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Social Media: Blurring the Lines of Property for U.S. Companies


For companies, the advent of social media has drummed up more avenues in the hopes of generating new and loyal customers; however, it has also stirred new legal woes as well.

Phonedog Media, an online mobile news and review resource, experienced this first hand when its former blogger, Noah Kravitz, left the company and instead of packing a cardboard box he carted off 17,000 twitter followers with him.

In a recent report by the BBC News, Kravitz tweeted for Phonedog under the username @Phonedog_Noah but later changed it to @NoahKravitz and was told that he could keep the account – said another news source – as long as he made it personal and agreed to tweet about Phonedog “from time to time.”  After he left, Kravitz’ followers subsequently increased to 22,000, and eight months later, the company filed a lawsuit “claiming that the account’s followers were a customer list, and that it had invested ‘substantial’ resources into building it.”  The article also states that as a result of a loss in its customer base, Phonedog is “seeking damages of $2.50 (£1.60) per user, per month – a total of $370,000.”

If Phonedog Media’s lawsuit is successful, then it could set a new legal precedent for U.S. businesses in regards to the debate over who is the rightful owner of social media content – the employer or employee?

This question leads to the discussion of intellectual property, and according to the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations, Intellectual Property (IP) is divided into two categories:

Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.  Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.

By the factors given in this definition, the issue of copyright infringement would be the matter at hand according to the Phonedog lawsuit.

To address the issue of copyright law is Blaine Bettinger, a registered patent attorney based in Syracuse, New York who posted a presentation on IP laws and social media via Slideshare.net.  In the presentation, Bettinger discusses the matter of protecting user content.  According to Bettinger, “The content creator is the copyright holder of posted material under two conditions: 1) the content is original, and 2) content satisfies the “threshold of originality.””

Also from Bettinger, on April 14, 2010, the Library of Congress announced that for research purposes it would make available every tweet posted.  Accordingly, under Twitter’s user agreement license, “the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.”  The content creator may by the copyright holder, but if Twitter, or under any company’s licensing terms, they have the right to distribute said content to whomever partners with the business.  So, the legal question-of-the-day is: who is the “true” content holder?

On the other side of this debate is Bradley Shear, a Washington DC-based lawyer who argues that intellectual property laws, in fact, do not matter at all when it comes to social media.

“The major tools that companies have to protect their intellectual property rights in the Social Media Age were created before and during the Internet Age of the late 1990’s. Under current law, copyright and trademark holders have several different remedies available to go after cyber-squatters and those who utilize copyrighted material and trademarks without permission…,” Shear stated.

Furthermore, all social media outlets like Twitter, Facebook, MySpace, and YouTube “appear to have a policy in place that addresses the problem when a company’s trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark [or copyright].”  And lastly, Shear added that, “The bottom line is that intellectual property law needs to catch up with the Social Media Age….”

For businesses – and individuals for that matter – the sake of “going viral” or having instant access to information that would have otherwise been hard pressed to find, the lines of privacy and ownership gets thinner and dimmer by the minute and the laws that govern our protection are falling farther and farther behind.

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