Social Media Use by Attorneys and Law Firms

            The internet has fundamentally changed the way we interact on a daily basis. Though relatively new, social media has become a tool many businesses and individuals use in their professional lives. Platforms, like Facebook and Twitter, vary but all have a common purpose of facilitating interactions between users. The legal community has struggled with how to address the ethical concerns associated with the use of social media sometimes debating whether social media should be used within its profession at all.[1] 

            Utah’s Ethics Advisory Committee recently issued an unofficial advisory opinion to provide judges with guidance in their use of Social Media. The opinion provides some help to attorneys as well. Attorneys and judges should be cautious but they should not immediately shy away from using social media as part of their practice.While social media has been associated with a younger generation, it has expanded to include people of all ages and professions, including attorneys and judges[2]. 
           The nature of how one may “use” social media varies extensively. Many individuals in the legal community, lawyers and judges alike, are not members of any social media platform. Others may have an account or membership on multiple websites. For those who do have social media accounts, the level of individual participation on social media can vary vastly. Use on social media can range from those who have an account per se but are inactive users rarely visit the social media website; while active users may visit and participate regularly online.[3] “Active observers” may regularly visit their social media account but never actually engaging others on it; rather they use it as a tool to monitor or keep updated on the activity of others.[4] Moreover, a social media account may also serve different purposes for different individuals. Some users may limit their interactions to close family and friends as a way to keep in touch, while others use social media as a networking and business development tool to meet new people and potential clients.

There is nothing inherently inappropriate about social media use, but how you use it. Attorneys conduct is no more acceptable if it takes place online, it is just another form of technology. Social media use is not for everyone, but a basic understanding will allow you  to know why it is or is not useful for your practice. It’s important to identify your goals and understand the fundamental aspects social media; only after learning the tool, can it become useful.

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[1] Steven Seidenberg, Seduced, A.B.A. J., Feb 1, 2011, at 48 available at http://www.abajournal.com/magazine/article/seduced_for_lawyers_the_appeal_of_social_media_is_obvious_dangerous/.

[2] Seidenberg, supra note 1.

[3] See generally, Mary Madden, Older Adults and Social Media, Pew Internet & American Life Project (2010) available at http://pewinternet.org/Reports/2010/Older-Adults-and-Social-Media.aspx.

[4] See e.g. Stephanie Francis Ward, Justice Breyer’s on Twitter & Facebook, But Don’t Count on Him Friending You, A.B.A. J. (Apr 14, 2011) available at http://www.abajournal.com/news/article/breyer_on_facebook_but_dont_count_on_him_friending_you/ (explaining that he has an account of Facebook and Twitter); James Vicini, U.S. Supreme Court Justice Breyer on Twitter, Reuters (April 14, 2011) available at http://blogs.reuters.com/talesfromthetrail/2011/04/14/u-s-supreme-court-justice-breyer-on-twitter/ (explaining that he has a twitter account but he does not actively engage with the public on it and uses it as an “active observer).

Arizona Law Graduates will leave Law School as Attorneys

Arizona Supreme Court issued its approval to amend a rule eventually allowing 3L's to take the February Bar Exam. The amendment to Rule 34 of the Supreme Court Rules were approved on an "experimental basis," until December 31, 2015. Arizona 3L's would be  required to file a petition in November prior to sitting for the exam.

The amended rule is part of a pilot program to take place in Arizona Law Schools. Graduating 3L's would  receive their diploma and bar results in the spring rather than having to take the exam two months after graduating. This would eliminate the additional wait until the fall that most graduates endure before finding out  whether they can practice law. The third year of law school is considered a waste by many. The first two years are considered the most valuable and the third year of law school is often referred to as the year they "bore you to death."

Arizona schools are not the first to try and fix the problem with the third year of law school. NYU recently announced that they are revamping their third year curriculum to address this issue. Stanford Law school lead the way with changes to its third year of law school designed to allow students to pursue joint-degrees.

AboveTheLaw.com weighed in on the debate regarding whether 3L students should be allowed to sit for the Bar. All three Arizona Law schools had supported the change arguing that students would have a head start entering the job market. The National Law Journal discusses that a financial benefit accompanies the cahnge by helping students enter the job market as they graduate rather than have a six month lag. In this economy, many employers no longer consider law students for employment until after they have received their bar exam results and know they will have a license to practice law. Prior to the economic downturn the legal field was thriving and jobs were easily obtained before students actually knew they had passed the test.

The pilot program has been given two years to evaluate the effectiveness of this change in Arizona while legal educators will continue to evaluate ways to help students get jobs as quickly as possible in this slow economy.

Yale Announces Ph.D. in Law

Yale Law announced earlier this week that is was going to launch a Ph.D. in Law. The announcement has picked up buzz in the legal community because this would be the first legal program in the United States to offer a doctorate program in Law. The program endeavors to appeal to students who seek to stay in academia often building careers as Law Professors.


This is a smart move for Yale. Believe it or not, there are many law students who don't want to be big law attorneys after earning their legal degrees. Moreover, law school has traditionally been used by some students as a stepping stone to other fields, attending law school with no intention of staying the legal field after graduating. There is a small group of law students, however, who enter law school with the specific goal of becoming a law professor.


Yale's program recognizes that it is difficult to transition from legal practice to teaching. The program will focus "in-depth scholarly training." I personally know one of these students whose goal is to become a law professor. He has expressed frustration in the lack of resources available to him at the law school level with most of the attention going to students who are planning on entering firm life upon receiving a J.D. 


Yale has developed a program to serve and unmet need. There is no question that with this program, Yale's great reputation and prestige will accompany its graduates as they enter the world of legal academia after completing this program. As the school itself recognizes, “Yale Law School’s Ph.D. in Law will offer a new, alternative route into a career in law teaching and legal scholarship,” said Dean Post. “Some students will no doubt seek advanced degrees in cognate disciplines, but for those who wish to concentrate on law, we expect that the Ph.D. in Law will provide an attractive option.” 


Only time will tell how many more programs will develop a doctoral degree, admittedly some will wait to see how Yale's new program is received.

Coachella 2012: Right of Publicity

Rapper Tupac was back from the dead and back on stage at Cochella 2012 with the help of some new technology. The technology surprised many and had concertgoers thinking they were seeing a ghost. Holographic technology made the performance possible and quickly gained a lot of buzz at and after Cochella.

The technology allowed a hologram of the deceased rapper which was projected on stage to preform with Snoop Dogg, who later talked about the experience. While some celebrities reacted with enthusiasm, while others didn't care much for the hologram. The hologram has caught the attention of other deceased celebrity estates who will be looking into this new ability with a strong interest. Can you imagine Michael Jackson or Bob Marley back on stage? Or Dick Clark ringing in the New Year with us one last time? Various legal considerations play a role in the possibilities of deceased legends going on tour as holograms.

Intellectual Property Attorney's will be looking at the Right of Publicity when considering this technology in licensing deals. Some commentators discuss the copyrights and trademarks also associated with the hologram, while other look at the creation of an independent public performance copyright. Whatever the future, the performance at Cochella has been the buzz of  Tinseltown, and many are talking about the impact the technology can have on the entertainment industry.

YouTube v Viacom: Round 2

YouTube and Viacom are in for a legal battle. I haven't read much yet but below I've listed the conclusions of the United States Court of Appeals for the Second Circuit which sent the case back to disctrict court. The district court was instructed to re-consider issues surrounding whether YouTube was liable for infringement when its users uploaded copyrighted video's and songs online. Google's, who owns YouTube, saw a slight fall in stock prices after the news spread. For those legal nerds out there here's the Second Circuit Courts decision.

Here are some other articles covering the reversal:
Reuters: Viacom wins reversal in landmark YouTube case
The Wall Street Journal: Viacom Advances in YouTube Suit
The New York Times: Judge Sides With Google in Viacom Video Suit

If you need to catch up on whats been going on here is a PBS story from 2010 which covered the original decisions and the implication:  What the Viacom vs. YouTube Verdict Means for Copyright Law

In an interesting side note, YouTube and Paramount did come to an agreement recently where YouTube will provide movies for rent online for $5. Maybe its the fact that I can get a movie at Redbox for $1 and pay a bit more for Netflix which gives me unlimited movies but, $5 seems a bit steep to me. Then again, if the content is more along the lines of the recent blockbusters, the price may fit the bill.

I look forward to the day where we can see movies on opening weekend from the comfort of our own homes, though its not likely to happen since that would effectively cut a studios profits down dramatically.

Here are the courts CONCLUSIONS:


To summarize, we hold that:

(1)  The District Court correctly held that 17 U.S.C. § 512(c)(1)(A) requires knowledge or
awareness of facts or circumstances that indicate specific and identifiable instances of
infringement;

(2)  However, the June 23, 2010 order granting summary judgment to YouTube is VACATED because a reasonable jury could conclude that YouTube had knowledge or awareness under § 512(c)(1)(A) at least with respect to a handful of specific clips; the cause is  REMANDED for the District Court to determine whether YouTube had knowledge or awareness of any specific instances of infringement corresponding to the clips-in-suit;

(3)  The willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under § 512(c)(1)(A); the cause is  REMANDED for the District Court to consider the application of the willful blindness doctrine in the first instance;

(4)  The District Court erred by requiring “item-specific” knowledge of infringement in its interpretation of the “right and ability to control” infringing activity under 17 U.S.C. § 512(c)(1)(B), and the judgment is REVERSED insofar as it rests on that erroneous construction of the statute; the cause is REMANDED for further fact-finding by the District Court on the issues of control and financial benefit;

(5) The District Court correctly held that  three of the challenged YouTube software functions—replication, playback, and the related videos feature—occur “by reason of the storage at the direction of a user” within the meaning of 17 U.S.C. § 512(c)(1), and 35 the judgment is AFFIRMED insofar as it so held; the cause is REMANDED for further fact-finding regarding a fourth software function, involving the syndication of
YouTube videos to third parties.

 On remand, the District Court shall allow the parties to brief the following issues, with a view to permitting renewed motions for summary judgment as soon as practicable:

(A) Whether, on the current record, YouTube had knowledge or awareness of any specific  infringements (including any clips-in-suit not expressly noted in this opinion);

(B) Whether, on the current record, YouTube willfully blinded itself to specific infringements;

(C) Whether YouTube had the “right and ability to control” infringing activity within the meaning of § 512(c)(1)(B); and

(D) Whether any clips-in-suit were syndicated to a third party and, if so, whether such syndication occurred “by reason of the storage at the direction of the user” within the meaning of § 512(c)(1), so that YouTube may claim the protection of the § 512(c) safe harbor.

Copyright Office Issues 2011-2013 Priorities

The Copyright Office published its list of priorities this week, highlighting area's it will focus on for the next few years. Hollywood Reporter provided a great summary of some of the legal entertainment issues that will be affected.

Among the priorities for the Copyright Office will be looking into various ways to address the high cost of copyright infringement claims with the possibility of a small claims court solution. The Register of Copyrights, Maria Pallante, stated an examination of issues which arise in book digitization, illegal streaming, public performance in sound recordings, orphan works, and more.

Of course these issues will affect the public in ways that are, as of now, unforeseen but take a look at the list of priorities below, or the full report here, and don't forget to provide input by the deadlines listed!

STUDIES

Small Claims Solutions For Copyright Owners

Initial public comments are due January 16, 2012. Anticipated publication date: October 2013. www.copyright.gov/docs/smallclaims

Legal Treatment Of Pre-1972 Sound Recordings

Publication date: December 2011. www.copyright.gov/docs/sound

Mass Book Digitization

Publication date: October 2011.  www.copyright.gov/docs/massdigitization

LEGISLATIVE WORK

Rogue Websites

Congress is exploring ways to provide more effective legal tools to address online  infringement of U.S. books, films, music, and software, including infringement that originates overseas.

Illegal Streaming 

Public Performance Right In Sound Recordings

Orphan Works -  www.copyright.gov/orphan

Copyright Exceptions For Libraries

Market-Based Licensing For Cable And Satellite Retransmission - www.copyright.gov/docs/section302

TRADE AND FOREIGN RELATIONS            

World Intellectual Property Organization (WIPO)

Trans-Pacific Partnership And Other Trade Priorities

PRIORITIES IN ADMINISTRATIVE LAW PRACTICE

Prohibition On Circumvention Of Measures Controlling Access To Copyrighted Works

Initial public comments on the current (de novo) rulemaking process are due December 1, 2011. Reply comments will be due in February 2012 and hearings will be conducted in the spring of 2012. www.copyright.gov/1201

Electronic System For The Designation Of Agents Under The DMCA

Initial public comments are due November 28, 2011, and reply comments are due December 27, 2011.

www.copyright.gov/onlinesp/NPR

Review Of Group Registration Options

The Office expects to announce various group registration proposals in the first half of 2012.

Registration Options For Websites And Other Forms Of Digital Authorship

The Office intends to engage in consultations with stakeholders and seek public comment on possible solutions and decisions in 2012.

Electronic Administration Of The Statutory Licenses

Proposals will be published in 2012.

Recording Notices Of Termination Of Copyright Transfers

The Office intends to seek public comment on additional measures under section 203 that would provide parties with guidance in determining when a Gap Grant was “executed” under the law during 2012. www.copyright.gov/docs/termination

SPECIAL PROJECTS

Revision Of The Compendium Of Copyright Office Practices  

Anticipated publication date: October 2013. www.copyright.gov/compendium

Technical Upgrades To Electronic Registration

Dialogues And Roundtables With Copyright Community

Research Partnerships with Academic Community

The Office will begin seeking proposals in 2012.

Revision Of Copyright Office Website

Development work for the website will be a priority during calendar year 2012 and will include opportunities for public comment.

Public Outreach And Copyright Education

The office has the goal implementing a series of new education projects during 2012 and 2013.

Business Process Reengineering Of Recordation Division

Meetings will  take place during an 18-month period starting in November 2011 and will inform the Register’s strategic plan for this important public service.

Public Access To Historical Records

The Copyright  Office will also engage experts through a specialized project blog beginning in November

2011. www.copyright.gov/digitization

Skills Training For Copyright Office Staff

Another Win for the DMCA

A New York District Court continued the precedent of protecting Internet Service Provider's (ISP's) from infringement as long as they comply with the safe harbor provisions of the Digital Millennium Copyright Act's (DMCA) safe harbor provisions. EMI filed action against Mp3tunes.com and its founder alleging copyright infringement. The ruling seems to have left EMI on top but ISP's are the real big winners in this one.

MP3tunes.com was found to be liable for contributory infringements after not complying with take-down requests from EMI for infringing songs, however the court didn't find the company liable for direct infringement based on the fact that users are the ones who upload the infringing material not Mp3tunes.com.

The court did find Michael Robertson, the companies founder liable for direct infringement for songs he personally uploaded but that's far from what EMI was seeking. As explained in an article published on CNet, the outcome for this case will protect, or at least implies that it will, new "cloud" music storage services becoming more popular among consumers. The sticking point is whether the service provider has control over the infringing acts of its users. The court found that Mp3tunes.com didn't have control allowing it to be protected through the DMCA's safe harbor provision.

The Safe harbor provisions allow ISP's to avoid liability for infringement if they remove infringing material when they become aware of it, usually through the copyright owner sending a request for removal. However, this case affirms a long line of cases which continue to show that ISP's have no obligation to monitor the user generated material on their websites. This will no doubt continue to frustrate copyright owners who just want to protect the exclusive rights they have been given from forms of unauthorized mass distribution available online.

Capitol Records, Inc. v. MP3Tunes, LLC, No. 07 Civ. 9931 (S.D.N.Y. Aug. 22, 2011)