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Social Media Offers Good News/Bad News for Lawyers

By Lisa Fantino

Social networking sites like Facebook, MySpace, Friendster, and more recently Twitter, are blazing a new frontier in cyberspace and forging new ground for entertainment lawyers. That's good and bad news. The bad news is that Facebook alone has 175-million users across the globe who are clueless about copyright law and were simply outraged because they thought Big Brother was watching them. The good news is that creates a pool of hundreds of millions of new problems for entertainment lawyers to solve.

Facebook CEO Mark Zuckerberg is no dummy; after all, he created the fastest growing communications network in a downward global economy. And the Harvard educated billionaire would presumably have highly-paid and skilled Internet lawyers advising him; yet, that doesn't seem to be the case. Oh, they have coached Zuckerberg big-time since the brouhaha over content started on thewww.msnbc.msn.com/id/21134540/vp/29427147#29427147" target="_blank"> Today Show , but Facebook should never have been in this mess from the get-go.

Often what I find is that transactional lawyers and corporate counsel who draft "policy" and Net guidelines are not skilled at issue-spotting when it comes to potential pools of litigation and that's music to the ears of entertainment and Internet litigators.

The laundry list of issues, as I humbly see it, starts this way and grows:

1. Content ownership:
Zuckerberg has side-stepped the issue, stating on the Today Show, "If you sign up for the site and then you decide that you want to take that information down, then none of that information will be shared with anyone going forward." OK, it won't be shared with your former Facebook "friends" but where does it go? In the absence of a formal waiver or transfer to the contrary, the copyright rests with the content's creator (www.copyright.gov/title17/92chap2.html" target="_blank">See: §§201, 204 of the U.S. Copyright Law ); however, does Facebook have any license rights, and if so, what are they, or what should they be?

If the Facebook user is inherently granting a license to Facebook by virtue of its registration and subscription for an account, then when exactly does that grant of rights terminate? §203(3)-(4) of the U.S. Copyright Law states the parameters for termination of the grant and it's not clear that a Facebook subscriber can immediately terminate that license by withdrawing the content and/or deleting an individual account.

I'll address the implications of using third-party applications via Facebook in a follow-up blog next month.

2. Digital archives:
While Facebook is not serving as either editor or publisher of content, the information does reside on its servers and it would be illogical to think that it will not keep a digital archive for a respectable amount of time. Without such a corporate policy, would Facebook not then open itself to possible issues of spoliation of evidence, even in the absence of any legal duty to do so? While it is true that most courts have been reluctant to allow such third-party spoliation claims (www.law.cornell.edu/nyctap/search/display.html?terms=basil&url=/nyctap/I04_0025.htm target="_blank">See: MetLife Auto & Home v. Joe Basil Chevrolet, Inc., 303 A.D.2d 30 (N.Y. App. Div. 2002), aff'd 2004 1 N.Y.3d 478, 775 N.Y.S.2d 754 (2004) ), corporate counsel should be aware that Facebook, MySpace, Twitter, and the like may face direct charges in a lawsuit where spoliation would be based on very fact-specific information. Therefore, it is likely that these social networks will archive content for a respectable amount of time, as it would be financially imprudent for them not to do so, since paying for digital storage now could save millions in claims and legal fees at some future date.

3. Corporate Governance:
Facebook is soliciting comments from its users regarding corporate policy and has stated that it will re-visit its privacy and content policies after this "open door discussion" period ends on March 29th. The users of Facebook and MySpace are not shareholders; therefore, is Facebook just downright insane to allow its "friends" to even remotely suggest what would be the best use of its servers? Maybe, just maybe each Facebook "friend" should cough up the $240-million that Microsoft did for a 1.6% share in Facebook; at least that would make each of them a minority shareholder! If this doesn't stop them from tweeting all about then maybe Facebook users should invest $9.99 at Godaddy.com and buy their own domain. Then no one could tell them what to do; how to do it; or what to say. Then, any and all lawsuits that fly at them through cyberspace could be borne by them as well.

In the end, as ladylitigator.wordpress.com target="_blank">Lady Litigator sees it, the entire universe of social networking is a potential goldmine for us lawyers.

Hey, wanna be my Facebook fan">www.facebook.com/pages/Mamaroneck-NY/Lady-Litigator-The-Law-Office-of-Lisa-Fantino/50052159868" target="_blank">Facebook fan ? LOL

Lisa Fantino is an award-winning journalist turned attorney with a general and entertainment practice in Mamaroneck, NY. www.lisafantino.com" TARGET="_blank">Law Office of Lisa M. Fantino

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This page contains a single entry from the blog posted on April 13, 2009 4:00 PM.

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