Intellectual Property Law in the Age of Social Media

Northeastern School of Law lecturer Jeff Blank discusses the importance of staying up-to-date on IP laws in the age of social media.

A riveting intellectual property debate occurred during the Congressional questioning of Facebook CEO Mark Zuckerberg on April 10 and 11, 2018.

Zuckerberg told Utah Senator Orrin Hatch: “Every piece of content that you share on Facebook, you own, and you have complete control over who sees it and … how you share it, and you can remove it at any time.”

This comment raises several important questions, including one posed by House Energy and Commerce Committee Chairman Greg Walden: “Does Congress need to clarify whether or not consumers own or have any real power over their online data?”

In other words, if a user’s rights in photo or data shared through Facebook depends on Facebook’s disclosures and terms of service, should such disclosures and terms be regulated? If so, how?

Rapid advancements in social media are posing challenges for courts, as existing laws were written without social media in mind. Congress has also faced difficulty passing new regulations in this complex and developing area that it does not fully understand.

These mounting issues and unanswered questions highlight how the interplay between intellectual property (IP) law and social media is an emerging area of concern for not only lawmakers and lawyers, but also business owners and consumers. Why should businesses and consumers be concerned? Before answering that question, it’s important to take a step backward to understand the fundamentals of intellectual property.

What Is IP Law?

IP law is a general term for both tangible and intangible property rights. Tangible property rights include:

• Trademarks/Trade Design: A name, symbol, and/or design identifying and distinguishing the source of goods or services of one party from those of others
• Copyrights: Exclusive rights to produce copies and control an original literary, musical, or artistic work
• Patents: Exclusive rights to manufacture, use, or sell an invention

Intangible property rights include:

• Trade Secrets: Economically valuable information, formulas, or processes, not generally known or ascertainable to others by which a competitor would obtain an economic advantage if known
• Right of Publicity: The right to control one’s own name or likeness
• Right of Privacy: The right to prevent the disclosure of private information in the absence of clear and ambiguous consent

Federal registration and protection is available for tangible property rights. Business owners should understand the categories, registration systems, and processes to obtain protection for their names, designs, works, and inventions whenever possible—or else a competitor may be able to lawfully “steal” their creations.

Federal registration of intangible property rights is not available. Thus, it’s important for businesses, entrepreneurs, and consumers to protect their information. This is how the intersection of intellectual property and social media has become the current concern of debate.

Social Media and Intellectual Property

Zuckerberg was asked to appear before Congress after news spread of allegations that a University of Cambridge professor obtained data on potentially 87 million Facebook users, including Zuckerberg himself, through a personality quiz and then shared such data with Cambridge Analytica, whose services were retained by customers, including the 2016 presidential election campaign for Donald Trump.

Facebook has since tightened its policies regarding the information developers and third parties can access, making it clear that third parties are prohibited from selling and sharing data with others.

But what about information shared by users through the Facebook site? Should Facebook be allowed to utilize such information when selling advertising and selecting consumers to target with sold advertising? Are consumers knowingly allowing Facebook to use their information in connection with advertising? In addressing this issue to Congress, Zuckerberg stated that Facebook tries “to be exhaustive in the legal documents,” but doesn’t “expect that most people want to read a full legal document.”

While Congress debates whether it should regulate the content of written terms of service that govern the relationship between social media sites and consumers—much like they regulate loan documents that govern the relationship between lenders and consumers—users of social media sites should carefully read the terms of service.

Otherwise, information that a consumer or business owner believes is being privately shared among a network of friends and protected by the right of privacy may be used in connection with subsequent retargeted advertising directed at the consumer or business owner.

Or, as was the issue in the lawsuit Fraley v. Facebook, after a user clicked a “Like” button on a company’s Facebook page, Facebook would generate an ad that would typically consist of that member’s name, profile picture, and an assertion that the person “Likes” the advertiser, along with the company logo. While the plaintiffs argued that this violated their right of publicity, Facebook contended that the users, through the terms of service, consented to sharing their name and profile picture in the manner utilized.

The stakes can be even higher for trade secrets. Lists of customers, suppliers, and other contacts, along with their associated information—such as names of key personnel, direct phone numbers, and email addresses for such key personnel—are of huge value to a business, but can also be highly detrimental if a competitor obtains the information.

Protection of IP in the Social Media Era

With fierce market competition and the present gray areas in IP law, business owners must work harder to protect valuable information by restricting its access to necessary personnel. Currently, when adding content to websites or utilizing social media for promotion, business owners often reference customer or supplier names and fail to properly adjust social media privacy settings, allowing others to see their “friends.” These actions can cause business owners to lose trade secret protection for customer and supplier names and contact data.

In the lawsuit Veronica Foods v. Ecklin, for example, the court held that while the identification of Veronica Foods’ customers could qualify as trade secrets, Veronica Foods’ website and social media accounts demonstrated that the company publicized many of its customer relationships. The court held that Veronica Foods could only assert claims for trade secret misappropriation related to specific customers whose relationships were not publicized.

If business owners and consumers do not understand how to protect tangible IP rights or how protection of intangible IP rights can be lost through social media posts, then such business owners and consumers may suffer detrimental harm. Thus, it’s critical that individuals stay up-to-date on changes in IP law, enabling them not only to contribute to the current public debate at a deeper level, but also to better protect both personal and employer information.