Copyright, Ethics & Social Media: What the Connected

Lawyer Needs to Know

Raymond J. Dowd, Author – Copyright Litigation Handbook (West 2012-2013)Partner-Dunnington, Bartholow & Miller LLPNew York, NY

The Copyright Society of the USAMid-Winter Meeting 2013; Omni Hotel Downtown AustinSaturday, February 16, 2013

How is the “connected attorney” different from the traditional attorney?

Prior to the 1976 Copyright Act, the subject matter of copyright was narrow, intentional

After the 1976 Act, every work of authorship fell into the copyright matrix

And the World Wide Web made global publication instantaneous and unavoidable

You’re now a publisher…

Rupert Murdoch

And you are now an advertiser

You are a blogger

- You are publishing text, photos and audio on the World Wide Web

- You are taking screen shots, cutting, pasting, grabbing and borrowing

- You are not paying anyone- You are endorsing all of your friends- Everything is free, easy and cool- Except you can be sued for defamation- You can lose your clients and license- You can violate ethics rules- You can lose your privacy and be hunted down

You can be a girl and lose your job

You are an Austin TX party animal

You are a shameless self-promoter

You are a twit

You can count how much of a twit you are

Legal Birds

You can manage your profile

You can join the “in” crowd

You can be an “influencer” - join groups and republish to thousands of targeted individuals

You are an art collector – of other people’s art

The Google Art Project

Your own personal Art Project homepage with your own Galleries

Dead City III, Fritz Grunbaum’s Collection

Moving from Attorney to Advertiser/Publisher in the Matrix .. What do you need to know?

Society of Professional Journalists Code of Ethics• Seek Truth and Report It▫ Journalists should be honest, fair and courageous in

gathering, reporting and interpreting information.• Minimize harm▫ Ethical journalists treat sources, subjects and

colleagues as human beings deserving of respect.• Act Independently▫ Journalists should be free of obligation to any interest

other than the public’s right to know.• Be Accountable▫ Journalists are accountable to their readers, listeners,

viewers, and each other.

Farah v. Esquire Magazine, Inc., 863 F.Supp.2d 29 (D.D.C. 2012)- Esquire blog “parody” interview with “birther”

book author claiming that author withdrew book and refunded money after Obama published long-form birth certificate

- $100 million defamation/false light lawsuit- Qualified immunity by Anti-SLAPP suit –

advocacy on public interest issue- Satire on a matter of public concern not

defamation

Blogs: more play for untrue speech?

• while generally, “online speech stands on the same footing as other speech,” In re Anonymous Online Speakers, 661 Fed.Appx. 1168, 1173, No. 09–71265, 2011 WL 61635, at *2 (9th Cir. Jan. 7, 2011), blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact

Obsidian Fin. Group, LLC v. Cox, 812 F. Supp. 2d 1220, 1223 (D. Or. 2011)

FTC Publishes Final Guides Governing Endorsements, Testimonials http://www.ftc.gov/opa/2009/10/endortest.shtm

• The Federal Trade Commission today announced that it has approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.

… long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement.

Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.

Under FTC Guidelines

• Can you endorse anyone on LinkedIn?

If you are not a journalist

• Can you protect your sources?

In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 979-980, 365 U.S.App.D.C. 13, 28 - 29 (C.A.D.C.,\ 2005)

• .The Supreme Court went on to observe that “freedom of the press is a ‘fundamental personal right ... not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets .... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ ” Id. (quoting Lovell v. Griffin, 303 U.S. 444, 450, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938)). Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not?

Attorney Ethics: Publicity Regarding Civil Matters and Attorney/Client Privilege

• Should you publish information regarding a civil matter?

Know the Law: N.Y. Rule of Professional Conduct 3.6: Trial Publicitya) A lawyer who is participating in or has participated

in a criminal or civil matter shall not make anextrajudicial statement that the lawyer knows orreasonably should know will be disseminated bymeans of public communication and will have asubstantial likelihood of materially prejudicing anadjudicative proceeding in the matter.

b) [Subsection (b) sets forth a variety of specific types ofstatements which are likely to prejudice anadjudicative proceeding. Attorneys who arecontemplating making statements about a pendingcase should familiarize themselves with thissubsection.]

N.Y. Rule of Professional Conduct 3.6: Trial Publicity (Cont.)c) Provided that the statement complies with paragraph (a), a lawyer may

state the following without elaboration:• The claim, offense or defense and, except when prohibited by law, the

identity of the persons involved;• Information contained in a public record;• That an investigation of a matter is in progress;• The scheduling or result of any step in litigation;• A request for assistance in obtaining evidence and information necessary

thereto;• A warning of danger concerning the behavior of a person involved, when

there is reason to believe that there exists the likelihood of substantial harmto an individual or to the public interest; and

• In a criminal matter:o The identity, age, residence, occupation and family status of the accused;o If the accused has not been apprehended, information necessary to aid in

apprehension of that person;o The identity of investigating and arresting officers or agencies and the length of

the investigation; ando The fact, time and place of arrest, resistance, pursuit and use of weapons, and a

description of physical evidence seized, other than as contained only in aconfession, admission or statement.

Blogging 101 The Legacy of Jim Letten

When Assistant U.S. Attorney Sal Perricone had been commenting on www.nola.com , the New Orleans paper The Times-Picayune’s online affiliate site, it led to quite the scandal. And the eventual resignation of US Attorney Jim Letten.

The Litigation Privilege

Lawyers are absolutely immune from civil liability for statements or conduct that may have injured, offended, or otherwise damaged an opposing party during the litigation process. This protection, often referred to as the "litigation privilege” shields a litigator regardless of malice, bad faith, or ill will of any kind. See, e.g., Sinrod v. Stone, 20 A.D.3d 560, 561 (2d Dep’t, 2005) (“Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding”); Long v. Marubeni America Corp., 406 F.Supp.2d 285, 294-295 (S.D.N.Y., 2005) (litigation privilege extends to absolute privilege for out-of-court assertions, when made to interested parties, and that fairly reflect a party's in-court litigation position).

The Litigation Privilege (Cont.)

• The litigation privilege has been codified in New York as McKinney's Civil Rights Law § 74: “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published . . . .”

Exception to the Litigation Privilege

• The litigation privilege does not apply where there has been a deliberate institution of baseless litigation for the precise purpose of fabricating a reporting privilege. Williams v. Williams, 23 N.Y.2d 592, 599 (1969).

Attorney-Client Privilege Concerns• Confidential, attorney-client privileged information

is generally protected from discovery. However, theprivilege can be voluntarily waived by the holder ofthe privilege when the confidential information isdisclosed to third parties.

• Accidental or inadvertent disclosure is usually heldto be a complete waiver. See, e.g., UnderwaterStorage Underwater Storage Inc. v U.S. RubberCompany, 314 F.Supp. 546 (D.D.C. 1970).

Attorney- Client Privilege Concerns (Cont.)Implied privilege waiver has arisen in social media. In Lenz v. Universal Music Corp., 2010 WL 4789099 (N.D.Cal. 2010), an employee, via e-mails, a blog, and Internet chat sessions, disclosed information about her attorneys’ litigation strategy. Statements made in social media included a statement that her attorneys were “pretty well salivating over getting their teeth into UMG [the employer] again.” This statement waived the privilege with respect to why the lawsuit was commenced. Employee disclosed in a Gmail chat that her attorneys hoped that opinion would clarify a “cloudy” decision. This statement waived the privilege relating to the attorneys’ legal strategies.

Duty of Impartiality – Hearing OfficerStengle v. Office of Dispute Resolution, 631 F. Supp. 2d 564, 577 (M.D. Pa. 2009)

Regardless of whether Stengle's blog activity qualified as “advocacy,” her conduct in that regard had the potential to raise questions as to her impartiality and indeed did just that. Plaintiff acknowledges that two attorneys, […] stated that they intended to file formal recusal motions because they questioned Plaintiff's ability to be impartial in light of her blog entries. …While those attorneys never filed the contemplated motions, that fact does not alter the essential inference to be drawn from this factual array. Again, actual disruptiveness need not occur; ODR Defendants need only target potential disruptiveness. From these facts, one can readily infer that Plaintiff's blog had the potential to induce recusal motions from those who came before her in her hearing officer capacity. If such a motion were to be filed, either one of two things could happen. Plaintiff could recuse herself, or she could elect to deny the motion and hear the case to its conclusion. In either instance, governmental efficiency would be adversely affected.

Why Does Social Media Matter?

The Lesson

Social media and related technology provide a host of ways to disclose information to unintended audiences. Clients and attorneys should take care to protect the attorney-client privilege by ensuring that privileged information is not accidentally disclosed.

Corporate Information Posted on Blogs• Blogging or posting on to other

social networking sites about work-related information has cased a lot of uproar

How Can Twitter affect the Courtroom?

• Jurors tweeting about the trials they are a part of

• Posting photos of celebrities involved in cases

Social Media & Your LocationGeolocation

• Logging onto your Facebook, Twitter, FourSquare, Apps on smartphones all can help to pin-point your location

• Law enforcers around the country are using geolocationto track down criminals that are using social media during their crime sprees

Facebook & the courtroom

• “friending” opposing counsel or the judge

• Chatting about what is going on in trial

• Posting to Facebook or Twitter revealing evidence regarding character or credibility

Courtroom affects:

Discovery of Social Networking Sites: Private Accounts• SNS content is not shielded from discovery

simply because it is “locked” or “private”• Courts have held that a requesting party is not

entitled to access all non-relevant material on an SNS, but merely locking a profile from public access does not prevent discovery either.

Social Media is Discoverable• Social media is generally discoverable

• Include social media in document preservation demands and in document preservation client memos

• Social media websites are ESI and should be handled as such

• Various tools to collect, process, and review social media• Preserve chain of custody

Attorney Ethics and Social Media Discovery• Lester v. Allied Concrete Company

• Attorney fined over $500K for telling client to delete negative information from Facebook. Client independently sanctioned $180K for following attorney’s advice.

• Zimmerman v. Weis Markets• Anyone posting photos or information to a public site has no reasonable

expectation to privacy. Plaintiff ordered to provide log-in information and passwords.

• McMillen v. Hummingbird Speedway▫ Plaintiff ordered to turn over social media usernames and passwords.

Plaintiff claimed injury related to a car race. But Facebook page referenced attending another post-incident race.

▫ “unrealistic to expect that such disclosures would be considered confidential.”

Fair Use Analysis• “fair use of a copyrighted work … for purposes

such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, . . .

is not copyright infringement.”17 U.S.C. § 107.

Use of Copyrighted Materials: Fair Use Test• Purpose and character of the use, including

whether use is commercial or non-profit

• Nature of the copyrighted work

• Amount and substantiality of portion used in relation to copyrighted work as a whole

• The effect of the use upon the potential market for or value of the copyrighted work

Righthaven LLC v. Realty One Group, Inc., 2010 WL 4125413 (D. Nev. 2010)• A. Purpose and Character of the Use• The court finds that the purpose and character of Nelson's

blog is both commercial and educational in nature. His blog on the Las Vegas housing market is designed to provide important information to potential and current homeowners and provide recent developments in the industry as well as Nelson's opinion on the state of the market as whole. However, the underlying purpose of providing this information is to create business for himself as a duly licensed realtor operating in that market. Thus, although Nelson's blog gathers varied information and provides it to the public free of charge, the purpose of providing that information is commercial in nature. Therefore, the court finds that this factor weighs against the fair use of the copyrighted information

Righthaven LLC v. Realty One Group, Inc., 2010 WL 4125413 (D. Nev. 2010)B. Nature of the Work• The nature of the Work is split between factual news

reporting and reporter commentary. The portion copied by Nelson contains factual news reporting about a new federal housing program which supports Nelson's fair use of the copyrighted information. See e.g., Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir.2002) (re-publication of a video depicting a news report was a fair use because it was informational rather than creative).

Righthaven LLC v. Realty One Group, Inc., 2010 WL 4125413 (D. Nev. 2010)• C. Amount of Copyrighted Work Used• In his blog, Nelson reproduced only the first

eight sentences of a thirty sentence news article. The court finds that this use weighs in favor of a fair use of the copyrighted material. See e.g, CBS Broadcasting, Inc., 305 F.3d at 941 (copying only as much as necessary in a greater work to provide relevant factual information weighs in favor of fair use).

Righthaven LLC v. Realty One Group, Inc., 2010 WL 4125413 (D. Nev. 2010)• D. Effect on Potential Market for Copyrighted

Work• The court finds that Nelson's use of the copyrighted

material is likely to have little to no effect on the market for the copyrighted news article. Nelson's copied portion of the Work did not contain the author's commentary. As such, his use does not satisfy a reader's desire to view and read the article in its entirety the author's original commentary and thereby does not dilute the market for the copyrighted work. Additionally, Nelson directed readers of his blog to the full text of the Work. Therefore, Nelson's use supports a finding of fair use.

Copyright Litigation Handbook (West 2012-2013) by Raymond J. Dowd