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Potential Pitfalls of Online Relationships Between Supervisors and their Employees

Employers grappling with social media issues often ask whether it is advisable to permit employees to friend each other on Facebook, or connect on other social media sites.  While it makes sense to typically avoid prohibiting friendships among rank-and-file employees (which could violate the National Labor Relations Act), social media interaction between supervisors and their subordinates can be more complicated.  In these cases, it is important to recognize that a supervisor’s decision to connect with his or her subordinates via social media may result in inappropriate or unexpected disclosures.  This can be a problem for two reasons. First, an employee’s social media activity may reveal the employee’s religion, national origin, disability, or other protected characteristic.  A supervisor who inadvertently discovers this information online may later be accused of unlawfully making employment decisions based on this knowledge.  Second, as the employer in Peer v. F5 Networks learned, employees whose social media… Continue Reading

Yahoo! v. Facebook: Clicking Through the Blogosphere Bias

Originally posted March 13.  Updated March 28, 2012. On March 12th, Yahoo! filed a patent infringement lawsuit in the Northern District of California alleging that Facebook infringes ten Yahoo! patents.  Immediate reaction has been widely critical of Yahoo!, from interpreting statements made in the filing as a claim by Yahoo! that it “patented the whole idea of Facebook” to characterizing Yahoo! as “relentlessly stagnating as Facebook innovated.”  Such is to be expected from the blogosphere with regard to the party asserting software or Internet-related patents.  However, if one really wants to weigh the merits of this lawsuit and the claims being made about it, there really is no substitute for digging into the subject matter of the patents that Yahoo! claims cover various aspects of how Facebook operates: Yahoo!’s “Advertising Patents” Yahoo! claims protection in systems and methods for advertising, placing advertisements on a web page in a manner according… Continue Reading

Fraud Allegations Sour Apple’s Promises That Its App Store Is Secure

Apple should be celebrating.  Its App Store recently exceeded 2 billion downloads.  Over 600,000 apps are now available for the iPhone, iPad and iPod Touch.  Yet, continuing claims of fraud surely dampen any celebration and threaten to sour the App Store’s reputation as a secure marketplace. The New York Times recently shared Ryan Matthew Pierson’s story.  In about an hour, Mr. Pierson’s iTunes account was charged $437.71 for virtual currency that he could use to buy guns, nightclubs and cars in iMobsters, a popular iPhone game.  The problem is, Mr. Pierson has never played the game.  He was the victim of fraud.  Unfortunately, Mr. Pierson is not alone.  Hundreds of others have complained that the App Store is not secure. Consumers are not the sole victims of this fraud.  Developers lose hundreds of thousands of dollars to App Store fraud.  Compounding their problems is consumers’ perception that developers are to blame… Continue Reading

The New Runaway Jurors: Social Media Addicts

Imagine you are at home one night enjoying your favorite pastimes—checking your Facebook page and Twitter feed.  Your significant other intrudes, and tells you that there was a jury summons in the mail—and it has your name on it. You immediately update your statuses (all of them) to “OH NO! JURY DUTY!  ):”  After all, you know what comes next: if selected, you anticipate weeks of missed work, long-winded lawyers, and uncomfortable seats. Your worst fears regarding the seats are confirmed while participating in something the judge refers to as “voir dire.”  To your chagrin, you are selected for the jury.  Then, you are surprised when the judge adds insult to injury by instructing the jury to refrain from mentioning the trial in any social media for the duration of the trial. But, you were never one to keep your Twitter followers waiting, were you?  So—against the judge’s instructions—you live-blog… Continue Reading

Pinning Down Your Brand: Pinterest Issues of Consideration to Brand Owners

We’ve all heard of it.  It’s been in the news.  You’ve seen it on Facebook.  Charlie Sheen is probably even getting in on it.  The latest buzz in social media: Pinterest (#Pinning!).   Pinterest describes itself as a virtual pinboard.  Users of the site “pin” images they discover on the internet to their own pinboards.  Other users can view the images pinned to someone’s pinboards, click through those images to the original site where the content was found, and share those images with others (“Repinning”).   Pinterest has enjoyed an enormous increase in popularity over the last year, rising to over 17 million users as of last month—hitting the 10 million user mark faster than any independent site in history, according to one study.  Alexa shows that Pinterest.com is now the 16th most popular website in the U.S., and the 62nd most popular worldwide.  And it drives significant referral traffic… Continue Reading

Discovering the Cloud – Issues to Consider Before Storing on the Cloud

By: Sean Perryman Cloud computing can provide enormous benefits to some companies, but only if risks and expenses are evaluated in advance. Businesses increasingly rely on cloud computing to store documents and information. Through third-party service providers, the cloud can reduce IT management and maintenance costs, presumably maximizing operational efficiency. Companies considering moving data to the cloud typically believe these financial and operational benefits outweigh the risks. While the media has focused on security risks, litigation and discovery complications may prove even riskier factors to a third party storing and preserving your company’s data. Normal discovery rules may apply to the cloud Sophisticated organizations recognize the duty to preserve relevant information in anticipation of litigation. They have in place litigation holds and other procedures to address this duty. As businesses transition to storing data in the cloud, they should implement similar document retention procedures. Federal Rule of Civil Procedure 34… Continue Reading

British High Court Permits Service Via Facebook: Will U.S. Courts Follow?

By Nick Nelson The Associated Press reports that a High Court Judge in England last week approved the use of Facebook to serve legal documents on a defendant in a commercial dispute. According to the report, the plaintiffs had attempted to serve the defendant at his last known address, but it wasn’t clear whether the individual was still living there.  The defendant’s e-mail address was also unknown. Attorneys for the plaintiffs told the High Court that there was evidence that the defendant’s Facebook account, on the other hand, was active – he had just recently accepted two new friend requests. Under these circumstances, Justice Nigel Teare granted the plaintiffs’ request to serve the defendant via Facebook.  According to Jenni Jenkins, an attorney for plaintiffs who was quoted by the Associated Press, the defendant was given extra time to respond to the claim “to allow for the possibility that he wasn’t… Continue Reading

Recent NLRB Social Media Report Raises New Questions

As we have detailed in this blog and elsewhere, the National Labor Relations Board (“NLRB” or the “Board”) made social media cases a priority in 2011.  As demonstrated in a recent memorandum released by the Board’s Acting General Counsel, this trend is set to continue in 2012.  Memorandum OM 12-31 summarizes 14 recent social media complaints received by the Board, and details the General Counsel’s conclusions on each case.  While the report reiterates many of the Board’s previous pronouncements regarding social media, it also raises new questions about employer regulation of employee social media use, as well as permissible social media policy language.   A New Standard to Evaluate Employee Social Media Comments? Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right, among other things, “to engage in . . . concerted activities for the purposes of collective bargaining or other mutual aid or protection” (emphasis… Continue Reading

All A-Twitter: When Someone Else Owns the Twitter Username for Your New Brand

You’ve selected the perfect brand. Trademark counsel has cleared it. You even have the domain. Everything’s coming along, but then you get the bad news: someone else owns the corresponding Twitter username. It happens. In September 2011, Netflix was roundly mocked for failing to secure the Twitter handle for its much-ballyhooed QWIKSTER DVD-to-mail service – a problem that was solved only when Netflix abandoned its plans for the DVD-only option. In a perfect world, companies would ensure that a new brand is available on key social media sites before launch. Otherwise, at least as far as Twitter is concerned, you might be out of luck. If the owner of the Twitter account acquired the username before you established rights in the trademark, typically there’s no infringement claim to be made. You also can’t simply offer to buy the username from the owner – Twitter explicitly prohibits selling or buying usernames.… Continue Reading

See No Facebook Speak No Facebook (or Twitter): Interesting Social Media Restrictions in Europe

Recent social media restrictions in two of the world’s more technologically-advanced countries portend possibly similar bans elsewhere of popular social media sites. A German state, Schleswig-Holstein, apparently does not “like” Facebook. In August, Schleswig-Holstein ordered state institutions to delete their Facebook pages and to remove the “Like” button from their websites. If those institutions do not comply, they could be fined. The edict resulted from the Schleswig-Holstein data commissioner’s concern that Facebook builds profiles of users and non-users based on data Facebook collects when someone clicks the Like button. Such a practice, the data commissioner alleged, violates German and European data protection laws. Facebook disagrees with the commissioner’s contention. As reported on pcmag.com, a Facebook spokesperson stated: “The Facebook Like button is such a popular feature because people have complete control over how their information is shared through it.” Moreover, Facebook asserts that the only information the company receives, when… Continue Reading

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