The Eighth Annual JTIP Symposium, sponsored by the Searle Center on Law, Regulation, and Economic Growth, took place on March 7th and 8th. The first Symposium fell right around the time that Facebook was launched, in early 2004. In the years since, online social networks have ballooned into a mainstream topic, and our perception and valuation of these platforms has evolved continually. To mark these developments, the Journal of Technology & Intellectual Property (JTIP) hosted a panel of social media experts, moderated by Professor Andrea M. Matwyshyn of The Wharton School of the University of Pennsylvania, to discuss distinct issues that have arisen directly from the social network boom. Along with identifying these issues, several of the panelists articulated how parties should navigate them. This article recounts some of the issue-advice pairs brought to the floor.
Issue #1: Who owns the user-generated content published to social media platforms?
Chris Butts, McDonnell Boehnen Hulbert & Berghoff LLP, brought to the audience’s attention the idea that employers might claim an ownership interest in the social media accounts of their employees. In PhoneDog v. Kravitz (N.D. Cal.), Kravitz, while employed by PhoneDog, started a Twitter account using @phonedog as his handle. Kravitz accumulated 17,000 followers. He then left his job at PhoneDog and changed his handle to @noahkravitz. However, he retained control of the Twitter account. PhoneDog sued Kravitz for misappropriation of trade secrets, intentional interference with prospective economic advantage, and conversion. The court allowed all claims to be tried, leading the parties to settle. Mr. Butts advocates for employers to preempt this predicament by drafting contracts that outline the duties and rights attached to valuable social media accounts.
Issue #2: What role does social media play in crisis management?
Jonathan DeMay, Condon & Forsyth LLP, explained how companies have come around to monitoring social media channels in order to deal with crises. News – be it true or false – travels fast in a networked society, and companies have recently had to learn this the hard way. In November of 2010, Qantas Flight 32 suffered an engine failure. Debris from the plane landed on the Indonesian Island of Batam, but the pilot was able to land the plane without any casualties. Nonetheless, the incident was initially reported as a crash by a Twitter user, and that’s the news that spread. Qantas was alerted of the false report when its stock price began to fall. The takeaway that DeMay identifies is that companies must keep a finger on the pulse of Twitter, Facebook, and other social media outlets whose content can go viral in the blink of an eye. This action must be a core focus of any company’s PR and customer-relations strategy.
Issue #3: To what degree should bloggers be held accountable for what they publish?
John Hines, Jr., Clark Hill PLC, focused on the special speech issues that arise online, in social media, on blogs, and by policy-makers. Hines identified five threats posed by speech published on the web: (1) information can go viral, disrupting even the original publisher’s ability to control the public conversation; (2) everything is transparent; (3) self-correction doesn’t always work, i.e. the damage is done; (4) everything is permanent; (5) online content, often reproduced exponentially, is forever searchable. As a practical step, to avoid a negative snowball effect from what is published online, Hines recommends that bloggers in particular follow FTC guidelines on word of mouth marketing. If bloggers are primary disseminators of information, they must make material disclosures about sponsorship and sources. Remoteness (being away from the story) is no excuse for false reporting. And, perhaps most importantly, if you publish information online – particularly if you run a forum that allows readers to post their comments – you should have in place and follow policies, practices, and policing efforts to curb the risk of false, misleading, or otherwise damaging information being found on your website.
Issue #4: Do universities have a right to access student’s social network accounts?
This will strike many, as it did the author, as a ridiculous inquiry. However, as Bradley Shear, Law Office of Bradley S. Shear, pointed out, Northwestern University’s own Athletic Department is enforcing an online social networking policy that forces student athletes to grant full access to their social network accounts to their coaches and other members of the Athletic Department (see Northwestern University Athletic Department’s Online Social Networking Policy). Awareness seemed to be the takeaway from Shear’s presentation. The more that incoming freshman and parents are aware of the invasive permissions requested by schools, the more – hopefully – places of higher learning will stay out of their students’ personal digital property.
The panel was a success because of the immense practical experience of the moderator and speakers and the diverse perspectives they each had on different sides of the social media topic. They showed that social media raises questions and opportunities far deeper than the fleeting tweets, likes, and links we associate with it.
This panel summary is provided by Nick Fuller, Journal of Technology & Intellectual Property, Northwestern University School of Law, JD Candidate, 2013.