ICLE 2012: Social Media and the Law: Beyond the Essentials


Matthew Clarke and Brian Wassom

On September 21, 2012, Law2sm founder, Deborah Gonzalez, served as the program chair for the Institute of Continuing Legal Education in Georgia (ICLE) program entitled Social Media and the Law: Beyond The Essentials.  The program was introduced by John Timmons, of Timmons, Warnes and Associates, LLP, http://www.classiccitylaw.com/.

This is the second year Attorney Gonzalez has served as chair for this annual program.  Last year the full-day program focused on social media legal basics that every practicing attorney should know including an in-depth look at different social media platforms, how they are used by attorneys, and some pitfalls to watch out for in using social media.  In addition, the 2011 program included sessions on digital assets, social media in the criminal system, social media and employment law, and ethical and privacy concerns related to social media use.  For a recap of last year’s program see: http://law2sm.com/icle-social-media-and-the-law-the-essentials/.

This year, Attorney Gonzalez began the day with an update of the social media legal landscape.  She shared a YouTube clip “Social Media Revolution 2012http://www.youtube.com/watch?v=ZQzsQkMFgHE as well as an Info graphic from Mashable.com depicting the amount of data uploaded per minute on the different social media platforms http://mashable.com/2012/06/22/data-created-every-minute/.

So what has changed from 2011 to 2012?

  • We need to move beyond talking about the basics
  • Facebook, Twitter and Pinterest (no longer LinkedIn, soon to be Instagram)
  • Olympics never the same
  • Digital Campaign 2.0
  • NLRB – 3rd Memo on Social Media Policies
  • Trade associations issued more white papers, regulations & guidelines
  • Google Plus still around

Next up on the agenda was Brian Wassom, of the Wassom.com blog fame, http://www.wassom.com/, who gave a fascinating presentation on “Augmented Legalities.” Brian is a commercial litigator in Southeast Michigan whose practice focuses on copyright, trademark, publicity rights, media law, and related subject matter. He is a partner and the chair of the Social, Mobile and Emerging Media Practice Group at the law firm Honigman Miller Schwartz and Cohn LLP.  His session presented first an overview of some interesting technological developments in terms of augmented reality – digitally enhancing our sensory experience – and augmented sociality, including Google glasses, gamification, facial recognition, etc.  The second part of Bran’s session presented 4 areas of legal concerns: copyrights, privacy negligence, and product liability.  For more information check out his eBook at http://www.wassom.com/ebook.html.

Attorney Gonzalez focused the next session on “Digital Immortality and the Law.”  This session built on the 2011 session of Digital Assets but went beyond the exploration of intangible online property to the power of dead hands, and the possibility of life not ending but becoming transformed into a living brain intelligence.  She shared with the audience another video clip, “Digital Death” http://www.lifeinsurancefinder.com.au/infographics/what-happens-online-when-you-die/.

The afternoon brought Matthew Clarke, partner at Smith, Gambrell, & Russell, LLP, in Atlanta (http://www.sgrlaw.com/attorneys/profiles/mclarke/).  His session, Updates on Social Media and Employment Law covered the entire employment cycle – from recruitment to termination – and the impact social media has had on it.  Attorney Clarke also gave an update on the 3rd NLRB memo and some of the controversial policy statements made by the NLRB that stand in contrast to long-standing law and legal principles such as trademark and confidentiality during investigations.  Matthew also discussed the recent state legislation prohibiting employers from requesting candidate passwords as criteria for employment.  The session included various examples of postings from “wayward” employees and social media mishaps.

The day ended with a two-part presentation by Attorney Gonzalez on How to Conduct a Social Media Legal Audit for Your Client.  This session gave an overview of the Socially Legal Audit tool developed by Law2sm, and how attorneys can use it to identify and resolve potential liability concerns for their clients.

Feedback from the evaluations of the program indicated another resounding success and some great ideas for next year’s session.  Stay tuned or better yet, let us know what you would like us to explore in 2013.

For more information about the program and/or to secure materials from the 2011 and 2012 sessions please contact ICLE at http://iclega.org/.



Wiggle Your Toes Day: 10 Toe-Wiggling Tweets

Here’s to another wonderful, wacky, remind-us-to-have-fun holidays – Wiggle Your Toes Day, August 6, 2012.  Pretty self-explanatory, and as you read the title I am sure you couldn’t resist wiggling the little ones at the end of your feet.  So in honor of our meandering digits I present my 10 toe-wiggling tweets.  Share these and then do you have any to share?

  1. Edie Weinstein recalls that his relationship w his tootsies began w “This little Piggie went to market” by his parents http://blog.beliefnet.com/blissblog/2011/08/wiggle-your-toes-day.html
  2. Enjoy reading Dr Suess’ The Foot Book, a Whacky Book of Opposites, with someone special and wiggle your toes!  http://www.seussville.com/books/book_detail.php?isbn=9780394809373
  3. You have feet in your shoes. You can steer yourself in any direction you choose. And you are the guy who’ll decide where to go.  Dr. Seuss
  4. Forget not that the earth delights to feel your bare feet and the winds long to play with your hair. Khalil Gibran  http://www.library.cornell.edu/colldev/mideast/gibrn.htm
  5. So many things we can do w our toes – pick things up, draw alphabet letters, feel the wet grass and the warm sand, play toesies, tickle…
  6. Experience a pedicure, get a foot massage, experiment reflexology, have tiny fish clean your toes, soak the toes in a bubble bath, ahhhhhh
  7. The Wiggle Your Toes Foundation helps victims & families who have lost their limbs, accident, illness, or disease.  http://www.wiggleyourtoes.org/home.html
  8. The faster you go, the more chance of stubbing your toe, but the more chance you have of getting somewhere. Charles F. Kettering
  9. Show off your gorgeous toes with a little shoe therapy – flip flops, sandals, foot jewelry – did u know sandals were worn over 15,000 yr ago
  10. Zac Brown Band “Toes”video.  Do you know who Flody Boatwood is?  Note: This is the adult version.  Enjoy and relax. http://www.youtube.com/watch?v=lB8Nkn3Xjes

Reflections on Social Media Day 2012

One year ago I began to prepare for the launch of my new firm, Law2sm, which focuses on the legal issues surrounding social media and its use.   I marked the point by offering a Lunch and Learn on Crowdsourcing and running a Tweet-a-thon to raise funds for Chance for Children, a United Nations non-governmental organization.  You can read the recap here: http://law2sm.com/social-media-day-the-law2sm-way/.

This year I searched for another way to celebrate Social Media Day and found myself in a reflective mood.  So much has transpired since last June in the world of social media that has overlapped my own world.  Seemed like a good time to take a moment, review and put into perspective.

In the past twelve months we have seen a new social media platform emerge and conquer to become the new #3 – Pinterest – pushing out LinkedIn.  We have seen Google + launch, change privacy policies, and breathe new life into its Chrome browser.  Facebook went public with an IPO that led some to believe caution is still best, and business is still accountable to the old standards of capitalism and success.  NLRB issued three memos offering guidance on the legality of “Facebook Firings” and social media employee policies.  Defamation ran amok on Twitter and jurors caused more mistrials for their social media misbehavior than ever before.  Cyber-bullying took center stage for some states in their legislatures, as Ravi from Rutgers was sentenced to 30 days.  The Arab Spring and the Occupy Movement provided classic cases of social media for advocacy and revolution with mixed results.  Twitter and LinkedIn have ended their working relationship (in place since 2009 – in the digital world a millennium ago).  The Internet rose up against SOPA and PIPA with a massive blackout.  These are just a few.  You probably can think of many more major social media events you would highlight.

But what does it all mean?

After so many of my presentations this year, the inevitable question comes up – is social media a good thing for our society or is it bad?  This is an old question – is technology good for us?  Socrates was against the pen and paper – stating that using those tools would make us lazy and lose our abilities to remember and for rhetoric.  In the 80’s there were those who cautioned again the “ghost in the machine” – the inevitability of machines that we programmed enhancing its own artificial intelligence to make humans obsolete.  What about our children?  They opt for the iPad and other digital devices for entertainment, education, and socialization.  If at the restaurant all the members of the family are bowing their heads, it’s not in prayer anymore, it’s to interact with their cell phones.  Do we speak to each other anymore – face to face – not text, not instant message or chat, not email (which is by all accounts becoming more and more obsolete).  Handwritten notes are becoming exclusive and expensive – a new boutique niche market.  And we take thousands of photos, but print to display very few if any – who has the time to review all those photos?

There is a book I read called Alone Together: Why we Expect More from Technology and Less from Each Other by Sherry Turkle, http://alonetogetherbook.com/.  One of the conclusions that stayed with me is that we have taught our children to “love” inanimate technology and have forever changed the way they, and our society as they grow and have children of their own, interact with real people.  It began, states Sherry, with “tomogachis,” a little digital pet who needed to be fed and cared for or it would die.  Next came “Furbys” who said to our children “I love you” and our children said it back.  These were and are followed by increasingly more sophisticated digital toys and friends – Teddy Rupskin, CLIO, etc.  Robots with humanoid features are being perfected.  Will these become the new “companions,” substitutes for real human connection, relationships without the mess?

And what about the extreme – downloading a brain, cloning the body, fusing them to create a child who was killed before his or her time so the grieving parent could once more hold him in their lap?  Will a lifetime no longer be a defined parameter?  Will digital immortality become a new norm – or worst, be available only for those who have the money for such an endeavor? What would “human” mean then?

These are questions that go beyond “social media.”  We cannot turn back the clock on “progress.”  But we can remember and strive to keep the human in us forever.  I have seen how social media can be used as an introduction or as a tool to continue to nurture a relationship and work superbly.  I have seen how it can lead societies to political change by opening a channel of communication between the oppressed and the outside world.  I have witnessed social media helping those in need by being a forum to conduct resources where required.  I have seen children take the reins back from their abusers and use social media as an anti-bullying tool.  I have seen the sharing of cultural song, artifacts, languages, and friendship via social media.  I have seen love blossom online.  Yes there are opposites to all of these online as well.  But I choose to see the potential.  I choose to focus on the good.  I do not ignore the bad and the hurtful.  My company, Law2sm, was created to offer resources, answers and sanctuary to those harmed by social media and to try to prevent it from happening through education.

But unlike many of my fellow attorneys who say “No, no, no,” I say. “It’s here. It will be ok.  You can be socially legal and thrive in this digital society.”


PS – So as summer hits and vacation beckons, before you post that photo from the beach that cannot be deleted and will haunt you, your reputation, and your company forever – ask yourself – how can I assist you today? Because that is what I do.  Help YOU stay in business and flourish in the online social media world.

In Honor of No Socks Day: 10 Sock Tweets (May 8)

As I was looking for a fun subject to write this blog about I can across two unique holidays in May – May 8th “No Socks Day” and May 9th “Memorial Day of Missing Socks.”  Just hearing their titles made me laugh and I decided I would challenge myself to do homage to both in 140 characters-Twitter style. Here are my top ten sock reflections.  Can you add another?

  1. Socks keep my feet warm and comfy; different styles for different moods, different culture, different people; Tabi for the Japanese, 2 toes
  2. Why are there sock orphans; how do we lose them from the washer to the dryer; does the Bureau of Missing Socks knows? Does the Bureau exist?
  3. A sock was found in Egypt; very old; 300-500 AD; cloth; split toe; now in Victoria & Albert Museum, UK; another Elgin Marbles story? Give kb
  4. Pablo Neruda, poet; Ode to My Socks; Mara Mori knitted them of wool; he would not save them for later but wear them for it was a cold winter
  5. Sock monkeys; sock puppets; sock apps; even The Sock Puppet School of Business; learn to laugh and make money; success depends on your sock
  6. Solving the missing sock mystery is fun: Quantum Theory may have a solution, but I would follow Inspector Lint Eastwood, Missing Sock Movie
  7. Remember Pets.com Dog Sock Puppet?  He advocated for being given a second chance & not to be stereotyped; http://bit.ly/wQDl
  8. Important socks in culture: MichaelJ’ white socks in Billie Jean video; Socks the White House cat; Tom Cruise’s sock-slide in Risky Business
  9. How much difference can a sock make?  Rock Your Socks against bullying; Marines Socks for Heroes; TheJoyofSox to help the homeless; sock hop
  10. Recycle socks? chew toy; coin purse; muscle relaxers; horse bandages; wash car;potpourri holders; stash cash; hair curlers; ornaments, more

PS – If you liked #2, you can actually take the “Test for Provisional Special Agent” at http://www.funbureau.com/Test/test1.htm.  Let me know how you do.

World Intellectual Property Day 2012

Today, April 26, is World Intellectual Property Day 2012.  To increase general understanding of what intellectual property really means, the World Intellectual Property Organization (WIPO) member states chose April 26 – the day on which the WIPO Convention came into force in 1970 – as World IP Day” (http://www.wipo.int/ip-outreach/en/ipday/).

As creative professionals and industries around the world celebrate this day, let’s take a few minutes to understand what is intellectual property and how is it relevant to YOU in your everyday life, even if you are not an artist, a musician, a film maker, and/or a writer.

Let’s begin with defining what intellectual property is.  WIPO defines intellectual property as creations of the mind; inventions, literary and artistic works, and symbols, names, images, and designs used in commerce ( Source: http://www.wipo.int/about-ip/en/  (WIPO)). 

These are divided into two categories:

  • Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source
  • 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

Intellectual property rights are the incentive for creative professionals, including but not limited to, artists, musicians, writers and moviemakers, to generate the work they do that we can then enjoy, criticize, purchase, give away, protest against or rally around.  This is after all, a controversial area.  Copyrights are basically a bundle of rights to the “author” of the work to control the reproduction, distribution, display, and ultimate use of the work created.

Some key points:

  • It has to be in a fixed, tangible medium.  Thoughts and ideas are not protected, their expression is.  Ever see the same movie twice with different actors?
  • 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.  Then expand that question to who owns user comments on a Facebook® Fan Page or who owns contributions to a Wikipedia page?
  • Rights can be transferred through a sale or license agreement.  Rights can be split – for example, a right for composition vs. for lyrics in music; a right to reproduce but not distribute.
  • Rights last a certain amount of time only and the length depends on which country the work was produced or registered.
  • Do you need to register?  If you want to sue is what we’ve always been told. Easy, but can be expensive when you begin to register in every country you want protection in.  (For an easier solution, look up Madrid Protocol).

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.

Some key points:

  • Trademark can be infringed if customers are confused between two marks because they are too similar.
  • Trademark value can be diluted if someone else has a similar mark or uses your mark in a less than positive way (way less than positive, if you know what I mean).
  • ™  and ® are different. You can use the ™ as soon as you start using your logo/symbol in commerce.  You use the ® when you have a trademark registration with the US Trademark and Patent Office (expensive but worth it).
  • Can the registered trademark help you in securing the account names for social media platforms?  A lawyer’s answer – it depends. But it is always a good first step.

Other intellectual property rights include trade secrets (best one Coke Cola’s formula) and patents.

A good rule of thumb is everything on the Internet is owned by someone – logos, icons, graphics, articles, text, photos, drawings, advertisements, blog posts, videos, and on and on.  Do not use it without permission (even if it was posted by a family member or life-long friend) or without an absolute justified defense under the fair use doctrine of the Copyright law (in the US or its international equivalent for foreign websites).

Intellectual property rights are all around us – from the coffee we drink to the late night comedy program; form the morning newspaper on our iPad® to the evening email right before we leave work – our favorite television shows, movies, morning cartoons, and more.  We wear them on our clothes, on our carrying cases, on our technology.  How does intellectual property affect your world?

For more information on World IP Day check out their Facebook Fan Page – yes, the WIPO is in the 21st Century!  https://www.facebook.com/worldipday

For more information on my intellectual property legal practice and other resources (including presentation handouts) see: www.dgonzalezesq.com.