NYPD Issues social media policy to stop embarrassment from private comments

Facing increased criticism over the conduct of police officials and firemen, New York City has issued strict social media policies focused on tamping down the offending comments of its officers. New York City Police Commissioner Raymond W. Kelly ordered the distribution of the new guidelines to regulate the comments and impact of the offers’ social media activities. The policy does not cover firefighters, though reports suggest a similar policy is under development.

As the New York Times reports, “police officers across the city checked their accounts to see if anything they had posted might run afoul of the new rules. Some edited their personal accounts to remove references to the department.” The Times quoted Roy T. Richter, president of the Captains Endowment Association. “Such an order is not unexpected. The only surprise is that the order was not put out before now.”

The new policy comes on the heels of incidents in which very public incidents involving social media, including racially inappropriate tweets that led to the resignation of the fire commissioner’s son. Kelly denied the policy was a direct result of the incident, saying the order’s development predated this latest incident.

Robert Gonzelez, a police training expert at John Jay College, has been quoted as saying the guidelines constitute “unauthorized censorship. Members of the NYPD are proud public officials and should be authorized to express that right on social media sites without retribution.

The NLRB has been very aggressive in voiding social media policies that interfere with the rights of workers to organize. The Operations Management Memo has found most social media policies overbroad. Among the limitations on social media policies, employees have the right to wear company logos even when protesting working conditions. Policies that prohibit their right to self-identify as employees or to wear uniforms outside of work are a violation of these rights.

Compare those policies to the NYPD guidelines as reported by the New York Times:

The policy restricts posting photos of other officers, tagging them in photos or putting photos of themselves in uniform — except at police ceremonies — on any social media site.

Employees are “urged not to disclose or allude to their status” online. Disclosing one’s employment could result in that person being ineligible for certain sensitive roles.

The New York Times correct lists other aspects of the policy as good practice and appropriate: “Do not post images of crime scenes, witness statements or other nonpublic information gained through work as a police officer; do not engage with witnesses, victims or defense lawyers; do not “friend” or “follow” minors encountered on the job.”

Once the initial bad press of online misuse fades, the issues of government limitations on employee’s social media will again rise to the surface as a significant issue for employment in the public sector. The NYPD guidelines provide fuel rather than direction for this debate.


Journalism audience, revenue, and depth all in decline suggests Pew Center study

The Pew Research Center’s Project for Excellence in Journalism paints a dismal picture regarding the transformation of American news media. The Center describes “a news industry that is more undermanned and unprepared to uncover stories, dig deep into emerging ones or to question information put into its hands” than any time in recent history. Among the findings:

  • Sports, weather and traffic now account on average for 40% of content
  • Newsroom cutbacks in 2012 put the industry down 30% since its peak in 2000
  • Some media outlets, such as Forbes magazine, use technology by a company called Narrative Science to produce content by way of algorithm
  • Media campaign reports were primarily megaphones, rather than investigative journalism

In response to the declines, the Center reports, “nearly a third of U.S. adults, 31%, have stopped turning to a news outlet because it no longer provided them with the news they were accustomed to getting.”

Pew InfographicThere is some financial restructuring of the industry as well. In most cases, however, the restructuring moves revenue away from news media and towards aggregators such as Google and Facebook. Economically this is another situation where the company providing the conduit for content receives the revenue rather than the individuals and companies providing the actual content. The other good news is the slight increase in Sunday newspaper subscriptions and the end to the decline in overall newspaper sales.

In total, however, the report makes clear that while there is more information than ever before, there is less in-depth news coverage.

In a report published last year, the Pew Center reported found that “for every $1 newspapers were gaining in digital ad revenue, they were losing $7 in print advertising” and the gap grew to $16 in print losses for every digital dollar gained by the end of the 2012. Some papers are returning to pay walls to offset the losses; others are accelerating their cost-cutting in print and reporting expenses to pay the gap.

While digital revenues continue to grow, the income is not fueling journalism. Instead, it pays for mobile devices, social media and search. While each of these has benefits, journalism has a uniquely important role in society – unfortunately that role will continue to shrink as budgets wane, reports become more superficial, audiences erode, budgets shrink in response – and the cycle goes inexorably downward.

iPad Newsstand provides some revenue to the publishers, but at a steep price to the Apple newsstand vendor. Zinio and Kindle are also out there.

Perhaps it is time to rethink what we pay for with our home entertainment dollars. Maybe the bundle of services will cover a few dozen fewer unwatched cable channels and put a few cents into the digital edition of the local paper. Certainly it is time to rethink media ownership and financing rules for the digital market.

New FTC Dot Com guide reminds firms to keep disclosures close – and disclaimers even closer

On March 12, 2013, The Federal Trade Commission released new guidance for mobile and other online advertisers that explains “how to make disclosures clear and conspicuous to avoid deception.” The announcement contains the this introduction:

Updating guidance known as Dot Com Disclosures, which was released in 2000, the new FTC staff guidance, .com Disclosures: How to Make Effective Disclosures in Digital Advertising, takes into account the expanding use of smartphones with small screens and the rise of social media marketing.  It also contains mock ads that illustrate the updated principles.

Like the original, the updated guidance emphasizes that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio, or print.

dotcom dislosuresFTC Guidance on online advertising, like that for the Endorsement Guides affecting testimonials, blogs, social media marketing and celebrity endorsements, remains premised on the ability of the FTC to identify those specific steps that are likely to violate Section 5 of the FTC Act. Section 5 (15 USC 45) prohibits “unfair or deceptive acts or practices in or affecting commerce.” The Federal Reserve summary of the rule and compliance evaluation is a very helpful tool for all advertisers, not just banks. Violations of the guidelines are not illegal, merely indicators that Section 5 has been violated. In reality, however, most enforcement actions never go to trial. The FTC enters into determinations, levies fines and establishes injunctive relief and specific performance which may significantly intrude on business practices. Most companies agree to these terms rather than facing potentially harsher and more costly litigation. As such, the guidelines are much more than mere advisory guidelines.

The new guidelines attempt to remind advertisers that disclaimers and additional terms must be near claims and specific even in the constrained space of mobile advertising:

If a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous.  Under the new guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad.  The new guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used. …

The new guidance points out that advertisers using space-constrained ads, such as on some social media platforms, must still provide disclosures necessary to prevent an ad from being deceptive, and it advises marketers to avoid conveying such disclosures through pop-ups, because they are often blocked.

The guide is long and full of detailed examples. But the list of rules is actually quite intuitive. These are probably the most important:

1.         To make a disclosure clear and conspicuous, advertisers should:

  • Place the disclosure as close as possible to the triggering claim.
  • Take account of the various devices and platforms consumers may use to view advertising and any corresponding disclosure.  If an ad is viewable on a particular device or platform, any necessary disclosures should be sufficient to prevent the ad from being misleading when viewed on that device or platform.
  • When a space-constrained ad requires a disclosure, incorporate the disclosure into the ad whenever possible.  However, when it is not possible to make a disclosure in a space-constrained ad, it may, under some circumstances, be acceptable to make the disclosure clearly and conspicuously on the page to which the ad links.
  • When using a hyperlink to lead to a disclosure,
  • make the link obvious;
  • label the hyperlink appropriately to convey the importance, nature, and relevance of the information it leads to;
  • use hyperlink styles consistently, so consumers know when a link is available;
  • place the hyperlink as close as possible to the relevant information it qualifies and make it noticeable;
  • take consumers directly to the disclosure on the click-through page;
  • assess the effectiveness of the hyperlink by monitoring click-through rates and other information about consumer use and make changes accordingly.
  • Preferably, design advertisements so that “scrolling” is not necessary in order to find a disclosure. When scrolling is necessary, use text or visual cues to encourage consumers to scroll to view the disclosure.
  • Keep abreast of empirical research about where consumers do and do not look on a screen.
  • Recognize and respond to any technological limitations or unique characteristics of a communication method when making disclosures.
  • Display disclosures before consumers make a decision to buy — e.g., before they “add to shopping cart.” Also recognize that disclosures may have to be repeated before purchase to ensure that they are adequately presented to consumers.
  • Repeat disclosures, as needed, on lengthy websites and in connection with repeated claims. Disclosures may also have to be repeated if consumers have multiple routes through a website.
  • If a product or service promoted online is intended to be (or can be) purchased from “brick and mortar” stores or from online retailers other than the advertiser itself, then any disclosure necessary to prevent deception or unfair injury should be presented in the ad itself — that is, before consumers head to a store or some other online retailer.
  • Necessary disclosures should not be relegated to “terms of use” and similar contractual agreements.
  • Prominently display disclosures so they are noticeable to consumers, and evaluate the size, color, and graphic treatment of the disclosure in relation to other parts of the webpage.
  • Review the entire ad to assess whether the disclosure is effective in light of other elements — text, graphics, hyperlinks, or sound — that might distract consumers’ attention from the disclosure.
  • Use audio disclosures when making audio claims, and present them in a volume and cadence so that consumers can hear and understand them.
  • Display visual disclosures for a duration sufficient for consumers to notice, read, and understand them.
  • Use plain language and syntax so that consumers understand the disclosures.

2.         If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of a Commission rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated. This means that if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures.

NKU Chase Law + Informatics Institute to Exhibit at the ABA TECHSHOW

NKU Chase Law + Informatics Institute will have a booth (No. 803) at the ABA TECHSHOW on April 4-6 in Chicago. As the Law + Informatics Institute continues to develop its national leadership in research and coursework integrating the regulation of information and use of technology into legal education, its participation in the expo will be an opportunity to showcase Chase and explore partnerships with cutting-edge legal technology vendors.  When registering, mention EP1315 to receive discounted registration.


Some thoughts on copyright termination – beyond the simple notice

Much has been written regarding the complexity of copyright termination. As part of an ABA webinarTermination of Copyright Grants Presented by the YLD Entertainment & Sports Industry Committee. I’ve agreed to comment on some of the hidden issues. There are very good examples and overviews of the general termination scheme, so this column focuses on the supplemental topics. Among the best overviews is: The Right to Terminate: a Musicians’ Guide to Copyright Reversion.

My co-panelist created some excellent slides. These were prepared primarily by Ramona P. DeSalvo with some additional material by Chrissie Scelsi.

  • Here is my list of concepts to remember:
  • There are three distinct categories of copyright terminations:
    • Those in their first or renewal term under the 1909 Act §304(c)
    • Those in their 20-year Copyright Term Extension under §304(d)
    • Those works transferred and created under the 1976 Act §203
    • Each of the three has slightly different implications for the copyrighted work. Be sure to use the correct rules for the correct termination.
  • Why §304(c): 17 U.S.C. § 304(c)(3) “allows an author or certain statutory successors to terminate a transfer in a pre-existing copyright after its 56th year, or at the beginning of its 19-year extended renewal term”[1] provided by passage of the 1976 Copyright Act.
  • Why §304(d): 17 U.S.C. § 304(c)(3) allows an author or certain statutory successors to terminate a transfer in a pre-existing copyright which did not take advantage of termination under §304(c) to do so at the beginning of its 20-year additional renewal term provided by passage of the Sonny Bono Copyright Term Extension Act. An author can use either provision in §304 but not both.
  • The Gap. Congress inadvertently left out terminations for assignments entered prior to Jan. 1, 1978 for works created after Jan. 1, 1978. The Copyright Office held a rulemaking and decided: “[the Copyright] Office will accept for recordation under section 203 a notice of termination of a grant agreed to before January 1, 1978, as long as the work that is the subject of the grant was not created before 1978. Whether such notices of termination fall within the scope of section 203 will ultimately be a matter to be resolved by the courts.”
    • Works in subsistence prior to Jan. 1, 1978 will be covered by §304(c)-(d).
    • This covers copyright output contracts that may have been executed much earlier than 1976 but the works kept coming – such as series novels, composer output agreements and others.
  • Work for hire excluded from termination. It is axiomatic both because the right vests in the employer as author (not assignee) and because the economic interests designed to protect authors from harsh bargaining are congressionally excluded from consideration.
    • Work for hire has two entirely independent categories of works:  “(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use [in any of nine categories] if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”
    • The comic book industry, in particular, is struggling to determine when independent comic creators were hired as employees and shifted the ownership of their creations. Similarly, some composer agreements are work for hire agreements. This determination is very fact specific.
    • Specially commissioned works must meet the definitional test. Sound recordings are not within the nine enumerated categories, so they will only be made as works for hire only if the producer in whom the copyright vests is an employee making the recording within the scope of her employment. Although the labels continue to fight this, but the law is settled.
  • Penalty provisions are agreements to the contrary. In his treatise, David Nimmer anticipated the controversy surrounding the Ray Charles estate. Ray Charles tried to get his 12 children to agree to take $500,000 each under the estate in exchange for not challenging the copyright dispositions. The court treated the agreement not to challenge as applying only to the probate, allowing a claim for copyright termination to proceed. (The court also found the claim to likely fail because of the work for hire nature of Ray Charles music composition agreements.) But Nimmer posits the contract that includes a $100 million liquidated damage award if termination occurs. Nimmer is undoubtedly correct that the court would strike down such a penalty provision.
  • Other transfers not terminated. The termination rights do not terminate the right to continue exploiting a derivative work. Most copyright transfers include a number of other provisions, and these provisions would not be terminated. Among them:
    • Use of the title of a work.
    • Right to use name, likeness and biography to promote a work.
    • Rights and obligations regarding credits for the work.
    • Trademark licenses associated with the work, including band names, logos and similar indicia.
    • These rights may not terminate even if the copyright grant is terminated and generally should not do so, absent express language, particularly where the original assignee continues to have the right to exploit derivative rights under the grant.
  • Agreements for other assets are likely not agreements to the contrary. Consistent with the rights not terminated, if the licensee of the copyrighted work bargains for trademarks and publicity rights on an exclusive basis, some may seek to make those express provisions extend beyond the copyright. Unlike penalty provisions discussed by Mr. Nimmer, these provisions may well restrict what the author can do with rights other than the copyright even after the copyright has been terminated and restored to the author.
    • Exclusive transfers of trademarks may give the publisher control over band names.
    • Exclusivity agreements could limit the ability of an author to participate in the making of a new derivative work – such as a new film version of a novel.
  • An agreement to transfer the copyright post termination will not be valid if negotiated before a valid termination notice is affected.[2]
    • Statute specifically allows renegotiation between author and original licensee which as the effect of resetting the 35-year clock for §203 transfers.
    • If it is not the author, however, then the re-negotiation becomes quite complex.
  • Testamentary transfers are not affected by any of the termination rights.
    • Grants by will are not included in §203. But inter vivos trusts are not excluded!
    • Nimmer explains that “the class of those who may claim as recipients of the terminated rights is determined as of the date the termination notice is served.” So taking advantage of the 10 year maximum notice may result in locking in the terminating class. Effective for senior authors; procedurally tricky for managing the per stirpes rights in a large family.
  • Will provisions that use terms such as copyright or royalty may not be explicit enough to include termination rights.
    • Courts are inconsistent regarding the tension between the statutory distribution of the termination right and the estate planning function.[3] Estate planning is therefore increasingly complex. A trust, and even the estate, is a different legal entity.
    • Termination rights are not themselves a testamentary asset. The statute sets out the control of the right. Like the renewal interest under the 1909 Act, it is merely an expectancy.
    • Termination notices sent out prior to death remain effective. And the rights recaptured copyright should be identified in the will.
  • Loan out companies might manage unruly families. For authors worried about the tension between the testamentary disposition and the statutory disposition, there may be one final trick. Through use of a loan-out company, an author may become a work for hire of her own business. The business assets can then be transferred in any legal manner and the work for hire nature of the relationship should extinguish termination rights in the unruly legatees. It isn’t much, but it may be better than nothing.

[1] See Bourne Co. v. MPL Communications, Inc., 675 F. Supp. 859, 861 (S.D.N.Y. 1987).

[2] See Bourne Co. v. MPL Communications, Inc., 675 F. Supp. 859, 861 (S.D.N.Y. 1987).

[3] See Ray Charles Found. v. Robinson, 2013 U.S. Dist. LEXIS 21273 (C.D. Cal. 2013); Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008); Milne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1046 (9th Cir. 2005).