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Facebook Ads can be Electronic Mail for CAN-SPAM Purposes

Dana — Tue, 24 May 2011 02:14:54 +0000

When I wrote about the CAN-SPAM Act of 2003 and the effort to limit unsolicited commercial e-mail (Commercial E-mail and CAN-SPAM: What You Need to Know), I noted that “One of the greatest challenges in complying with CAN-SPAM is figuring out exactly which communications are covered.” Much to my surprise, the U.S. District Court for the Northern District of California recently held that that certain Facebook ads were electronic mail for the purposes of CAN-SPAM!

In Facebook, Inc. v. MaxBounty, Inc., Facebook sued MaxBounty, alleging that MaxBounty, through its network of affiliates, created fake Facebook pages that are intended to re-direct unsuspecting Facebook users away from Facebook.com to third-party commercial sites. Facebook’s claims included, among others, that MaxBounty’s actions constitute CAN-SPAM violations. MaxBounty disagreed, stating that Facebook ads are not e-mail and, thus, are not covered by CAN-SPAM.

Interestingly, the court sided with Facebook, noting that:

“[T]he overarching intent of this legislation is to safeguard the convenience and efficiency of the electronic messaging system, and to curtail overburdening of the system’s infrastructure….”
An “electronic mail message” need not be formatted like traditional e-mail or delivered to an in-box.
The essential characteristic of an “electronic mail message” is that its destination must be a unique electronic mail address.
MaxBounty’s induced Facebook users to transmit pages to the the user’s “wall,” the “news feed” or “home” page of the user’s friends, the Facebook inbox of the user’s friends, and to users’ external e-mail addresses.
These transmissions required some routing by Facebook, making the transmissions electronic mail.

Bottom line: False or misleading information that is transmitted via social media sites, rather than traditional e-mail, can be the basis for a CAN-SPAM violation.

Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.

Don’t Use Social Media if You Have Something to Hide

Dana — Mon, 02 May 2011 19:34:53 +0000

A client sells high-quality collectibles manufactured from authentic sports-related materials (game-used balls, uniforms, arena flooring, stadium seats, etc.). The company ensures that all materials are licensed by the applicable university or professional sports organizations so it can use the organizations’ names and trademarks in promotional activities. Some competitors do not pay for the required licenses, however – and one of these recently was caught as the result of a Groupon promotion.

A friend of the client’s CEO received a Groupon promotion offering a huge discount on items that, the friend knew, competed with those offered by my client. At the client’s request, I contacted the licensing organization’s in-house lawyer to let him know that the competitor was using trademarks (apparently) without a license to do so.

I was pleasantly surprised, and somewhat amazed, when the lawyer immediately replied that he was already working on a cease-and-desist letter. The reason: Over the same weekend, he had received an e-mail for the same Groupon promotion!

Moral: It’s inappropriate to use others’ trademarks without required licenses, and it’s dangerous to advertise such use on a website, but it’s foolish, at best, to promote such use via social media.

Leveraging Social Media Platforms – Why Big Business Cares

Dana — Tue, 26 Apr 2011 05:17:59 +0000

This follow-up to Leveraging Social Media Platforms – Finding the “White Space” discusses why big business cares about social media – and, thus, why there are lots of opportunities for social-media startups.

Bipul Sinha, Lightspeed Venture Partners

1st generation was websites found via Google.
2nd generation was people contributing to websites.
Now we’re in the 3rd generation: People are connected, reducing the cost of distribution.

Ralf VonSosen, InsideView

Social is a new platform, like the telephone.
We’re infants in this environment / ecosystem.

Cindy Padnos, Illuminate Ventures

In business, social is need-based rather than personal.
There are no analytics that allow a company to look at is overall social marketing presence for the purposes of forecasting and making recommendations.

Mark Yolton, SAP Community Network

There are no clear best practices.
There are no good metrics for business value.

Leveraging Social Media Platforms – Finding the “White Space”

Dana — Fri, 22 Apr 2011 00:42:05 +0000

Last evening I moderated “Leveraging Social Media Platforms”, a panel discussion in the Silicon Valley Association of Startup Entrepreneurs (SVASE) East Bay Series. An audience member asked where the “white space” is, i.e., which business opportunities for corporate use of social media currently are not being addressed. The following is a summary of the panel members’ answers.

Cindy Padnos, Illuminate Ventures

Helping businesses determine their social rankings
Creating special offerings for fans
Leveraging social media into other areas, such as sales
Identifying experts to solve problems

Ralf VonSosen, InsideView

Evaluating the value chain
Connecting social pieces (e.g., various SalesForce acquisitions) to one another

Bipul Sinha, Lightspeed Venture Partners

“Social utilities” – using the viral effect to apply leverage to activities that previously were done at websites
“Discovery traffic” – using social media to identify people who are early in the decision process (as contrasted to “intent traffic”, i.e., people who are ready to buy and, thus, use Google)
Figuring out how to monetize

Mark Yolton, SAP Community Network

Metrics – especially sentiment
Managing a social profile across all platforms
Gamification (mechanical aspects)
Location
Mobility

Follow-up: Leveraging Social Media Platforms – Why Big Business Cares

SVASE East Bay Series 4/20/11 – Leveraging Social Media Platforms

Dana — Tue, 05 Apr 2011 17:02:35 +0000

The evening of Wednesday, April 20, I will moderate “Leveraging Social Media Platforms”, a program in the East Bay Series offered by the Silicon Valley Association of Startup Entrepreneurs (SVASE). Program description:

Are you aware of how big business is utilizing social media? The massive consumer adoption of social media has migrated to the enterprise. From internally built corporate communities to leveraging Facebook, LinkedIn, Twitter, and others, our panel will discuss how companies are adopting these platforms to increase traffic, conversions, and profit – and how entrepreneurs can take advantage of this trend to build successful businesses.

The panel will include two venture capitalists and two representatives from companies with intensive involvement in social media:

The event will be held at the beautiful Crow Canyon Country Club in Danville starting at 6 pm and will include a tasty buffet dinner.

Follow-up: Leveraging Social Media Platforms – Finding the “White Space”

WSJ: Lots of Money for Social Startups

Dana — Fri, 25 Mar 2011 22:09:07 +0000

In an article published yesterday (“Money Rushes Into Social Start-Ups”), the Wall Street Journal reported that VCs are investing in companies that are taking social networking from computers to mobile phones. The rationale, according to the article (emphasis added):

Behind the spurt of new services is also the idea that the phone, carried by people at all times, can reinvent the notion of a social network by sharing more real-time information about where people are, what they’re seeing and even who they’re around.

WSJ: Web Start-Ups Get Upper Hand Over Investors

Dana — Fri, 11 Mar 2011 03:43:22 +0000

In an article published today (“Web Start-Ups Get Upper Hand Over Investors”), the Wall Street Journal reported (emphasis added) that “As venture capitalists scramble to get a piece of Silicon Valley’s new Web boom, entrepreneurs … are finding they have the upper hand.”

Here are some of the points the article makes about the latest Web boom:

As VCs search for the next Facebook or Twitter, some entrepreneurs are positioned to have a greater say about how much they raise and deal terms.
Bidding among VCs is driving up the price of many deals.
Angel investors are driving up the prices of the tiniest early-stage companies.
Some entrepreneurs are taking advantage of the situation by seeking the best advisors rather than the greatest amount of money.

Wikileaks and Apple – an Opinion

Dana — Thu, 30 Dec 2010 19:25:02 +0000

The following is taken almost verbatim from my answer to a Quora question and the comments that followed. Q. Was the WikiLeaks iPhone app really violating the Apple App Store “Terms of Service”? Apple spokesperson stated that “Apps must comply with local laws and may not put an individual or group in harm’s way.” Is that actually the case?

A. Yes (in my opinion). Section 3.2(b) of the iPhone Developer Program License Agreement says:

You will not use the Apple Software or any services for any unlawful or illegal activity, nor to develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful or illegal act[.]

A comment was posted:

Considering there has been no decision whatever on the legality of the matter, I fail to see how anyone could say with certainty that it was, in fact, a violation. In fact, considering that even the U.S. Government hasn’t brought legal action on the matter against Wikileaks, it would seem this is a non-issue for them. Then again, why bother with legal action when you can leverage your power over the corporations in your country to do your bidding unethically, eh?

I responded as follows:

Let’s be clear that I was answering the question as to whether Apple’s terms require adherence to applicable law, which they do.

Two comments have raised a separate issue, whether Apple should be allowed to invoke the adherence-to-law provision in the absence of a legal decision that a law has been violated. The following is my opinion on this issue.

In the U.S. there are many fundamental rights, including the right to express oneself (free speech). However, there is not, and there should not be, a fundamental right to express oneself via (publish) an iPhone app. (WikiLeaks succeeded in distributing the documents in question without an app.) Rights pertaining to iPhone apps should be specified in agreements among app developers, Apple, and app users.

Adherence-to-law provisions exist to help providers of products and services extricate themselves quickly and easily from potential legal liability caused by others. (Such provisions are routine in website terms of service, for example, and I would recommend such a provision to any client that was in a position similar to Apple’s.)

If Apple were limited to terminating the agreement only after a legal decision (presumably either civil or criminal) were delivered, Apple would be placed in an untenable position: It would have to sit around for years waiting for a decision to be rendered, the whole time increasing the likelihood that it, too, would be found liable for contributing to whatever illegal activity took place.

I can see how the situation would be different if there were serious doubts about whether WikiLeaks violated any laws. In this situation, however, I believe there is little doubt.

In summary, I believe that Apple’s position is prudent from the business perspective and is not unethical.

Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.

What Lawyers Want from Social Media

Dana — Mon, 27 Sep 2010 20:25:27 +0000

As previewed in last Friday’s post, over the weekend I presented “Social Media for Lawyers” with colleagues Mark Ressa and Brett Burlison at the State Bar of California Annual Meeting.

I estimate that we had approximately 60 attendees. (Pretty good, considering that there were prior presentations on social media at the four-day conference!)

Attendees’ area of greatest interest was search engine optimization (SEO) - how to show up on the first page (preferably, high on the first page) of relevant Google searches.

Their standard question / concern was how much money and time is required for an effective (i.e., business-generating) social-media presence. (Our consensus: Money can vary greatly among lawyers and firms. The time requirement will be measured in hours, rather than minutes, per week.)

Their greatest fear was negative online reviews. This is not a concern on one’s own blog, where comments can be reviewed and filtered, but is a real risk on sites that actively invite client reviews, such as Yelp and Avvo.

One attendee – who doesn’t even have an active social media presence – explained that a service contacted her about a negative online review that an anonymous person had posted somewhere. Based on the facts that were stated, the lawyer could tell that it was not a review by a real client. I opined that the negative review probably was not a random event – it probably was planted by the service that contacted her about removing it!

The slides from our presentation (all 73 of them!) are available as a Free Download using the Sign Up button in the sidebar under the title “Social Media for Lawyers – State Bar of California 09-25-2010″.

Presenting “Social Media for Lawyers” at State Bar Annual Meeting

Dana — Thu, 23 Sep 2010 18:43:57 +0000

On Saturday (September 25), at 2:15 pm, I will be on a panel presenting “Social Media for Lawyers” at the State Bar of California’s 2010 Annual Meeting. With 25% of my new clients during the past year coming directly from my online activities, I have been asked to help fellow lawyers understand that the law must be practiced with an eye on the future, rather than being stuck in the past.

As the sole business / transactional lawyer on the panel (Mark Ressa practices family law, and Brett Burlison is a personal injury lawyer), I have a different perspective from that of my colleagues. The topics that I will discuss include:

Blogging successfully
Using social media sites (LinkedIn, Avvo) to generate blog traffic
Developing an effective social media methodology (why, who, what, where, when, how)
Complying with ethical requirements (testimonials, confidentiality)

* * *

Follow-up: What Lawyers Want from Social Media discusses what I saw and learned at the session and provides access to our PowerPoint slides.