Ryan Garcia - Social Media Law in a Nutshell

WEST ACADEMIC PUBLISHINGS LAW SCHOOL ADVISORY BOARD

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

SOCIAL MEDIA LAW

IN A NUTSHELL

RYAN GARCIA

Adjunct Professor of Law
University of Texas School of Law

THADDEUS HOFFMEISTER

Professor of Law
University of Dayton School of Law

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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ISBN: 978-1-63459-354-0

ACKNOWLEDGMENTS

I dedicate this book to Sara, Besher, and Isaac, the most supportive family I could ever hope for. #yourock

Many people helped me along my social media law path but I would like to especially thank the following for their assistance in creating this book: Professor John Dzienkowski for introducing me to Dean Bobby Chesney and helping launch my Law & Social Media class at the University of Texas School of Law; Louis Higgins for his support and guidance; Jim Dudukovich, Mark Bisard, and all my fellow SMART colleagues who have guided so many of my social media thoughts; my Social Media and Communities (SMaC) colleagues at Dell who have helped shape these conversations by constantly innovating in their field; my co-author Thaddeus for his steady pursuit of bringing this book to fruition and his research assistant Marty Gehres; and to the entire staff of the Circle C Starbucks in Austin, Texas, who have provided me with writing space and, more importantly, caffeine enough to complete this journey.

Ryan Garcia

This book is dedicated to A and Z.

I would like to acknowledge the efforts of my three research assistants Marty Gehres, Elizabeth Watson, and Ann Charles Watts.

Thaddeus Hoffmeister

OUTLINE

B. The Risks Behind Personal
Connections

. Platform Terms and
Conditions

Non-Legal Restrictions on Posted
Content

B. Content Rights Granted to
Platforms

Rights That Allow the Platform to
Operate

Rights Around Non-Platform
Use

2.05 Authorized Use and Criminal
Violations

B. Employee Use of Social Media Under
the CFAA

Disclosure Proximity in Short
Form Social Media

Disclosing via Links in Short
Form Social Media

3.03 Social Media Advertising in the Real
World

E. Material Connections Include Prizes
of Variable Amounts

G. Well-Known Commercial Affiliation
Still Requires Disclosure

B. Social Media Risks for Sweepstakes
and Contests

a. Sweepstakes and Refer-a
Friend

Risks Based on Promotion
Design

A. Social Media Passwords, Profiles,
and Job Applicants

B. The NLRB and Social Media
Policies

NLRB on Social Media Before
2010

a. NLRB Reports on Social
Media

b. Social Media Policies and
Union Employees: American Medical Response of
Connecticut

Laura Kuenssberg and the Lost
BBC Followers

Social Media Account Ownership
in the U.S.

Retaliation via Social Media
Posting

A. Perk-Based Crowdfunded
Ventures

B. Equity-Based Crowdfunded
Businesses

D. Crowdfunding Mechanics and
Risks

a. When Projects Fail Post
Funding

b. Potentially Fraudulent
Projects

A. Why Virtual Currencies Were
Created and How They Work

B. Legal Risks Around Virtual
Currencies

B. Restrictions on Speech in Social
Media

C. Rights of Publicity Restrictions in
Social Media

Social Media and Rights of
Publicity

Expressions Are Protected, Ideas
Are Not

a. Short-Form Social Media
Posts as Protected Epigrams

b. Short-Form Social Media
Posts as Protected Jokes

C. Social Media Accounts as
Compilations

Social Media Platforms as
Agents

Social Media Content as
Graffiti

Requirements for DMCA Safe
Harbor

a. Copyright Infringement
Policies

b. Non-Interference with
Copyright Owners
Monitoring

iv. Amount and
Substantiality

v. Effect upon Potential
Market

c. The Lack of a Clear Fair Use
Test

7.02 Safeguarding Content from Social
Media Providers

7.03 Safeguarding Content from Third
Parties

9.07 Government Restrictions on Social
Media Use

C. Revealing Information to the
General Public

TABLE OF CASES

References are to Pages

381 Search Warrants Directed to Facebook, Inc., In re v. New York City District Attorneys Office, 293

Adelson v. Harris, 248

Allied Concrete v. Lester , 364

Assi, State v. , 346

Beckley, People v., 344

Bently Reserve LP v. Papaliolios, 233

Binion v. ONeal, 312

Bland v. Roberts, 161

Boston v. Athearn, 228, 229

Bowen, United States v., 393

Brady v. Maryland, 328

Butler, Commonwealth v., 265

Calder v. Jones, 312

Casiano, Commonwealth v., 285

Chace v. Loisel, 409

Chevron v. Donziger, 254

Clevenstine, People v., 346

Cohen v. Facebook, Inc., 201

Collins, United States v., 296

Craig, State v., 262

Crispin v. Christian Audigier Inc. , 320

Dendrite Intl, Inc. v. John Doe No. 3, 252

Dianna Bennington, In re, 399

Doe v. Harris , 303

Doe v. MySpace, 225

EEOC v. Simply Storage, 332

Eleck, State v., 344

Elonis v. United States, 260

Facebook v. Power Ventures and Steven Vachani, 211

Facebook, Inc. v. Power Ventures, Inc., 209

Facebook, Inc., In re , 200

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 224

Feld v. Conway, 247

Fraley v. Facebook, Inc., 202

Gamble, In re, 383

Gatson, United States v., 287

Giglio v. United States, 328

Godwin, United States v. , 194

Gordon & Holmes v. Love, 246

Griffin v. State, 343

Gulliver Schools, Inc. v. Snay, 361

Harden v. State, 354

Harris, People v., 288

Honorable Michelle Slaughter, In re, 401

Horowitz v. Horowitz, 266

Horton, People v., 283