Twit Happens: Tips To Overcome Legal Dangers With Video On Twitter

Twit Happens: Tips To Overcome Legal Dangers With Video On Twitter

I interviewed Internet technology and intellectual property attorney Evan Brown about the most important legal issues today when it pertains to businesses doing twitter and video marketing.  Evan talked with me about social media legal issues and gave advice as to how to select an attorney to handle your own legal needs with it comes to social media.


The following are excerpts taken from my webcam interview with Evan.

Legal Issues Today With Twitter Video Marketing

Twit Happens: Tips To Overcome Legal Dangers With Video On TwitterGrant: what would you consider to be the most important legal issues today with using twitter for business purposes?

Evan: They're the same issues that you would have with anybody using twitter, really. It's very easy to put up content on twitter; there's very little preparation that needs to go into what you're going to say. So, I think the over-arching issue for companies, is to remember how using twitter can affect their brand

Not only does a company need to be aware of what a company is saying about it's own brand, it's own goods, or services, or products – or what have you, to people in the marketplace, who may follow that company on twitter; but it also needs to be careful about what it's saying about other companies, other participants in the marketplace. So in this whole mixture of things that could possibly go wrong from a legal standpoint, I would say protecting the brand is probably the biggest single legal issue that could arise from twitter.

Grant: Now that video is capable of showing up right in twitter (at twitter.com), do you envision any new scenarios with this technology that could present legal problems for businesses?

Evan: Yes. It's really that lack of any kind of lag time, or real period for there to be much thought as to what goes out in the twitter stream, or in these series of tweets. Conceivably, way back in 2007, when the first users of twitter emerged on the scene, you could have put a video in YouTube; you could have shortened the URL to it. I guess back in those days, Tiny URL was your only choice for these things. But today, it's much easier in a lot of different ways to put out video, and to use video in connection with twitter.

Looking at it from a risk-management standpoint, it's the fact that there's less time for it to be as much deliberate thought into what's going on with the video. It can just get out there; and that can present those problems with branding. Like, saying something that's incorrect about your own goods or services; or saying something that is not true, and is misrepresenting, or even libelous, defamatory about a competitor's goods and services.

Then, of course, and this is a whole area we can talk about standing alone, are the copyright issues with all of this stuff. For example, if you're going to be taking video from other places – not a video that you're just shooting on the side or on the spot right there – but, mixing it into a larger work, and then putting that into the twitter stream. The copyright questions present a set of scenarios that we need to also think very seriously about.

Grant: Do you find that most people (and most businesses) still don't think about (or arent' even aware of) the legal consequences with copyright infringement, with trademark infringement, with violating right of privacy or right of publicity – with twitter or any other social media?

Evan: Yes. Something I like to tell clients often and when I'm giving presentations on this, or with anything that has to do with internet law, so to speak, is this: There's really no meaningful reason as to why we shouldn't think of the legal consequences to what we do online, as being any different to what we do in the everyday, brick-and-mortar world. That includes if you say something defamatory in a tweet; and there's actually been some litigation over this.

Grant: What has been the outcome of those cases? Have the rulings generally been in favor of the twitterer or the "twitted" or "twitee?”

Evan: Fortunately, it looks like most of this litigation has gone in favor of the person using twitter to speak. A lot of these cases have either been settled out, or have been dismissed. If you defame someone on twitter, the question of whether or not what you said is defamatory, and the extent to which it harms somebody else's reputation. It doesn't make any difference in the eyes of the law just because it was done through twitter.

It's the same thing with copyright infringement. Yes, it's much easier to infringe copyright, using digital technology. We all now have these wonderful tools that just come loaded onto the machines that we buy now to edit video. So today, anybody with just an average amount of technological savvy can create really good content very easily, and get it out to everyone. Just because video is now done on the cheap, it doesn't change the question of whether or not it's copyright infringement. It's no different in the eyes of the law versus whether or not you, ten years ago, had to buy $50,000 of very expense editing equipment to do the same thing.

So, the consequences are the same, because the opportunities for either infringing, or making some kind of false representation about your brand or someone else's brand, or being defamatory, or any of these things… because it's so much easier to do that quickly, and without as much inter-mediation between publisher and the user, or the consumer of that content – that's how the problems and the risks can be elevated and made more poignant.

Select An Attorney Familiar With Twitter

Grant: What criteria should someone look for in selecting an attorney to deal with a case involving twitter video marketing?

Evan: I think the obvious one is you should have an attorney who is familiar with twitter. First of all, it'd be a pretty good idea to know what twitter is. Even though the latest figures say that there are something like 165 million people on twitter, that's still not everybody; and lawyers generally are a, I guess you could say, a conservative bunch at least when it comes to the adoption of technology. So the clear thing is to have a lawyer who understands twitter, understands how it fits into the larger picture of social media; and even beyond that, what social media really means in our community, in our culture, in our society at large.

Take what I'm saying perhaps with a grain of salt, because I've been on twitter since 2007; I love it, I've been a blogger for 6 years, I was a podcaster way back in the early days of podcasting. So, my perspective on this is: In able for me to advise my clients on these issues, and to understand the ways that the legal implications can translate into real business consequences, an attorney needs to understand how it all fits together. I understand that really is not something that's unique when it comes to an attorney advising on technological issues, but you need to have skilled counsel who understands the overall human context in which any situation that you're seeking advice on works, how that operates.

For example: If you run a trucking company, you want somebody who understands the trucking industry. If you have an issue with a horse, then you want a lawyer who understands horses, and how horse racing and how the buying and selling horses works.

The same thing goes with advising someone on social media or technology issues. Because social media is growing and changing so quickly, so dynamically in our culture, and influencing our culture, it's important that legal counsel understand how it all fits together.

Social Media And The Law – Predictions

Grant: Any predictions on what do you think is going to be at the forefront of legal issues with twitter; and maybe with social media in general – in the next year and the years to come?

Evan: One of the big trends we're seeing, obviously, is all of the different cool things you can do today with mobile technology and other location-based technologies. The obvious examples are like Foursquare, and location features of twitter that have been a fairly recent part of this as well. There are all kinds of interesting things to think about when it comes to the way that mobile technology can affect things like our privacy. Not only keeping us safe, so that somebody who may want to do us harm, we're protected from that person knowing the information. But even on a more general level, and perhaps more relevant to the everyday consumer, is the way that information about what we do and where we are and who we're interacting with and all of that stuff, the way that companies can use that to advertise to use and marketing to us and sell us goods and services. We're going to see a lot of interesting developments – not only in the way the courts handle disputes arising over these technologies, but also in the ways that the legislature may respond by enacting new laws that protect our privacy in ways that they haven't been protected before.

Call For Social Responsibility And Industry Self-Regulation

Grant: Then is it our job, as people who are passionate about this space, and also understand the law and how to be legally responsible, to educate the people who make the law? Now it sounds like that's a bit of a challenge to do, but it sounds like it's going to be more and more important; and, how do we do that?

Evan: First and foremost, if we're not prepared to take action, then at least we need to be aware (and make our peers aware) of what's going on – with some of the crazy legislation that gets proposed, and some of the good legislation as well – to foster creativity. I'm thinking in terms of some of the copyright statutes and things like that. If a person really wants to take action, they do not have to act alone. There are some wonderful organizations out there that you can get involved with. If anything, they're at least great information resources for what's new and what's developing. The Electronic Frontier Foundation is an organization that I really believe in what they're doing. They take a very pro-privacy, pro-individual freedoms perspective on all of these things. It's important to do this, to stay informed; and if you want to take action, there are organizations like EFF that certainly provide the vehicles and resources for us to do that as well.

We certainly have to keep our eyes on things, because the quality of our experience in all of these things [with social media] depends on how much freedom we have, and how much we can feel safe – going out there and venturing and doing all these things that we feel, because of our creative impulses, to do.

About Evan Brown & This Week In Law

Twit Happens: Tips To Overcome Legal Dangers With Video On TwitterEvan Brown is a technology and intellectual property attorney in Chicago, with practice focusing heavily on Internet Law. Evan regular blogs about law and technology issues, and is a perennial guest on the This Week in Law show, which is available via audio podcast and video. You can follow Evan Brown on twitter @internetcases, and on Facebook.


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