1. Copyright, Ethics & Social
Media: What the Connected
Lawyer Needs to Know
The Copyright Society of the USA
Mid-Winter Meeting 2013; Omni Hotel Downtown Austin
Saturday, February 16, 2013
Raymond J. Dowd,
Author – Copyright Litigation Handbook (West 2012-2013)
Partner-Dunnington, Bartholow & Miller LLP
New York, NY

2. How is the “connected attorney”
different from the traditional
attorney?

3. Prior to the 1976 Copyright Act, the
subject matter of copyright was
narrow, intentional

4. After the 1976 Act, every work of
authorship fell into the copyright
matrix

5. And the World Wide Web made global
publication instantaneous and
unavoidable

6. You’re now a publisher…
Rupert Murdoch

7. And you are now an advertiser

8. You are a blogger
- You are publishing text, photos and audio on
the World Wide Web
- You are taking screen shots, cutting, pasting,
grabbing and borrowing
- You are not paying anyone
- You are endorsing all of your friends
- Everything is free, easy and cool
- Except you can be sued for defamation
- You can lose your clients and license
- You can violate ethics rules
- You can lose your privacy and be hunted down

9. You can be a girl and lose your job

10. You are an Austin TX party animal

12. You are a shameless self-promoter

14. You are a twit

16. You can count how much of a twit you
are

17. Legal Birds

20. You can manage your profile

22. You can join the “in” crowd

24. You can be an “influencer” - join
groups and republish to thousands of
targeted individuals

28. You are an art collector – of other
people’s art

30. The Google Art Project

31. Your own personal Art
Project homepage
with your own Galleries

32. Dead City III, Fritz Grunbaum’s Collection

33. Moving from Attorney to
Advertiser/Publisher in the Matrix ..
What do you need to know?

34. Society of Professional Journalists
Code of Ethics
• Seek Truth and Report It
▫ Journalists should be honest, fair and courageous in
gathering, reporting and interpreting information.
• Minimize harm
▫ Ethical journalists treat sources, subjects and
colleagues as human beings deserving of respect.
• Act Independently
▫ Journalists should be free of obligation to any interest
other than the public’s right to know.
• Be Accountable
▫ Journalists are accountable to their readers, listeners,
viewers, and each other.

36. Farah v. Esquire Magazine, Inc., 863
F.Supp.2d 29 (D.D.C. 2012)
- Esquire blog “parody” interview with “birther”
book author claiming that author withdrew book
and refunded money after Obama published
long-form birth certificate
- $100 million defamation/false light lawsuit
- Qualified immunity by Anti-SLAPP suit –
advocacy on public interest issue
- Satire on a matter of public concern not
defamation

37. Blogs: more play for untrue speech?
• while generally, “online speech stands on the
same footing as other speech,” In re Anonymous
Online Speakers, 661 Fed.Appx. 1168, 1173, No.
09–71265, 2011 WL 61635, at *2 (9th Cir. Jan. 7,
2011), blogs are a subspecies of online speech
which inherently suggest that statements made
there are not likely provable assertions of fact
Obsidian Fin. Group, LLC v. Cox, 812 F. Supp.
2d 1220, 1223 (D. Or. 2011)

38. FTC Publishes Final Guides Governing Endorsements,
Testimonials
http://www.ftc.gov/opa/2009/10/endortest.shtm
• The Federal Trade Commission today announced that it has approved final
revisions to the guidance it gives to advertisers on how to keep their
endorsement and testimonial ads in line with the FTC Act.
… long standing principle that “material connections” (sometimes payments
or free products) between advertisers and endorsers – connections that
consumers would not expect – must be disclosed. These examples address
what constitutes an endorsement when the message is conveyed by bloggers
or other “word-of-mouth” marketers. The revised Guides specify that while
decisions will be reached on a case-by-case basis, the post of a blogger who
receives cash or in-kind payment to review a product is considered an
endorsement.
Thus, bloggers who make an endorsement must disclose the material
connections they share with the seller of the product or service.

39. Under FTC Guidelines
• Can you endorse anyone on LinkedIn?

40. If you are not a journalist
• Can you protect your sources?

41. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 979-980, 365 U.S.App.D.C. 13,
28 - 29 (C.A.D.C., 2005)
• .The Supreme Court went on to observe that “freedom of the press is
a ‘fundamental personal right ... not confined to newspapers and
periodicals. It necessarily embraces pamphlets and leaflets .... The
press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion.’ ” Id.
(quoting Lovell v. Griffin, 303 U.S. 444, 450, 452, 58 S.Ct. 666, 82
L.Ed. 949 (1938)). Are we then to create a privilege that protects
only those reporters employed by Time Magazine, the New York
Times, and other media giants, or do we extend that protection as
well to the owner of a desktop printer producing a weekly newsletter
to inform his neighbors, lodge brothers, co-religionists, or co-
conspirators? Perhaps more to the point today, does the privilege
also protect the proprietor of a web log: the stereotypical “blogger”
sitting in his pajamas at his personal computer posting on the World
Wide Web his best product to inform whoever happens to browse
his way? If not, why not?

42. Attorney Ethics: Publicity Regarding
Civil Matters and Attorney/Client
Privilege
• Should you publish information regarding a civil
matter?

43. Know the Law: N.Y. Rule of Professional
Conduct 3.6: Trial Publicity
a) A lawyer who is participating in or has participated
in a criminal or civil matter shall not make an
extrajudicial statement that the lawyer knows or
reasonably should know will be disseminated by
means of public communication and will have a
substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.
b) [Subsection (b) sets forth a variety of specific types of
statements which are likely to prejudice an
adjudicative proceeding. Attorneys who are
contemplating making statements about a pending
case should familiarize themselves with this
subsection.]

44. N.Y. Rule of Professional Conduct 3.6:
Trial Publicity (Cont.)
c) Provided that the statement complies with paragraph (a), a lawyer may
state the following without elaboration:
• The claim, offense or defense and, except when prohibited by law, the
identity of the persons involved;
• Information contained in a public record;
• That an investigation of a matter is in progress;
• The scheduling or result of any step in litigation;
• A request for assistance in obtaining evidence and information necessary
thereto;
• A warning of danger concerning the behavior of a person involved, when
there is reason to believe that there exists the likelihood of substantial harm
to an individual or to the public interest; and
• In a criminal matter:
o The identity, age, residence, occupation and family status of the accused;
o If the accused has not been apprehended, information necessary to aid in
apprehension of that person;
o The identity of investigating and arresting officers or agencies and the length of
the investigation; and
o The fact, time and place of arrest, resistance, pursuit and use of weapons, and a
description of physical evidence seized, other than as contained only in a
confession, admission or statement.

45. Blogging 101 The Legacy of Jim Letten
When Assistant U.S.
Attorney Sal Perricone had
been commenting on
www.nola.com , the New
Orleans paper The Times-
Picayune’s online affiliate
site, it led to quite the
scandal. And the eventual
resignation of US Attorney
Jim Letten.

46. The Litigation Privilege
Lawyers are absolutely immune from civil liability for statements
or conduct that may have injured, offended, or otherwise
damaged an opposing party during the litigation process. This
protection, often referred to as the "litigation privilege” shields a
litigator regardless of malice, bad faith, or ill will of any kind. See,
e.g., Sinrod v. Stone, 20 A.D.3d 560, 561 (2d Dep’t, 2005)
(“Statements made by parties, attorneys, and witnesses in the course
of a judicial or quasi-judicial proceeding are absolutely privileged,
notwithstanding the motive with which they are made, so long as they
are material and pertinent to the issue to be resolved in the
proceeding”); Long v. Marubeni America Corp., 406 F.Supp.2d 285,
294-295 (S.D.N.Y., 2005) (litigation privilege extends to absolute
privilege for out-of-court assertions, when made to interested parties,
and that fairly reflect a party's in-court litigation position).

47. The Litigation Privilege (Cont.)
• The litigation privilege has been codified in New
York as McKinney's Civil Rights Law § 74: “A
civil action cannot be maintained against any
person, firm or corporation, for the publication
of a fair and true report of any judicial
proceeding, legislative proceeding or other
official proceeding, or for any heading of the
report which is a fair and true headnote of the
statement published . . . .”

48. Exception to the Litigation Privilege
• The litigation privilege does not apply where
there has been a deliberate institution of
baseless litigation for the precise purpose of
fabricating a reporting privilege. Williams v.
Williams, 23 N.Y.2d 592, 599 (1969).

49. Attorney-Client Privilege Concerns
• Confidential, attorney-client privileged information
is generally protected from discovery. However, the
privilege can be voluntarily waived by the holder of
the privilege when the confidential information is
disclosed to third parties.
• Accidental or inadvertent disclosure is usually held
to be a complete waiver. See, e.g., Underwater
Storage Underwater Storage Inc. v U.S. Rubber
Company, 314 F.Supp. 546 (D.D.C. 1970).

50. Attorney- Client Privilege Concerns
(Cont.)
Implied privilege waiver has arisen in social media. In
Lenz v. Universal Music Corp., 2010 WL 4789099
(N.D.Cal. 2010), an employee, via e-mails, a blog, and
Internet chat sessions, disclosed information about
her attorneys’ litigation strategy. Statements made in
social media included a statement that her attorneys
were “pretty well salivating over getting their teeth
into UMG [the employer] again.” This statement
waived the privilege with respect to why the lawsuit
was commenced. Employee disclosed in a Gmail chat
that her attorneys hoped that opinion would clarify a
“cloudy” decision. This statement waived the privilege
relating to the attorneys’ legal strategies.

51. Duty of Impartiality – Hearing Officer
Stengle v. Office of Dispute Resolution, 631 F. Supp. 2d
564, 577 (M.D. Pa. 2009)
Regardless of whether Stengle's blog activity qualified as “advocacy,”
her conduct in that regard had the potential to raise questions as to
her impartiality and indeed did just that. Plaintiff acknowledges that
two attorneys, […] stated that they intended to file formal recusal
motions because they questioned Plaintiff's ability to be impartial in
light of her blog entries. …While those attorneys never filed the
contemplated motions, that fact does not alter the essential inference
to be drawn from this factual array. Again, actual disruptiveness need
not occur; ODR Defendants need only target potential disruptiveness.
From these facts, one can readily infer that Plaintiff's blog had the
potential to induce recusal motions from those who came before her in
her hearing officer capacity. If such a motion were to be filed, either
one of two things could happen. Plaintiff could recuse herself, or she
could elect to deny the motion and hear the case to its conclusion. In
either instance, governmental efficiency would be adversely affected.

52. Why Does Social Media Matter?

53. The Lesson
Social media and related technology provide a
host of ways to disclose information to unintended
audiences. Clients and attorneys should take care
to protect the attorney-client privilege by ensuring
that privileged information is not accidentally
disclosed.

54. Corporate Information Posted on Blogs
• Blogging or posting on to other
social networking sites about
work-related information has
cased a lot of uproar

55. How Can Twitter affect the Courtroom?
• Jurors tweeting about the
trials they are a part of
• Posting photos of celebrities
involved in cases

56. Social Media & Your Location
Geolocation
• Logging onto your Facebook,
Twitter, FourSquare, Apps on
smartphones all can help to
pin-point your location
• Law enforcers around the
country are using geolocation
to track down criminals that
are using social media during
their crime sprees

57. Facebook & the courtroom
Courtroom affects:
• “friending” opposing
counsel or the judge
• Chatting about what is
going on in trial
• Posting to Facebook or
Twitter revealing
evidence regarding
character or credibility

58. Discovery of Social Networking Sites:
Private Accounts
• SNS content is not shielded from discovery
simply because it is “locked” or “private”
• Courts have held that a requesting party is not
entitled to access all non-relevant material on an
SNS, but merely locking a profile from public
access does not prevent discovery either.

59. Social Media is Discoverable
• Social media is generally discoverable
• Include social media in document preservation demands
and in document preservation client memos
• Social media websites are ESI and should be handled as
such
• Various tools to collect, process, and review social media
• Preserve chain of custody

60. Attorney Ethics and Social Media
Discovery
• Lester v. Allied Concrete Company
• Attorney fined over $500K for telling client to delete
negative information from Facebook. Client independently
sanctioned $180K for following attorney’s advice.
• Zimmerman v. Weis Markets
• Anyone posting photos or information to a public site has no reasonable
expectation to privacy. Plaintiff ordered to provide log-in information
and passwords.
• McMillen v. Hummingbird Speedway
▫ Plaintiff ordered to turn over social media usernames and passwords.
Plaintiff claimed injury related to a car race. But Facebook page referenced
attending another post-incident race.
▫ “unrealistic to expect that such disclosures would be considered
confidential.”

61. Fair Use Analysis
• “fair use of a copyrighted work … for purposes
such as criticism, comment, news reporting,
teaching (including multiple copies for
classroom use), scholarship, or research, . . .
is not copyright infringement.”
17 U.S.C. § 107.

62. Use of Copyrighted Materials: Fair Use
Test
• Purpose and character of the use, including
whether use is commercial or non-profit
• Nature of the copyrighted work
• Amount and substantiality of portion used in
relation to copyrighted work as a whole
• The effect of the use upon the potential market
for or value of the copyrighted work

63. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
• A. Purpose and Character of the Use
• The court finds that the purpose and character of Nelson's
blog is both commercial and educational in nature. His blog
on the Las Vegas housing market is designed to provide
important information to potential and current homeowners
and provide recent developments in the industry as well as
Nelson's opinion on the state of the market as whole.
However, the underlying purpose of providing this
information is to create business for himself as a duly licensed
realtor operating in that market. Thus, although Nelson's blog
gathers varied information and provides it to the public free of
charge, the purpose of providing that information is
commercial in nature. Therefore, the court finds that this
factor weighs against the fair use of the copyrighted
information

64. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
B. Nature of the Work
• The nature of the Work is split between factual news
reporting and reporter commentary. The portion
copied by Nelson contains factual news reporting
about a new federal housing program which
supports Nelson's fair use of the copyrighted
information. See e.g., Los Angeles News Service v.
CBS Broadcasting, Inc., 305 F.3d 924 (9th
Cir.2002) (re-publication of a video depicting a
news report was a fair use because it was
informational rather than creative).

65. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
• C. Amount of Copyrighted Work Used
• In his blog, Nelson reproduced only the first
eight sentences of a thirty sentence news article.
The court finds that this use weighs in favor of a
fair use of the copyrighted material. See e.g, CBS
Broadcasting, Inc., 305 F.3d at 941 (copying
only as much as necessary in a greater work to
provide relevant factual information weighs in
favor of fair use).

66. Righthaven LLC v. Realty One Group,
Inc., 2010 WL 4125413 (D. Nev. 2010)
• D. Effect on Potential Market for Copyrighted
Work
• The court finds that Nelson's use of the copyrighted
material is likely to have little to no effect on the market
for the copyrighted news article. Nelson's copied portion
of the Work did not contain the author's commentary. As
such, his use does not satisfy a reader's desire to view
and read the article in its entirety the author's original
commentary and thereby does not dilute the market for
the copyrighted work. Additionally, Nelson directed
readers of his blog to the full text of the Work. Therefore,
Nelson's use supports a finding of fair use.

67. Copyright Litigation Handbook (West
2012-2013) by Raymond J. Dowd