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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.

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