based on whether they pursue financial gain (because in this day and age more sites pursue a profit than actually achieve it) doesn’t make sense from the perspective of preserving the incentive for authors.

Problem 2: The court presumes that websites pursuing financial gain have magical knowledge

The court’s test says that a post made for commercial gain will be presumed to know that content they are linking to is authorized or unauthorized.  This presumption doesn’t make sense.  From the court’s perspective, such a site should know that content is protected and should therefore have better judgement in posting links because they will know if that linked content was authorized or not.

But here’s the thing: despite certain US Supreme Court decisions hinting otherwise there is no such thing as a corporation that can exercise judgment.  Corporations, websites, any organization is composed of people.  So if one person can’t be presumed to know whether any piece of content on the Internet is properly authorized, how would five people running a website have that breadth of knowledge?  Or even a hundred?  Or a thousand?  Certainly larger organizations with more resources might identify protected content and be able to ascertain if the posting was authorized, whether by virtue of more eyeballs seeing the content or being able to afford some tools to help it identify content, but none of those are perfect.  Trying to substitute the pursuit of profit with having enough resources to presume knowledge of content status just doesn’t make sense in our digital world.

US law on this issue is similar but has an important difference: a website could be liable for linking to unauthorized content if it knew the content was unauthorized but there is no presumption of that knowledge simply because the website is trying to make a profit.  That’s the key distinction.

Also, when the EU court made this a presumption that can be rebutted, they left open a huge loophole.  Let me give you a psychic prediction on approximately 100% of the cases involving this test moving forward: the website that posted the links will say they didn’t know the content was posted without authority in an attempt to rebut the presumption.  That’s 100%, plus or minus 0%.  And the only websites that won’t be able to make this argument will be the ones who, like in GeenStijl’s case, were sent an actual communication by the copyright owner that the content was posted without authorization.

If that’s the court’s intent then they should have just flipped the test.  Instead of presuming knowledge, make a copyright holder tell the website that posts links.  If that seems like too much to ask–because why should a copyright holder have to do the extra work of telling everyone not to violate their rights–that’s because it is too much to ask.  But that’s exactly what the test will ultimately end up doing.

Maybe the court just isn’t as psychic as I am.

 

 

How long this decision by the court is upheld remains to be seen.  Perhaps it proves so unusable at a practical level that it is refined or reversed within the next few years.  Perhaps courts try to cobble together a patchwork quilt of decisions that mostly follow this test but make it workable.  But as it exists right now there are serious problems applying this test to Facebook, Twitter, Google, or any site that hosts a blog (Hey WordPress, what’s up?).  And there are even bigger ramifications for those hosting platforms on trying to set up a process to handle this new test.  Right now, websites that host content are accustomed to having a process where copyright onwers can assert ownership and take down offending content.  Will that system need to be expanded to then impact other sites that link infringing works?  Will a failure to do so make these sites contributing to the unauthorized communications to the public, allowing an additional expansion of copyright protection?

The EU’s decision is too recent to see how it will play out, but keep your eyes peeled.  This could get ugly fast.  Although the court may have been swayed by not wanting to let GeenStijl get away with being a jerk, they may have inadvertently overcorrected the issue and caused more problems than they solved.

7 Legal Issues For Pokemon Go: Gotta Read Them All!

Pokemon Go has taken the planet by storm.  In its firstweek it surpassed Twitter for daily active users, it became the top grossing US iPhone app in just 13 hours (despite being a free to play game with optional purchases), and mobile users are spending more time on Pokemon Go than on Facebook.  Pokemon Go has become the most popular Android app for daily users, surpassing the previous leaders by nearly 300%.  And it did that in a span of days.

Not only have you likely heard of Pokemon Go, you’re also statistically likely to have played it if you have a mobile phone.  If you haven’t played there are plenty of guides out there (here’s a video I thought was a good intro) or you can just go to any public place where you see people looking at their phones and ask them.

Given the meteoric rise of Pokemon Go, it is only a matter of time before the game crosses over into doing promotions and marketing activity.  There are already reports that the game includes code to run a test promotion with McDonald’s in at least one Asian country.  With this many people and brands interested in the hot new game (and eventual platform), my friend and fellow social media lawyer Jim Dudukovich and I wanted to present the seven legal issues you should know around the game for now.  This isn’t specific legal advice, just us thinking about the intersection of new technology and the law.  And an excuse to play.

1. Pokemon Go isn’t a platform…yet

While Pokemon Go provides an intriguing mix of real world and virtual world entertainment, the interaction between players is currently very limited.  Players do not see other players while wandering their virtual map overlays on real world maps.  The only interaction with other players is in lures dropped by players and battling/training at Pokemon Gyms.

The swirling purple flowers are caused by lures dropped by players–you can see the lures dropped by other players but cannot see the players themselves.

This is all certain to change in the future.  The Pokemon Go terms discuss the ability to trade items with other players even though that functionality does not yet exist.  Trading items with other players will possibly come with the ability to communicate with them as well, or perhaps there will be the ability to chat with other members of your team (one of three alliances you join upon reaching level 5 in the game).

While Pokemon Go has currently inspired people to get together and communicate, it is neither required for the game nor supported by it yet.  So the game is not a social media platform…yet.  But given the rise of players and pop culture awareness, it is almost a certainty that the game will either evolve to become a platform or players will start to congregate around another platform in order to communicate.  This places the app more in the realm of just a game for now, but as it expands functionality and brands start to get involved there will be a number of common social media platform legal issues that emerge.  So stay tuned.  And level up in the meantime.

2. Sponsored content is coming

Where there’s a game, there’s an opportunity for brands to get involved (with varying levels of legality).  The model for Pokemon Go has yet to mature (or at least to be announced publicly), but the ways brands can get involved will likely include not only some “conventional” methods, but also some integrations that are possible only with augmented reality.

Going forward, we are likely to see “official” partnerships whereby businesses can become sponsored locations or some other formally identified type of destination with yet-to-be-determined perks (and costs).  In order to distinguish the haves from the have-nots, the benefits of paying for participation will need to really break through the clutter of the free-riders in order for businesses to invest (see #3 below).  One would assume that part of that bundle of rights would be co-promotional rights, whereby those partners can produce advertising materials featuring elements that only official partners can use.

And with augmented reality comes the ability for brands to buy virtual advertising space; clearly Niantic – should it opt to pursue this revenue stream – will need to be thoughtful so as not to chase away users by overly commercializing the user experience.  When users start having to walk around a virtual billboard in order to capture a Jigglypuff, they might begin to revolt.

3. But businesses are already cashing in

As things currently stand, some businesses are near Pokestops, which attract players to their locations to load up on Pokeballs and other virtual supplies and (hopefully) lead those players to buy something from the brick-and-mortar business; at the very least it breeds familiarity and exposure.  We’ve also seen businesses buying and dropping lures to attract players, as well as putting up social posts that play off of the game’s name, notoriety, characters, and imagery, including using #PokemonGo.  There are even online articles telling business how to take advantage of this claim, like this rather creative one from Shift Communications.

Some examples:

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

This Brookstone in the Houston Galleria invites players in with a discount.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go, although this has not been verified.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

From a legal standpoint this raises some interesting questions.  For instance, if businesses are leveraging the game to attract consumers, would Niantic not have a potential claim for false association/false endorsement?  One would think so, but since it’s already been over a week and we haven’t seen any claims, uhm, wait – how long until some form of laches or abandonment defense would attach?  But seriously – we don’t know if Niantic has any inclination to attempt to aggressively enforce its trademark rights – it’s making plenty of money from in-app purchases that are attributable to these uses and will likely make plenty more once it launches official branding opportunities.  In light of that, so long as the participation by unaffiliated businesses doesn’t interfere with Niantic’s business opportunities to sell official partnerships, and so long as those unofficial users don’t hold themselves out as official sponsors or otherwise engage in behavior that could dilute or undermine Niantic’s trademark rights, we probably won’t see widespread aggressive policing.

4. Does Pokemon Go create attractive nuisances or encourage trespass?

Pokemon Go is not the first geolocation game to exist, but it’s the first to breakout in such a significant way.  Having millions of people, many of them under the age of 18, wander around trying to collect virtual property brings some real property issues up in unique ways.  These next three topics are just a few of those interesting overlaps between the real and virtual world.

Adults know not to trespass on private property (or the law infers they do) but children are typically given a free pass when it comes to attractive nuisance law.  This is the body of law that covers situations when a child illegally enters private property and is injured while on that property.  While originally laws in this space required the nuisance itself (piles of lumber, swimming pools, trampolines) to cause the injury, the law has also broadened the landowner’s culpability to include conditions that the owner could foresee would cause injury.  Imagine a very visible giant pile of lumber that a child would want to climb and a ravine covered by grass on the way there–that’s covered.

The Pokemon Go terms do imagine this potential risk area.  There’s an entire Safe Play section which discusses avoiding physical harm while playing and obeying all laws including trespassing.  That doesn’t mean much to the 13 year old who won’t read these terms (and 99% of all other players), but it provides the developer with some protection around players being injured.  The terms do not shield property owners, who now may face a slightly greater risk of some injury on their property by players looking for Pokemon.  The game is designed to be played by walking around and the game informs players when Pokemon are nearby but not where they are–the only way to track them down is to try walking in different directions and seeing if they are closer to the Pokemon as indicated by the number of footprints near the Pokemon’s picture or outline.

Since Pokemon are placed randomly, it is possible the game could inadvertently provide clues that lead children onto dangerous property or near a dangerous condition.  These clues are left vague on purpose, to make it more of an exploration game, but that also can lead children onto private or dangerous property.  When the Pokemon finally appears you can click on its location in the map, but getting it to appear can be random.  The game also gives you visual clues of where Pokemon might be with rustling leaves–players chasing those leaves may not realize where they are going.

The game itself doesn’t intend this risky behavior, nor can it be prevented currently.  It’s also debatable if a landowner would be liable for a harmful condition when they did not create the attraction that drew a child onto the property in the first place.  If a landowner is already in a densely populated area and is concerned about children being injured, they probably have already taken action (on the condition itself, preventing access, posting signs).  If they are in a remote area it’s hard to imagine local Pokemon Go players entering their property as opposed to visiting areas of attraction (PokeStops which provide virtual items to players).  But landowners in the space between may want to be aware of this risk and if they were debating taking action in the past, perhaps now is a time to do so.

While it may be difficult to pin responsibility on Pokemon Go for an attractive nuisance or trespass, it certainly creates an environment where those actions may be more likely to take place.  So both players and landowners may want to consider the risks when playing.

5. Pokemon Go and the idea of appropriate play

Outside of the physical risks that players may be subjected to while hunting Pokemon, there is also a growing concern of whether playing the game is appropriate in certain locations.  Within the first week of the game’s launch a story circulated about the Holocaust Museum in Washington, DC asking people not to play the game in the museum.  Arlington National Cemetery also asked players to refrain from using the site as a playable location.  The sites said they would reach out to the game creator to see about excluding the sites from the game but so far there does not appear to be an easy way for property owners to exclude their land from the game.

The idea of whether a location is appropriate or not is not limited to large national sites, though.  Because Pokemon Go is based on work done for a previous geolocation game, Ingress, much of the previous game’s data are used for this new iteration.  And because Ingress was based on a storyline involving spiritual energy, many of the featured locations in the game can have a spiritual element such as churches or monuments.  Or take, for example, this PokeStop in Austin, Texas:

This happens to be the headstone for my wife’s great-grandmother Fania Kruger–a woman who immigrated to Texas when she was 15 and later became a well-known poet.  Is her headstone being a PokeStop a good or bad thing?  Is it a celebration of her life to have players intentionally seek out her final resting place and perhaps learn a bit of who she was or learn her name?  Or is it a desecration of a place of remembrance for her and the other families whose relatives are nearby?  While this may not present a direct legal issue, the reaction to a real world location with emotional interest becoming a game location can cause strong reactions.  And those reactions may turn into legal issues as cemeteries, museums, or other public spaces must now develop a position on Pokemon.

6. Are Pokemon Go players loitering?

Laws vary on the subject, but generally speaking most jurisdictions have laws that allow authorities to prevent people from hanging around with no apparent purpose.  Typically these laws were used to prevent gang activity or break up groups that might lead to trouble.  With small or large groups suddenly appearing in public places, wandering around while staring at their phones, authorities might be curious or concerned.  Within the first few days of the game being launched, a story appeared on Imgur of a white man searching for Pokemon in a park late at night only to encounter two fellow players, black men, and while the three of them talked the police were called about a suspected drug deal.  The story ended happily enough, with the policeman downloading the game and playing, but under scrutiny the original poster deleted the story.

It is true that Pokemon Go is drawing out populations that were previously playing games indoors.  While many people have long bemoaned the lack of America’s youth playing outdoors, society is also shocked and confused when exactly that happens.  While businesses seem to be getting in on the action, some even advertising if their stores are PokeStops or Pokemon Gyms (areas where Pokemon are trained and players battle for control of the location), some other locations may be less open to random strangers driving up or wandering around.  And authorities may be suspicious of large groups gathering at night.  Is it a gang fight or a Pokemon Go meet-up?

The actual definition of loitering may differ by jurisdiction, but it is generally defined as remaining in one place without apparent purpose.  Whether playing Pokemon Go provides that apparent purpose or not is debatable and may be up to the discretion of police officers depending on time and location.  Shopping malls or other private property that have posted No Loitering signs are possible more sensitive to this kind of activity, so players may want to consider the area before conducting extensive searches or meeting up with other players.

7. Are Pokemon Go players targets for criminals?

In the wake of the game’s popularity came another rash of articles suggesting that players were at risk of being targeted by criminals.  There was a report in St Louis of some teens who robbed players, possibly drawing them to their location by dropping a lure (virtual items which other players can see and increase your chances of finding Pokemon).  It’s hard to imagine this is an actual spike in crime though–or if so it is by some of the worst criminals imaginable.  Targeting Pokemon Go players seems far less lucrative than, say, staking out an ATM where people withdraw money.  On the flip side, using a remote PokeStop may yield less rewards but have less chance of getting caught.  Unless you’re in St Louis.

There’s also one story that made the rounds of a player who was stabbed while collecting Pokemon but elected not to go to the hospital so he could keep playing.  You can read the full account here but I thought the more interesting (and usually ignored) part of the story was how he was out at 1 am, saw another man wandering around, and immediately asked him if he was playing Pokemon.  This apparently triggered the man to attack the player with a knife.  So maybe the lesson here is to not wander around after midnight playing Pokemon, or not to assume some other person stumbling around in the dark is doing the same.  It may also be a lesson to the developers that hopefully they won’t create specific Pokemon that can only be found in urban centers, particularly near bars, in early morning hours.

More to come

Pokemon Go has certainly taken the country and world by storm but these are the very early days of the game.  Will it fizzle in the upcoming months, or will it continue to draw a healthy crowd and new functionality as time goes on?  We’ll keep our eyes peeled for any nearby rare Pokemon new legal issues around this game and let you know.

 

 

 

So You Want To See A Social Media Law Final? (2016 Edition)

Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.