Social Media Legal Bytes for Techies
Community Guest Blog post by By Deborah Gonzalez
Social media platforms, smart phones and applications are changing the way we conduct business and interact socially with friends, family, and colleagues. Today, discussions involving Facebook®, Android®, and Angry Birds® are common. The iPad® became an immediate phenomenon and developing applications for it has become a billion dollar business, as well as a fun hobby for techies who enjoy the challenge of creating the next best thing and competing in the open market of creativity.
But it is not all fun and games. The financial payouts and consequences of social media for those involved, including vendors, developers, and clients, are becoming more apparent. New cases emphasizing social media mistakes costing reputations, resources, and jobs are becoming just as common as new releases of applications and putting everyone on alert. How do you leverage the power of social media and the opportunities it brings to the technically and creatively inclined while protecting the intellectual investment and value of the developer?
Welcome to the high tech world of social media, technology and the law. This post won’t provide all the answers but it will outline some key issues for developers to keep in mind as they pursue their work and/or passion. Also, this post does not constitute legal advice – see an actual, living, breathing attorney for that. It serves educational purposes and should be viewed as a starting point not an end all.
Read, enjoy, share and please let us know your thoughts – did we miss one; do we need to clarify something; do you have additional questions or comments? Post your comment below or send us a tweet @law2smdeborah or by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it and don’t forget to join us for the TAG webinar on August 23, 2011, Geeks, Tweets, and the Law. Register at http://www.learnitlive.com/class/1029/Geeks-Tweets-and-the-Law.
Some Basics
Social media, like most computer systems, consist of three major components:
Which of these three is most important? That is an age-old question in the tech world and usually depends on who you are - do you manufacture the device, write the code, or use the applications? What we do know is that all three need to work together for maximum benefit. The law helps to keep the relationships smooth among the three components and their players.
There are rules in the social media world – unwritten cultural norms in this digital environment. There is a language that the insiders know and there is a protocol to the conversation. Social media is about currency (what is important at this moment), authenticity (credibility and trust), and relevancy (to who is reading or interacting). Violating any of these can lead to a slippery slope of legal violations. Current laws do apply – because they are the laws that we have. But these laws are being challenged, changed, modified, and recreated, with news laws proposed every day – including two new laws on privacy introduced in 2011. So being kept up to date is not reading just one post, but reading many on a regular basis. This is an area that is continuously and rapidly evolving – the law is evolving as well, especially its application in this new digital arena.
Some Issues
Intellectual property rights are the incentive for creative professionals to generate the work they do that we can then enjoy, criticize, purchase, give away, protest against or rally around. Copyrights are basically a bundle of rights to the “author” of the work to control the reproduction, distribution and ultimate use of the work created.
The endeavor has to be in a fixed, tangible medium. Thoughts and ideas are not protected, their expression is. There are hundreds of apps with different birds in them. How many can you name?
Who the author is can sometimes be the point of legal contention – work for hire, employee vs. independent contractor, commissioned works – each of these adds a new dimension of complexity if a contract that spells out the exact relationship isn’t explicit or doesn’t even exist. For developers this is important because it can lay out whether your compensation for your work is to be a one lump payment or small amounts of royalties spread out over the years. In the social media environment we can add the complexity of crowd sourcing - outsourcing work to an unspecified group of people, typically by making an appeal to the general public on the internet (www.dictionary.com). For a more detailed look at the terms of participation look at any of the various design source sites, such as 99Designs, and read their terms of use. Most are based on work for hire with full copyright transfer to the client.
Trademarks are symbols or words used to identify a source. In marketing, trademarks are related to branding. In today’s online world, finding the perfect name for a company, product and/or service can be complicated as you want to make sure you not only have a unique and distinctive name, but that you can have the website domain name, the Facebook® Fan Page name, the Twitter®, Linkedin®, YouTube®, and Flickr® accounts, WordPress® or Blogger® account and as many other social media platforms you will have a presence on that are the same as the brand name you decided on. Now if you are developing for someone else – this is not your concern. But if you are developing for yourself (and your own company) this is something to think about. By the way, the ® symbols you’ve been seeing in this blog means these trademarks have been registered with the US Patent and Trademark Office.
Privacy and restricted data is another big issue these days. Just because technology has advanced to certain stages where facial recognition and real-time streaming from video glasses are reality does not mean that certain people (users, clients, government representatives) are not concerned about the free flow and exchange of personal data and the potential for its unauthorized and inappropriate use – including identity theft, privacy violations, financial redirection, and various other forms of criminal activity. As a quick example, experts estimate that a single tweet can violate 17 different federal privacy laws, as well as a number of state laws (California has over 88 laws that can be violated)! If you are developing an application for someone where data is being collected, make sure YOUR contract has an indemnity clause holding you harmless for damages caused by the collection and use of the data. As for not programming the app at all – that is up to you, your ethical morals, and your professional code of conduct that you adhere to.
There are many more issues out there – including liability for malware, trademark infringement via search engine optimization, patent assignment for hardware, employment policies, etc., etc., etc. Those will be discussed in fuller detail in the August 23 webinar. Hope to see you online!
