Social media’s impact on the law is a bit like the Wild Wild West.  Because social media is still in its infancy, there is little precedent to provide courts with direction on how to uniformly apply existing law to the social media landscape. As a result, courts are handing down varying decisions as to the extent evidence on social media is discoverable and admissible in court.

Most recently, the Supreme Court of New York reversed a trial court’s order providing for broad discovery regarding Facebook and other social media sites.In Abrams v Pecile, 2011 NY Slip Op 03108 (April 19, 2011), the plaintiff sued for conversion (theft) and intentional infliction of emotional distress alleging that a former employee of plaintiff’s husband retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleged that the defendant refused to return the CD and photographs unless plaintiff’s husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.

While the decision was silent on the specifics, the decision inferred that the trial court granted plaintiff’s request to discover broad information contained on defendant’s Facebook and other social networking profiles. In overturning the trial court’s order, the appellate court reasoned:

[the] Court improvidently exercised its discretion in ordering plaintiff to comply with the outstanding discovery demands. With respect to defendant’s demand for access to plaintiff’s social networking accounts, no showing has been made that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (Vyas v Campbell, 4 AD3d 417, 418 [2004][internal quotation marks and citation omitted]; see also McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 [2010]). Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff’s hard drive in order to defeat plaintiff’s conversion claim. Nor has defendant shown that broad discovery concerning plaintiff’s finances, education, immigration status, and educational background is “material and necessary” (CPLR 3101[a]).

The court also ruled that “[d]iscovery of materials concerning plaintiff’s family and her husband’s business should be obtained through nonparty discovery[,]” and that the “remaining discovery demands are either overbroad or irrelevant.”  Unfortunately, the court did not provide and information about the type of content request in plaintiff’s discovery requests – or make specific findings about the admissibility of particular evidence.

So what is the take away from this decision?  At the very least, discovery requests directed toward content on social media sites should not be a fishing expedition. Like other means of discovery, courts are not inclined to allow requests that seek “All Facebook messages in defendant’s possession,” or “All photographs on plaintiff’s myspace page.” Instead, requests should seek only information that is relevant to the specific claims and defenses in the case, such as “All Facebook messages relating to the car accident alleged in paragraph 13 of plaintiff’s complaint.”

Drafting narrowly tailored discovery requests may help to provide a more certainty until the dust (law) settles in the Wild Wild West.

Earlier this month, Charlie Sheen began his attempts to trademark slogans like “winning” featured on his twitter account.  But can his tweets – limited to 140 characters or less – be afforded protection under copyright law? Probably not.

Generally, short phrases face an uphill battle when it comes to satisfying copyright’s requirement of requirement of originality. While slogans or short phrases may be entitled to  trademark protection, they generally cannot be worthy of under section 37 CFR s 202.1(a).  Tweets also generally fail to meet the requirements that qualify as an “original” work of authorship because most tweets are simply updates on what a person is doing or a brief factual statement.  While it may be possible to copyright a series of tweets if the content is organized in a unique and creative manner (as a compilation), a single stand alone tweet is unlikely to be sufficiently creative to be afforded protection.

Sorry Charlie. Your chances of trademarking “tigers blood” is significantly better than getting it copyrighted.

Florida Business and Real Estate Law Update for April 23, 2011 (Volume IV, Issue 17)

Manuel Farach

In a recent case, the Third District Court of Appeal had the opportunity to discuss sophisticated trademark issues in the context of a topic that never seems to get old: the satirical secession of the Florida Keys from the State of Florida and the establishment of the Conch Republic. But if trademark issues are in play, you can bet there is a good deal of money involved and the action is not all play.

The issue arose because of two organizations fighting over the use of the phrase “conch republic.” If the reader has any doubt that the use of the words “conch republic” is big business, a quick trip to the federal government trademark search site reveals at least 25 trademarks incorporating “conch republic” into the mark.

The details of this battle are somewhat more mundane: one group named Upper Keys Business Group sought to promote a festival under the name “Conch Republic Days: Northernmost Territories,” while a competing group, the Monroe County Tourism and Development Council, claimed a common law service mark for the name “Conch Republic Independence Celebration.”  Suit was filed in state court in Monroe County, Florida.

The Third District explained that Florida’s service and trademark statutory scheme, Fla. Stat. § 495.01 et seq., parallels and is interpreted in same fashion as the federal Lanham Act, 15 U.S.C. § 1114. Accordingly, all marks are examined for four factors:   primacy, distinctiveness, dilution and customer confusion. The first two factors go toward establishing the validity of the mark, while the second two establish damages if proven. The Third District then provided a clear, cogent analysis of this area of law, including setting forth the requirements for the distinctiveness of a mark. Using this analysis, the Third District held that the mark in question, “Conch Republic Independence Celebration,” was merely a descriptive mark and not entitled the higher protection of other marks. As a result of this decision, the claimant will need to prove secondary meaning to the mark and infringement or likelihood of customer confusion. As is common in these types of cases, there was a dissenting opinion as to what category the mark falls into.

            This is a good case for analysis of Florida trademark law, although somewhat disappointingly, the Third District did not examine the issue of a common law trademark in detail. Since the case has been remanded for further analysis by the trial court, this issue may yet get to the Florida appellate courts.

A complete list of this week’s Case Law Update is found here: Issue 17

A Galesburg woman was sentenced to 166 days in jail last week for defrauding individuals across the country using Facebook and dating sites, reports galesburg.com.

Police reports state Debie A Miller was attempting to lure men on [Facebook] and promising them with love. The catch was Miller would ask for money up front to pay for her mother’s medical expenses or to pay back loans.  Miller told police she was working with an individual in Nigeria, who would have people transfer money to Miller. The victims also told Galesburg Police they had been contacted by other individuals requesting they send money to Miller.

Police determined, “it was obvious … there are several fraudulent schemes that have been perpetrated on multiple persons with Miller being an intricate part in transferring United States currency out of the country,” the police report states.  Miller pleaded guilty to one count of theft, a Class 2 felony. In addition to jail time, Miller was ordered to pay restitution totaling $16,951.

Business and Real Estate Law Update for April 16, 2011 (Volume IV, Issue 16)

Manuel Farach

The Fourth District Court of Appeal has answered the question of whether a contract for sale of a furnished home is a contract for sale of real property or a contract for the sale of goods or both in Ge Lin v. Ecclestone Signature Homes of Palm Beach, LLC, — So.3d —-, 2011 WL 1376686 (Fla. 4^th DCA 2011).

Ge Lin contracted to purchase a furnished home for $3,350,000, of which $360,000 was the package for furniture and fixtures. The seller substantially completed the home and had the furniture in storage awaiting the closing. Buyer, however, did not close and the seller filed suit for specific performance and declaratory relief, and the buyer counterclaimed for declaratory relief the contract was unenforceable since the furniture and fixtures were not specifically listed in the contract. The trial court analyzed the dispute on whether Florida Statute § 672.201 (1), the U.C.C. statute of frauds applicable to sales of goods:

Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

After considering the totality of the circumstances, the trial court found the contract was enforceable even without the list due to the totality of the circumstances, i.e., the buyer knew the quality and quantity of furniture he was receiving and the various inspections provided a sufficient benchmark for the buyer to determine what he was receiving.

             The Fourth District applied a different analysis on appeal, finding that the “predominant nature” of the contract provided it was for the sale of real estate and not for the sale of goods, and accordingly applied the real estate statue of frauds:

 No action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of her or his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than 1 year, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, or whereby to charge any health care provider upon any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure performed by any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, or dentist licensed under chapter 466, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

             After applying the real estate statue of frauds and analyzing the subject matter of the contract, the purpose of the contract, and the situation and relation of the parties, that the contract also met the real estate statute of frauds. There is no discussion in the opinion of the relative disparity in prices allocated to personal and real property, i.e., the value of the real property was approximately ten times the value of the personal property being sold, but presumably this factor played some factor in the court’s decision this was a real estate and not a sale of goods contract.

             Practitioners with contracts for furnished properties should accordingly be careful to examine the factors the court discussed, i.e., subject matter, purpose, situation and relation of the parties, but also keep an eye out for the value of the personal versus the real property, in determining whether a contract is for the sale of goods or the sale of real estate.

The full Update for this week can be found here: Issue 16

A federal appeals court ruled Monday that former Harvard University schoolmates of Facebook founder Mark Zuckerberg can’t undo their settlement over creation of the social networking site, yahoo reports.

Tyler and Cameron Winklevoss, potrayed in the Oscar-nominated film “The Social Network,” argued their settlement with Facebook was unfair because the company hid information from them during talks. The 9th U.S. Circuit Court of Appeals disagreed.  In the case styled Facebook Inc v. ConnectU Inc., a three judge panel determined that the Winklevoss brothers were sophisticated negotiators aided by a team of lawyers, and therefore savvy enough to understand what they were agreeing to when they signed the agreement with Facebook in 2008. “At some point, litigation must come to an end,” Judge Kozinski wrote. “That point has now been reached.”

The deal called for a $20 million cash payment and a partial ownership of Facebook. The settlement is now worth more than $160 million because of Facebook’s increased valuation. An attorney for the brothers, Jerome Falk Jr., said on Monday his clients would seek a rehearing before a larger, “en banc” group of 9th Circuit judges – which could overturn the three judge panel’s decision.

For the second time in as many weeks, Facebook has been sued for content posted on its social networking website by a third party.  Crimesider reports that the family of New York murder victim Caroline Wimmer sued Facebook after a paramedic took a cell phone photo of the crime scene and posted it on the social networking website.

One of the first on the scene, former emergency medical technician Mark Musarella, used his cell phone camera to snap a grisly photo of the corpse, which he then uploaded to Facebook. He pleaded guilty to official misconduct and lost his job, reports CBS station WCBS. . . . A civil suit now names Musarella and Facebook.

Facebook reports that it has not been served with the lawsuit and therefore will not comment.  If and when Facebook it served, it may be shielded under the 1996 Communications Decency Act, which protects operators of Internet services to the extent they are not to be construed as publishers, and thus not legally liable for the words of third parties who use their services.

Former Justice Department prosecutor and U.S. Senate candidate sued both Facebook and founder Mark Zuckerberg on Friday for over $1 billion after the social networking website allegedly failed to remove a page calling for a third intifada against Israel’s Jewish population swiftly enough, Tech Crunch reports.

[Larry] Klayman, who founded controversial law firm Judicial Watch as well as political advocacy group Freedom Watch, alleges that Zuckerberg and Facebook willfully kept a page calling for a third Palestinian intifada against Jews online to “further their revenues and the net worth” of the company. The page, which was removed on March 29 because, according to Facebook, it indeed made “direct calls for violence” in violation of its policies.

On the page, Palestinians were urged to take to the streets after Friday prayers on May 15, 2011, and commence an uprising in the vein of the first two popular intifadas. “Judgment Day will be brought upon us only once the Muslims have killed all of the Jews,” read the call. The page reportedly garnered more than 340,000 fans.