The U.S. District Court for the Southern District of New York adressed the issue of whether or not third parties are granted a license to reuse content after it has been posted to Twitter. In Agence France-Presse v. Morel (S.D.N.Y., No. 1:10-cv-02730-AJN-MHD, 1/13/13), Morel, a photojournalist, had posted photos he took of the aftermath of the 2010 Haitian earthquake on Twitter. Agence France-Presse republished those photos without consent from Morel. The court rejected the argument by Agence France-Presse that Twitter’s terms and conditions of service created a license for the use of content for which all third parties are beneficiaries. The court held that a third party can only benefit from a contract if the terms of the contract “clearly manifest” such intent.

Twitter’s terms and conditions state:

After watching six other states pass legislation in 2012, Washington legislators are negotiating a bill to address requests by an employer for access to an employee’s or prospective employee’s social networking accounts. Substitute Senate Bill (SSB) 5211 is working its way through the legislative system and was most recently passed out of Labor and Workforce Committee (House) on April 3, 2013, with a recommendation to “keep working on it.”

In its current state, SSB 5211 states:

In early February, I was interviewed by Investor’s Business Daily for an article titled “Facebook Keeps User Data Private After Death” written by Tony Kontzer. The article focuses on who is entitled to your social media postings after your death. This is uncharted territory as digital assets are considered to be part of the estate of the deceased, but what happens when social media sites such as Facebook and LinkedIn are involved. To read the

Can you imagine signing into Facebook or Twitter and being notified that you had been served with a lawsuit? That idea may not be too far out of the realm of possibility. Courts in several countries, including Canada, Australia, New Zealand and the United Kingdom have already allowed or, in some cases, even encouraged the use of social media sites, including Facebook, as a means of alternative service of notice.

In Washington, to serve someone with notice of a lawsuit, you follow the requirements of RCW 4.28.080 and Court Rule 4 and serve the copy of the summons and complaint on the defendant personally. Alternatively, if, after reasonable diligence, the defendant cannot be served personally, you leave a copy of the summons and complaint at their residence and also mail a copy by first-class mail to the residence or to their known place of employment. Washington does have a statute that provides for service by publication but its applications are more limited.

Court Rule 4(h) does provide the court additional flexibility. The rule states that “[a]t any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.” Presumably, a court could allow service via social media if it decided that there would be no material prejudice to the party being served by amending the process.

Instagram (and Facebook) seem to have come out of last December’s incident just fine. As of last month, Instagram is now reporting that they have over 100 million active monthly users. Considering that Instagram is less than 3 years old, and has yet to deliver a long awaited Windows Phone app, this milestone is impressive. Instagram’s growth (from 90 million users to 100 million users in one month’s time) means that it could catch up with LinkedIn and Google+ in the not so distant future. And Twitter had better start looking over its shoulder.

All seems to be quiet on the Instagram front now. Does anyone remember what happened just two weeks ago? Have Instagram users changed their accounts back to the public setting? Did you delete your Instagram account?

Instagram may be holding strong, despite it’s misstep earlier this month. If so, Instagram may be the story of 2012. Check out the Instagram 2012 Timeline (courtesy of Lisa Kalner Williams’ article in Social Media Today):

Instagram’s bad luck continues this week: The first class action lawsuit has been filed as a result of Instagram’s attempt to change their terms of service (“TOS”), their fake “apology” and then their partial retraction of the new TOS. The TOS that are going into effect on January 19, 2013, removes the language that states that Instagram could display user content without compensation. However, users have now had the chance to digest the fact that removing that piece of the TOS does not solve the problem. Instagram still has the right to display user content (photos, user IDs, etc) and that Instagram “may not always identify paid services, sponsored content, or commercial communications as such.”

It was a tough week for Instagram last week. Let’s take a look back:

On Monday, December 17th, Instagram posted on their blog that Instagram would be changing their terms of service as of January 16th, 2013. The new terms of service provided that each user accepts the new TOS by accessing Instagram and, once accessed, a user has no way to opt out of the new TOS. Under the Rights section, the user agreed:
• 1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.
• 2. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
• 3. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
•[Emphasis added.]

The above emphasis language caused a public backlash that Instagram didn’t expect and wasn’t ready to handle. Users. including many high profile celebrities and politicians, immediately spoke out against the changes and deleted their accounts. The idea that Instagram was planning to, or at least reserving the right to, take users photos, user names and post them as endorsing different commercial products was not acceptable to the millions of Instagram users who had created communities on the photo sharing service and those users decided not to stay quiet.

Do you ask your clients if they know what happens to their digital assets once they die? Do you know what happens to your own digital assets when you die? Digital assets are those which exist in a solely electronic and non-tangible manner such as email, digital photos, online banking accounts and records, media libraries (such as iTunes), and social media accounts such as Facebook, LinkedIn, and YouTube, as well as the content posted on the accounts. In this age of social media, online banking and bill paying services, it is critical that your clients think about what will happen to these digital assets and plan ahead for how to handle them after their passing.

Most states, including Washington, have not passed laws (yet) to address digital assets. The states that have passed laws mostly address email, and even those laws vary from state to state. But digital assets include so much more than just email, and most clients would likely feel differently about how to handle different types of online accounts. Some accounts clients might want to have canceled immediately; others, such as digital photo albums, clients may want to survive and be transferred to a
family member.

Clearly Reed Hastings, CEO of Netflix, didn’t read the earlier post Cautionary Tale: CFO Fired for Social Media Use. In July, Hastings posted on his Faecbook page and on the company blog that people had watched over one billion hours of the company’s video’s in the previous month. Netflix stock soared on that news. The SEC took note and was not pleased. According to the SEC, this sort of news should have been shared in a more traditional fashion such as a press release. By sharing it on Facebook and on the company blog, the news was given out to “fans” which gave those people insider knowledge. But, argument is now being made that the news was public once it was shared on the Internet since it could easily be forwarded, shared and reported. The SEC may find itself in a position of having to update its rules to take into account the new ways information is shared.

For more information on social media, blogging and all other commercial transaction issues, please contact Chris Pothering at cpothering@scblaw.com.