Presented to DBA Intellectual Property Law Section June 22, 2012 John G. Browning

1. “Who Owns Your Twitter Account?#Maynotbeyou: Legal issues Surrounding Ownership of Social Media Content” Presented to DBA Intellectual Property Law Section June 22, 2012 John G. Browning

2. I. Social Media Accounts and the Employment Relationship A. TEKsystems, Inc. v. Hammernick (U.S. District Ct. – Minn) • settled without judicial resolution • former employee accused of contacting customers and former co-workers via LinkedIn in violation of non-solicitation agreement • Sasqua Group v. Courtney (E.D. N.Y. Aug. 2, 2010) • former employee argued LinkedIn contact and list of clients constituted publically available information • Court agreed, denying trade secret protection

3. Not just a U.S. Problem • Hays Specialist Recruitment Ltd. V. Ions, et al (April 2008 U.K. case) • recruiter leaves to start competing recruiting agency, takes LinkedIn contacts with him • Court rules that Hays had to disclose his contacts (that they were not his to keep) • Laura Kuessnssberg, former BBC chief political correspondent, leaves to join ITV; changes her Twitter account name from BBCLauraK to ITVLauraK. Do her 60,000 Twitter followers belong to her?

4. The Line Between An Employee’s Social Media Account and An Employer-Owned Account is Sometimes Blurry • Maremont v. Susan Fredman Design Group (U.S. Dist. Ct., N.D. of Illinois Dec. 2011) • Maremont, director of marketing for SFDG, created and maintained both SFDG Twitter and Facebook accounts, as well as personal Facebook and Twitter Accounts • While she is hospitalized, SFDG begins using Maremont’s personal accounts to promote the company. She sues, claiming Lanham Act violations, SCA violations, etc. • Court denied SFDG’s MSJ, reasoning that “Maremont created a personal following on Twitter and Facebook for her own economic benefit.”

5. Eagle v. Morgan, et al. (U.S. Dist. Ct., E.D. Pa. Dec. 22, 2011) • • Dr. Linda Eagle founded Edcomm in 1987; it’s purchased in Oct. 2010 and Eagle is terminated in June 2011. • • Employer required its executives, including Eagle, to open and maintain LinkedIn accounts; employer had significant involvement in the creation, maintenance, operation, and monitoring of the account. • • After termination, Eagle is unable to access her account, and Edcommemployees change her account profile to display name and photo of the interim CEO. • • Eagle sues for Lanham Act violations, misappropriation of identity and publicity, and other causes of action. • • Court ruled company can claim ownership, but dismisses most of Edcomm’scounterclaims (including claims of statutory trade secret misappropriation).

6. Ardis Health, LLC v. Nankivell (S.D. N.Y. Oct. 19, 2011) • Ardis Health hired Nankivell as “Video and Social Media Producer;” has her sign a “Work Product Agreement” that all work created by her is company’s sole and exclusive property. • Nankivell is fired, and refuses to return company-provided laptop and social media account login information. She also is showing content from a social media site she developed for the company as part of her portfolio during interviews. • Ardis sues, claiming trade secret misappropriation, among others. • Court orders Nankivell to turn over the login information, but not to return the laptop or to stop displaying website content as part of her portfolio. • Example of the importance of having an agreement that documents ownership.

7. PhoneDog LLC v. Kravitz (N.D. Cal. Nov. 8, 2011) • PhoneDog hires Kravitz as product reviewer/blogger in April 2006, and he’s given use of a Twitter account, @PhoneDog_Noah. • Kravitz resigns Oct. 2010: company requests that he relinquish use of the account. • Instead, Kravitz changes handle to @noahkravitz, and continues using the account and communicating with the 17,000 followers he cultivated while with the company. • Dec. 2010 – Kravitz joins a PhoneDog competitor and continues to use the Twitter account.

8. PhoneDog sues in July 2011, alleging misappropriation of trade secrets, conversion, and interference with prospective economic advantage. • PhoneDog maintains Twitter following should be treated like a customer list, and seeks at least $340,000 in damages (applying a formula that each Twitter follower is worth at least $2.50 per month). • Case raises interesting questions: What is a Twitter follower or a Facebook fan worth? Can a list of followers be a trade secret?

9. Restatement (Third) of Unfair Competition §39 (1995): Trade secret is “any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.” • Texas legislative definition of trade secret: “the whole or any part of any scientific or technical information, design, process, procedure, formula, or improvement that has value and that the owner has taken measures to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes.” - Texas Penal Code Ann. §31.05(a)(4)

10. 3 Main Characters of a Trade Secret: • Actual secrecy • Valuable information • Precautions taken to ensure information is kept secret

11. Kravitz files motion to dismiss based on lack of jurisdiction (that PhoneDog couldn’t satisfy the $75,000 minimum threshold) and failure to state a claim. • Court denied motion to dismiss on the jurisdictional Claim, saying there are enough issues of material fact. • Court also denies motion to dismiss the misappropriation cliams, saying they were sufficiently pled; question remains, will they survive summary judgment? • Kravitz maintains he created the personal and PhoneDog took no steps to maintain its secrecy. He also denies that it is akin to a business customer list, and that PhoneDog has any analysis or right of possession over either the Twitter account or the Twitter Followers.

12. And what about the impact of terms of service agreements? • Twitter’s terms of service grant only a license to the user; only content provided by a user is the property of the user – all other aspects, including ownership of the page itself, is retained by Twitter. • If an employer is only a licensee, (and not the owner) how can it raise the issue of trade secret? • If LinkedIn or a similar site finds a breach of the terms of service (i.e., Eagle v. Morgan case, where another employee had access to her password), it can suspend or block access to the site.

13. KEY TAKEAWAYS • Update restricted covenants (non-competes, non-solicitation, confidentiality agreements) to reflect the importance of social media to the business. • state explicitly that customers/clients that may be developed through the use of social media are company property; • names, handles, etc. used to communicate with clients are company property; and • such names, handles, etc. can’t be used post-termination to communicate with clients.

14. 2. Implement a comprehensive social media policy that not only governs the employee’s conduct on social media, but that also establishes other guidelines: • who has access to account settings and passwords; • who may edit or add content to an account; • whether the account name should incorporate the company name; and • provides for procedures for relinquishing use or access upon end of employment. 76% of companies use social networking for business, yet 45% of companies don’t have a social media policy.