- Social Media - Issues of Ownership and Control Chris Butts

CONFIDENTIAL: Attorney-Client Privilege Ownership of Social Media  Accounts and Content  Accounts:  Profile  user name; password; followers  Content:  Material “posted” to social network  A “tweet”, blog post, status update

CONFIDENTIAL: Attorney-Client Privilege Who owns the account? Social Media Account Social Media Network? Employer? User?

CONFIDENTIAL: Attorney-Client Privilege Networks Maintain Account Control… and ownership? Statement of Rights and Responsibilities: Control over use, access, termination, transfer belongs to network. Facebook Terms of Service: “All right, title, and interest in and to the Services [defined as a user’s ‘access to and use of the services and Twitter’s websites’] are and will remain the exclusive property of Twitter.” Twitter User Agreement: “We grant you a limited…right to access the Services…LinkedIn further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice...” Linked-In

CONFIDENTIAL: Attorney-Client Privilege Users’ rights in Account?  One view: rights amount to license  E.g., Twitter controls or owns:  User Accounts (part of website)  Right to use of Account (service offered by website)  And permits user access under certain terms

CONFIDENTIAL: Attorney-Client Privilege Employee rights vis-à-vis Employers  Recent cases suggest… in some situations, employers might assert control and/or ownership over social media accounts

CONFIDENTIAL: Attorney-Client Privilege PhoneDog v. Kravitz (N.D. Cal)  Kravitz worked for PhoneDog, tweeting (17,000 followers)  Kravitz leaves, changing name  Action: misappropriation of trade secrets, intentional interference with prospective economic advantage, and conversion  On motion to dismiss, ultimately all claims allowed  Dec 2012, case settles (Kravitz keeps account)  Question of account ownership still open

CONFIDENTIAL: Attorney-Client Privilege Practice Consideration If a social media account is a valuable asset, have a written agreement in place

CONFIDENTIAL: Attorney-Client Privilege Who owns the content? Social Media Content User? Social Media Network?

CONFIDENTIAL: Attorney-Client Privilege User Maintains Copyright… with license to network Statement of Rights and Responsibilities: “You own all of the content and information you pose on Facebook…you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content you post…This IP license ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” Facebook Terms of Service: “You retain your rights to any Content…By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license….” [CAN YOU COPYRIGHT A TWEET?] Twitter User Agreement: “You own the information you provide LinkedIn…you grant LinkedIn a…license…” Linked-In

CONFIDENTIAL: Attorney-Client Privilege Networks’ rights in content?  One view is that broad license results in de facto ownership  Consider: networks’ dominion over data access, ownership via control?

CONFIDENTIAL: Attorney-Client Privilege Facebook v. Power Ventures (N.D. Cal.)  Power.com enabled users to aggregate content from social network platforms  Power “scraped” website, rather than use API  Facebook concedes that it does not have proprietary rights in users’ content/information  Nonetheless, Power prevented from accessing information in manner not prescribed by Facebook terms of use.

CONFIDENTIAL: Attorney-Client Privilege Practice Considerations  Advise clients that rely or interact with social media content to ensure compliance with terms of access  Clients that generate valuable IP and publish via social media outlets should understand they may be relinquishing rights (or at least control)

CONFIDENTIAL: Attorney-Client Privilege THANK YOU