When a user dies, who owns the contents of that user’s account?
In Ajemian v. Yahoo Inc. (May 7, 2013), a Massachusetts court considered this question. Two brothers, who administered their brother John’s estate, brought a lawsuit against Yahoo for access to email messages of their deceased brother, and a declaration that the email account was property of John’s estate. The court considered the Yahoo Terms of Service, which included this clause: ”You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.”
The court looked at the central question of whether these terms - in particular, this “No Right of Survivorship and Non-Transferability” clause described above - was reasonably communicated to the user. The terms were amended before the time of death but the evidence was unclear on whether the deceased user had assented to this particular amendment. Because of the weak evidence on this point, the court decided that Yahoo could not rely on the forum selection clause which would have deflected the case to California.
The court took the view that the deceased user was a Massachusetts resident and courts in that state had a strong interest in the outcome of the case as it related to the assets of a deceased resident, as opposed to the nature of Yahoo’s services. The ultimate decision was remanded to the lower court, but we can take away a few important lessons:
- Corporate accounts may not impacted by the death of a user, but anyone making consumer sales should review their online terms to address survivorship issues. And there are many cases where even a “corporate” user is signing up as an individual, without any clarity on what happens to that account as an “asset” of the business after death.
Get advice from our licensing and internet law experts in this complex area.
Related Reading: Is There Life After Death for Your Digital Assets?
Calgary - 07:00 MDTNo comments
A license can be granted without any written agreement. It happens more often than you might think. For example, a license by verbal agreement and a “course of conduct” was granted by one party in the case of Planification-Organisation-Publications Systèmes (POPS) Ltée and Elizabeth Posada v. 9054-8181 Québec Inc., 2013 FC 427. In that case, the lack of a written agreement was irrelevant. The court found that there was an “implied” license. The next question was whether that license could be revoked or terminated? The software owner asserted it was entitled to revoke the licence that it had previously granted, because that licence had been granted for no consideration (or “à titre gracieux” - sounds better in French).
The court disagreed. It’s true that a license granted for no value or no consideration can be revoked unilaterally. The B.C. Court of Appeal came to this conclusion in Katz (c.o.b. Michael Katz Associates) v. Cytrynbaum,  B.C.J. No. 2421 (C.A.), where an architect revoked consent to the transfer of copyright where it was given without any consideration. However, in the Planification decision, the court found significant value had been transferred over many years by the licensee, though it was never documented in writing as “consideration” for the grant of a license. This came in the form of “conceptual contributions” to the software, software testing, compensation for developers, contributions of macros and other inputs for the software.
The lessons for business?
- Be aware that a software license can be granted verbally or through a course of dealing between the licensor and licensee. This results in an “implied” software license.
- Terminating or revoking such a license may be possible if the grant is gratuitous and there is a complete absence of any value flowing back to the licensor. However, consideration can also be implied. In this case, it was pieced together from various sources to make up valid consideration for the grant of the license.
- Any “free” licenses - including licenses between joint-venture partners, or licenses for beta or pre-release versions of software - should be handled carefully to avoid these pitfalls.
Calgary -07:00 MDTNo comments
Self-replicating technologies present intellectual property law with some unique challenges.
In the case of Bowman v. Monsanto Company (May 13, 2013), the US Supreme Court has weighed into this thorny field, and on Monday it delivered a unanimous judgment upholding the rights in Monsanto’s patented soybeans. (See our earlier post: Self-Replicating Technologies (Patents in the Field, Part 2).)
Monsanto sells its patented seeds under a license agreement. Farmers are permitted to plant the beans in one, and only one, growing season. Collection and replanting is prohibited under the terms of the license. Bowman bought seeds from a local grain elevantor, planted, harvested, collected and replanted those seeds in successive years. In this way, he was able to take advantage of the “Round-Up Ready” qualities of the genetically modified beans, without paying the usual fee that would be owed to Monsanto as the patent owner. In the court’s view, this deprived Monsanto of the reward that patent law provides for the sale of each patented article. The court was clear that “Patent exhaustion provides no haven for that conduct.”
According to the court: “…we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way,the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops. …Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium. He purchased beans from a grain elevator anticipating that many would be Roundup Ready, applied a glyphosate-based herbicide in a way that culled any plants without the patented trait, and saved beans from the rest for the next season.”
The US Supreme Court sided with Monsanto and upheld the Federal Circuit Court of Appeals decision.
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There was considerable interest in our earlier post (Trade-mark Oppositions: When “Close” becomes “Too Close”) which reviewed the competing marks POMPURE vs. POM WONDERFUL for beverages, and the marks CAMILION vs. CAMÉLÉON & Design, both for software.
In another recent case Reynolds Presto Products Inc. v. P.R.S. Mediterranean Ltd., 2013 FCA 119, the Federal Court of Appeal reviewed the competing marks GEOWEB and NEOWEB, both for “cellular confinement systems”. The owner of the GEOWEB mark sought an order to strike out NEOWEB on the basis of confusion. At trial, the judge sided with the owner of the NEOWEB mark. The owners of GEOWEB appealed.
The Trade-marks Act tells us that in determining whether trade-marks are confusing, the court should consider “all the surrounding circumstances” including:
- the distinctiveness of the trade-marks and the extent to which they have become known;
- the length of time the marks have been in use;
- the type of products, services or business in question;
- the “nature of the trade” which looks at the marketplace, sales and distribution channels; and
- the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested by them.
In this case, the appeal court overturned the lower court decision. Proper emphasis should have been placed on the fact that both companies were direct competitors, selling the same products into the same market. The test to be applied is “a matter of first impression in the mind of a casual consumer somewhat in a hurry who sees the [mark], at a time when he or she has no more than an imperfect recollection of the [prior] trade-marks, and does not pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the marks”. The court should not conduct a careful examination of the two marks through a side-by-side comparison.
In the end, the NEOWEB was found to be confusing with GEOWEB and was ordered to be struck from the register.
Calgary - 07:00 MDTNo comments
In Pelchat v. Zone 3 Inc., 2013 QCCS 78, a Quebec court decision has addressed the dichotomy between the idea for a TV show, and the “form and expression” of ideas, as embodied in a TV show. In this case, the defendant Zone 3 was sued for a claim of copyright infringement related to its makeover TV show called “Métamorphose”. The lawsuit was brought by Mr. Pelchat, who claimed that his own show “Look” (which aired in the late 1980s) was infringed by Zone 3’s show. Mr. Pelchat claimed his infringed work was a “beauty makeover of a woman on TV through hair, makeup and clothes”. Copyright law is clear that it will only protect original expressions of an idea, not the idea itself. Thus, there is no infringement where the ideas between two shows are similar, but there is no actual copying of protected original expression.
In this case, the court did review the overall expression of the two shows, the structure, dialogue, sets, characters and other elements of expression. It concluded that Zone 3 did not engage in any copyright infringement.
Contact Field Law’s Entertainment Law experts for advice in this area.
Calgary - 07:00 MDTNo comments
Ever wondered if you would infringe a patent but wanted to know before any infringement occurred?
Honeywell International, Inc. and Arkema Inc. are competitors in the field of automotive air-conditioning systems. Honeywell owns certain United States patents covering refrigerant inventions - in this case, innovations for a cooling system with low global warming potential. Arkema was about to enter into certain long-term supply contracts but before doing so, it wanted an advance ruling from the court, to determine whether such conduct would infringe the Honeywell patents. To achieve this, Arkema sought a declaratory judgment under the (US) Declaratory Judgment Act that by entering into contracts with automobile manufacturers, it would not incur liability as an “indirect infringer” of the Honeywell patents.
According to this latest decision, the US Federal Circuit Court of Appeals has ruled that this situation created a controversy that was “sufficiently immediate” to access the relief under the (US) Declaratory Judgment Act.
Read this article from LES: Suppliers May Ask Courts to Rule that They Do Not Indirectly Infringe Patents when They Have Agreed to Supply an Allegedly Infringing Product Even Before Their Customers Have Had an Opportunity to Directly Infringe the Patents.
Thanks to Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P. who have posted a link to the decision here.
Calgary - 07:00 MDTNo comments
“The world has changed dramatically in the last two decades… An entity may now have a profound impact upon a foreign jurisdiction solely through its virtual projection via the Internet.”
This statement from the New York Court of Appeals in the recent decision in Overstock v. New York Taxation and Finance (PDF) paved the way for an interesting conclusion on the taxing power of New York State - and by extension, the sales tax that may be applied to many online sales, including sales by Canadian online business into the US market.
Traditionally, a state’s taxing authority was based on “economic activities” by the seller, for example, through its employees or sales agents in that state. The question faced by the court in this case was whether click-through links on a “local website” (that is, a website owned by a local state owner) would qualify to establish “economic activities” in that state. For example, a link to Amazon from a local New York State website has the effect of driving sales to Amazon. The court decided that by compensating the local New York State website owner who has signed-on to an affiliate agreement, Amazon is deemed to have established an “in-state sales force”. The site which hosts the link is paid a commission, flat fee or price-per-click, and this was considered enough to create a “substantial nexus” to the state. Passive advertisements, by contrast, would not by themselves create a substantial nexus.
It is not clear whether Overstock.com and Amazon will appeal the decision.
In other news, the U.S. Senate voted 74-20 to put The Marketplace Fairness Act of 2013 to a final vote, an Act which would allow states to collect online sales taxes. The OECD is also preparing guidelines on how to handle international value-added taxes, to deal with the current “uncertainty and risks of double taxation and unintended non-taxation”. The 2013 draft of the OECD Guidelines derives from the “neutrality” principle (the notion that value-added tax is a tax on final consumption that should be neutral for business), and the so-called “destination” principle (that tax should be paid in the jurisdiction of consumption).
In the meantime, Canadian online retailers selling into the US marketplace should consider reviewing their affiliate click-through agreements and assess sales-tax collection policies with tax advisors.
Calgary- 07:00 MDTNo comments
Field Law is proud to host the Spring 2013 meeting of the Calgary Chapter of the Licensing Executives Society on May 16, 2013 on the topic of licensing negotiations between members of Canada’s Oil Sands Innovation Alliance (COSIA).
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When is one trade-mark too close to another? This is a question that we work through collaboratively with our trade-mark clients. The short answer is: “It depends…” The long answer is illustrated by these two recent cases. A trade-mark owner can apply for registration of the trade-mark, and part of the application process involves an opportunity for competitors to oppose the application. Most applications proceed without any opposition. If a trade-mark does face opposition, it is handled through a proceeding that is ultimately decided by the Trade-marks Opposition Board (TMOB). Here are two examples:
- POMEPURE vs. POM WONDERFUL, both for beverages. In the case of Opposition by PomWonderful LLC to application No. 1,389,758 for the trade-mark POMEPURE & Design in the name of Rash Nagar, the TMOB considered the mark POMEPURE, for a range of beverages. The application was opposed by the owners of the POM WONDERFUL marks for fruit beverages. The Board decided that both marks were weak marks lacking inherent distinctiveness. Thus, neither mark was entitled to a wide scope of protection. Using so-called state-of-the-register evidence, the applicant showed at least 10 other POM-related marks for various fruit-based beverages, all owned by different owners. The Board concluded that ”consumers would be accustomed to some extent to seeing marks made up of the prefix ‘POM’ in the marketplace for alcoholic and/or non-alcoholic beverages. Accordingly, those consumers would be likely to distinguish such marks by focusing on their other components.” For that reason, the opposition failed and the mark was allowed to proceed.
- CAMILION vs. CAMÉLÉON & Design, both for software. In Opposition by Cameleon Software SA to application No. 1,422,576 for the trade-mark CAMILION in the name of Camilion Solutions Inc. a software company applied for the trade-mark CAMILION, but was opposed by the owner of the registered mark CAMÉLÉON & Design. An applicant has to prove that the absence of confusion is more probable than its existence. After weighing the Section 6(5) factors, the TMOB decided that the two marks were too close. The applicant’s mark was refused due to confusion with the existing registered CAMÉLÉON & Design mark.
Calgary - 07:00 MDTNo comments
When a cloud privacy breach occurs in Canada, what happens? In some cases, businesses are subject to mandatory breach notification requirements. This means that a privacy breach - whether as a result of a hacker, a lost USB or some other human error - must by law be reported to the commissioner and to affected individuals. Ontario has implemented mandatory breach notification under its Personal Health Information Protection Act. In Alberta, organizations subject to the Personal Information Protection Act (PIPA) are required to report a breach to the commissioner “without unreasonable delay” where a “reasonable person would consider that there exists a real risk of significant harm to an individual as a result of the loss or unauthorized access or disclosure”.
The “real risk of significant harm” requires some analysis in the event of a breach and the Alberta commissioner’s Mandatory Breach Reporting Tool (PDF) has been released recently, to assist organizations determine if they are required to report a breach under section 34.1 of PIPA. This area of law may be changing further: a private members bill was recently introduced in Parliament to implement mandatory data breach reporting in the federal personal information protection law.
Here’s a recent case that illustrates the pitfalls of a cloud privacy breach in Canada:
- In the recently released decision relating to WhatsApp (Report of Findings: Investigation into the personal information handling practices of WhatsApp Inc.), the Canadian and Dutch privacy authorities investigated WhatsApp Inc. a US company operating “WhatsApp Messenger”, a cloud-based cross-platform mobile messaging app allowing the exchange of messages for iOS, BlackBerry, and Android platforms.
- The Commissioner launched an exhaustive review of the privacy aspects of the service after complaints regarding WhatsApp’s information-handling procedures, including the collection of more information than was necessary, the potential for privacy breach, the lack of encryption.
- While the story generated damaging headlines, WhatsApp did work with the Commissioner to resolve many of the privacy concerns.
- This investigation also shows the extent to which international privacy watchdogs will work together to launch an investigation that concerns personal information that crosses international borders.
The privacy lessons are clear: get advice on privacy implications of the cloud-based service, and don’t underestimate the importance of well-drafted privacy policies and user terms. Cloud service providers should also take time to understand the breach notification protocols that would apply in the event of a privacy breach.
- Calgary - 07:00 MDT
ICANN’s new gTLD process has taken another step forward. The period for filing formal objections against new generic top-level domains (gTLDs) has now been closed, and the Trademark Clearinghouse has been opened. The Clearinghouse is a global database of trade-marks to permit trade-mark owners to verify trade-mark information and use it to support trade-mark claims as the new gTLDs are rolled out. ICANN has announced that verification services are available now.
Watch for more updates in this area and if you are a Canadian trade-mark owner, check back as we will post details about how to submit your trade-mark to the Clearinghouse.
Related Reading: Another Update on the New gTLDs
Calgary - 10:00 MDTNo comments
The Canadian Intellectual Property Office has released guidance on “Computer-Implemented Inventions” as planned, in the wake of the Federal Court of Appeal decision in Amazon. While “software” is technically not patentable, a “computer-implemented invention” is. Such an invention could fall into one of several categories: a method (art, process or method of manufacture), machine (generally, a device that relies on a computer for its operation), or product (an article of manufacture). As before, computer programs, data structures and computer-generated signals alone are not patent-eligible.
Calgary - 07:00 MDT
The court rejected the claims since there was no indication that the extra service paid for by premium users included enhanced security or encryption, since “paid” users and “free” users received the same level of security. It is clear that claims based on breach of privacy will face a uphill battle in the US, and this decision together with the decision in last year’s iPhone class action claim demonstrate the complexities and difficulties of this class of claims.
Calgary - 7:00 MDTNo comments
Parliament has introduced a new bill (Bill C-56) to amend the Copyright Act and the Trade-marks Act, to combat counterfeit products. The bill, if it becomes law, would add new civil and criminal remedies such as:
- opening up new rights to sue for damages for counterfeits and infringing activity;
- creating new criminal offences for trade-mark counterfeits (which would mirror those currently found in the Copyright Act);
- creating new criminal offences prohibiting the possession or export of infringing copies or counterfeit trade-marked goods, packaging or labels;
- grants new powers for enforcement of IP rights at the border (including detaining goods that are suspected of infringing copyright or trade-marks).
Since amendment of the Trade-marks Act is so rare, the government is also taking the opportunity to expand the scope of what can be registered as a trade-mark and fix a few other procedural problems with the current Act. This new bill is designed to bring Canada into compliance with Anti-Counterfeiting Trade Agreement.
This is one to watch in 2013.
Calgary - 07:00 MSTNo comments
Are APIs protected by copyright?
In the long-running litigation (and hey, is there any litigation that isn’t “long-running”?) between Oracle and Google, a US court decided in 2012 that APIs in this case were not eligible for copyright protection. See our earlier post. This meant a complete loss for Oracle in its lawsuit against Google for infringement of the Java APIs used in Google’s Android software.
Copyright protects only original expression. Applied to software code (including API protocols), the law of copyright tells us that certain elements are not protectable by copyright since they lack originality. The US trial level decision in Oracle vs. Google has been appealed and the parties are now filing briefs in the US Federal Court of Appeals (a copy of Oracle’s brief is here). The briefs make fascinating reading for those interested in the finer points of copyright law and the history of the Java programming.
Oracle’s brief opens by sketching a scene: “Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix —the fifth book—and proceeds to transcribe. She verbatim copies all the chapter titles—from Chapter 1 (“Dudley Demented”) to Chapter 38 (“The Second War Begins”). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one (“Harry nodded.”). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid’s Harry Potter 5.0. The knockoff flies off the shelves.”
Does this constitute copyright infringement?
One of the big issues on appeal will be whether the appeals court accepts the notion that copyright infringement can occur without any actual direct copying of code. This is the so-called SSO argument - that the “structure, sequence and organization” of the software can attract copyright protection, regardless of whether specific code is cut-and-paste. As illustrated in the Harry Potter example above.
Stay tuned. This is one to watch in 2013.
Calgary - 07:00 MST
Photo credit: Google, Inc.No comments
The use of social means to engage in defamation is nothing new. Indeed, defamation requires the very social element of publication. Social media - Facebook pages or posts, tweets, blogs and online comments - merely make defamation easier and more pervasive.
Canadian courts have struggled to balance the interests of free speech with the interests of individuals who wish to challenge and find redress for defamatory statements. A recent Ontario case has framed the issue as follows:
“There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.” Manson v. John Doe , 2013 ONSC 628 (CanLII),
The test laid out by the Supreme Court of Canada (Grant v. Torstar Corp., 2009 SCC 61 (CanLII)) is as follows: In order to establish a claim for defamation a plaintiff must establish that:
a) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
b) the words in fact refer to the plaintiff; and
c) the words were published, i.e., that they were communicated to at least one person other than the plaintiff.
In Manson, the court ordered the defendant to pay damages of $100,000 plus aggravated damages of $50,000 and costs. However, the defenant remains anonymous.
Another recent decision in Baglow v. Smith, 2012 ONCA 407 (CanLII), hints at the court’s willingness to permit parties to engage in a heated online political debate, without crossing the line of defamation. In that case, the court observed: “Commentators engaging in the cut and thrust of political discourse in the internet blogosphere can be fervent, if not florid, in the expression of their views.” In the lower court, the statements made in this “cut and thrust” were determined not to constitute defamation. However, on appeal, the court decided the matter was suitable for a full trial and overturned the lower court findings. This is one case to watch.
Related Reading: ipblog’s Defamation Archive
Calgary - 07:00 MSTNo comments
A Czech outfit calling itself the WDTP (Worldwide Database of Trademarks and Patents) regularly sends invoices to Canadian trade-mark owners, claiming to be owed a few thousand dollars as a “filing fee”. The WDTP is just one of many such operations, based in places such as Hungary, Slovak Republic or even within the United States. These outfits have made a business out of sending bogus unsolicited invoices to legitimate trade-mark owners. They base their letters on trade-mark registration data gleaned from the public US or Canadian trade-mark databases. They even appear to have trouble distinguishing between themselves, since one recent letter warned the reader that it was not associated with those other bogus outfits with similar-sounding names.
It’s small wonder that there is confusion since the names are chosen to be vaguely similar to legitimate government offices. Here is a sampling of a few names: Trademark Registration and Monitoring Office (Past Due Notice) , Trademark Registration and Monitoring Office (Intellectual Property Rights Recordation Alert), United States Trademark Registration Office, Patent & Trademark Agency, United States Trademark Maintenance Service, U.S. Trademark Compliance Service, WDTP, CPTD, WIPT, RIPT, IOPR and so on.
Lessons for business:
- Don’t respond to any “invoices” other than correspondence from your trade-mark agent, or if you are filing directly with the trade-marks office, then look for official correspondence from the trade-marks office in which you have filed.
- The USPTO has posted a warning, listing companies who are known to be circulating such solicitations (with helpful examples of letters that trade-mark owners have received);
- The Canadian Intellectual Property Office has a similar page, but does not list specific entities;
- The World Intellectual Property Office also has a warning page, with examples and names of entities.
Since our earlier post last year (Sound Marks in Canada), the road has been open for non-traditional “sound mark” applications in Canada. These are trade-marks that are perceived as sound rather than visually as a word or design. So far, about 20 applications have been filed in Canada, from the 1 second “YUMMM” mark, applied for by Red Robin restaurants, all the way to the Harlem Globetrotters’ SWEET GEORGIA BROWN MELODY, which tips the scales at 2 minutes 49 seconds.
If you want to seek protection for a sound mark, the application should:
- state that the application is for the registration of a sound mark;
- contain a drawing that graphically represents the sound;
- contain a description of the sound; and
- contain an electronic recording of the sound.
If you want advice on sound marks, we’ll lend an ear: Contact Us.
Calgary - 07:00 MSTNo comments
Here is the next case that illustrates the potential pitfalls when dealing with social media:
This recent US copyright decision involving Agence France Presse (AFP) and photographer Daniel Morel dealt with the rights of a news publisher to publish images posted to Twitter.
Mr. Morel is a photojournalist who took a number of images of the 2010 earthquake in Haiti. He then posted those images to Twitter. Those images were picked up by AFP who “licensed” the images on to Getty Images.
When Morel complained, steps were taken to have the images removed from the AFP / Getty system. But through series of mixups (of the kind that would be familiar to anyone dealing with information technology and complex organizations such as AFP and Getty Images), the pictures were not removed and were picked up and published by The Washington Post under their agreement with AFP/Getty.
The court ultimately had to decide whether Mr. Morel - the photographer - had granted a kind of license to AFP by posting his images to Twitter. This required an analysis of the Twitter Terms of Service. The court decided no, the Twitter Terms of Service do not grant such a license. The court stated that “even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.” Put another way, a copyright owner who posts content to Twitter is clearly giving up some rights to that content - the right, for example, to re-tweet, which is a fundamental part of Twitter and is contemplated (even encouraged) by Twitter’s Terms of Service. However, merely by posting to Twitter, that copyright owner is not giving others an unrestrained right or license to remove the content, copy it and redistribute it commercially.
The court says “…the Twitter TOS were not intended to confer a benefit on the world-at-large to remove content from Twitter and commercially distribute it…” This is an important reminder.
In the final analysis (and that is 58 pages of analysis if you want to read the judgement) AFP and The Washington Post were liable for copyright infringement for use of Morel’s images.
Lessons for business:
- This case confirms that any re-use of content from Twitter - and by extension, other social media streams - should be handled carefully.
- Re-tweets are clearly contemplated as being within the scope of permitted uses, but copying and republishing for commercial purposes clearly is not.
- Many situations will fall somewhere in the middle between those two ends of the spectrum. Before using or re-using content for commercial purposes, take time to review the specific situation, including the applicable social media terms of service. Before posting your own content to Twitter, be aware that the Twitter terms do contemplate certain re-uses (the scope of which is difficult to define precisely). Once it’s posted, it’s hard to stuff the genie back in the bottle
The case is Agence France Presse v. Morel.
Calgary - 07:00 MSTNo comments
Social media law was not a topic on offer when I went to law school. Now, it’s a subject that’s hard to avoid for any business that has a consumer-facing social media presence. Here are two recent cases that illustrate the potential pitfalls as this area of law becomes more complex and more interesting:
Last week, HMV’s Twitter feed was hijacked by an employee who live-tweeted employee terminations from the company’s official Twitter account. Perhaps “hijacked” isn’t the right word, since the employee apparently had access to the account as part of her employment duties, though that position likely did not involve posting descriptions of firings as “Mass execution of loyal employees”. The next day the ex-employee (“Poppy Rose”) helpfully tweeted a reminder to the company that “you need to go to ’settings’ and revoke my account access as an admin“. The lessons for business?
- Many companies are slow to grasp the power of social media. Don’t underestimate the viral nature - both good and bad - of this tool. Though the offending tweets were deleted by the company, this became a national story within a few minutes. From the company’s perspective, it required careful handling to avoid any brand damage.
- This highlights the need for a Social Media Policy for employees, to deal with the legal pitfalls of social media and particularly those employees who are engaged directly in social media sphere on behalf of the company. The ownership and control of corproate social media accounts is a simple but important element of such a policy.
Related Reading: Who Owns Social Media Contacts: Employers or Employees?
Calgary - 07:00 MSTNo comments