When eager Tivity-seekers visit the network’s website, they are greeted with the message “[i]nterested? Get on our waiting list and we’ll bring Tivity to you as soon as it’s ready. Like a freshly baked cookie, except it’ll make you thinner.”  What is happening while this treat is being prepared?  For starters, like with most start-ups, the founders have been confronting numerous legal issues.  Stemming from the many start-ups recently formed and the prevalence of initial legal issues with which their founders are faced, a Wall Street Journal’s Venture Capital Dispatch blogger has recently pointed out that on one law firm’s website, entrepreneurs “can get forms that show how to create a Delaware “C” corporation. They can also generate a term sheet, based on model documents from the National Venture Capital Association, that could guide them as they negotiate seed funding from an investor.”  While the incorporation and negotiation of funding processes might seem straightforward enough to navigate, many other issues are involved in beginning a start-up.  For example, the founders of tech start-ups must also take care to protect their intellectual property.

After incorporating, the Tivity co-founders registered a service mark with the United States Patent and Trademark Office (USPTO).  While a trademark refers to goods and products, a service mark refers to “any word, name, symbol, or device, or any combination thereof,” which is either used or will be used by someone in commerce who applies to register, in order to “identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown.”  15 U.S.C. § 1127. The name Tivity is a unique service mark, containing a distinctive symbol.  Its colorful and clever logo contains a play on the arrangement of Tivity’s inner letters, “i v i.”  The outer “i” characters are dressed up to look like stick figures, and the “v” resembles the path of a ball being bounced between them.  Because of this ingenious crea‘tivity,’ it was essential for the co-founders to register their service mark in order to prevent future businesspeople from using such a name or symbol to describe similar operations.

With its business model intact, programmers and software engineers developed the network’s platform, and various non-disclosure and confidentiality agreements were signed.  It is vital for the ideas behind the software to remain property and trade secrets of Tivity.  Generally speaking, trade secrets can be any kind of “financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.” 18 U.S.C. § 1839(3).  Trade secrets can be subject to protection if “the owner thereof has taken reasonable measures to keep such information secret; and the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.”  Id.  With proper agreements in place, it can become easier for a company to bring a claim of trade secret misappropriation, as it can argue that reasonable steps were taken to protect its confidential information.

More than an online-only tech start-up, Tivity faces an additional set of legal challenges.  Because the socially active network lures people online only to push them out into the real world, not only must virtual world related legal issues be sorted, so must those that lurk in reality.  Since Tivity’s success hinges on activities that actually take place, much work must be done in terms of building relationships with venues whose spaces will be utilized.  Once a list of venues is compiled, the compilation might be protectable as a trade secret, depending on whether it gives Tivity a competitive advantage in the marketplace and the level of measures taken to guard its confidential nature.

Once this sampling of legal issues, among others, is addressed and the software is perfected, Tivity users will be able to host, create, and join activities.  Before you know it, you will be able to build a network of athletic friends with whom you can enjoy an active lifestyle.

 

 

Left to their own devices, universities and professional sports leagues have taken different approaches to controlling athlete social media use.  Most notably, several college football coaches banned the use of Twitter by their student-athletes this season.  Most professional leagues, including the NBA, only ban social media during games and for a short time span before and after the game is played.

To some, schools and leagues may be violating one’s right to free speech.  To others, especially coaches and league executives, athletes are abusing their right to free speech and the athletes deserve punishment when they harm a school or team’s reputation.

Yuri Wright’s predicament begs the question – is there any justification for potentially ruining a young student-athlete’s future by expelling them for violating social media policies?  Arguments can be made either way.  Wright had received numerous warnings from his school administration to cease tweeting such vulgar content.  However, he is also a teenager given an unlimited platform to express himself.  While this issue of social media use radiates throughout professional, college, and now high school sports, one can argue that we should seek to educate these athletes on how to make the most positive use of social media and not punish or completely take away their expression.  Only time will tell how this area of sports will be regulated.

For further discussion surrounding this topic, consider attending the 16th Annual Fordham Sports Law Symposium at Fordham University School of Law on March 30, 2012.

The Fordham Sports Law Forum is dedicated to bringing interesting issues in sports law to the Fordham legal community. Each week, in conjunction with the Intellectual Property, Media & Entertainment Law Journal, members of the Fordham Sports Law Forum write posts about current sports law issues and events.

Katherine DeStefano graduated from Georgetown University where she also served as head team manager for the Georgetown women’s basketball team for four years. Katherine is the Vice President for the Fordham Sports Law Symposium taking place this spring.

So what’s an attorney to do?  One thing is sure: attorneys need to focus not only on making the discovery request for social media information, but also on what or who they will need to present to the court in order to introduce the social media content obtained in discovery at trial.

Or, an attorney can simply avoid the rules altogether and keep the fight out of court.  To avoid the difficulties of introducing this evidence at a trial and the added work involved, some parties and their attorneys have turned instead to using these memorialized errors in judgment as a bargaining chip in negotiations, particularly in family court proceedings.  One survey noted that Facebook was the “unrivaled leader for online divorce evidence.”  Moreover, harassing material posted on social media sites is also being used by courts to grant restraining orders, preventing the posting of more harassing material.

Applying the traditional rules of evidence to modern methods of communication seems to be working okay right now, but the increasing use of social media, e-communication, online phone service, and other alternatives to traditional face-to-face conversations, may soon force courts to reevaluate how they evaluate this type of evidence.

Disclaimer: While official courts may not pay much attention to social media evidence, employers certainly do.  Nothing in this blog should be used to argue with an employer that the person in the picture is not, in fact, you.  Listen to the recruiters and do yourself a favor, Google yourself.

 

Of course, when the conversation meanders into the arena of regulating content pre-posting, overarching concerns of interference with the First Amendment rear their complicated heads.  However, the Supreme Court has consistently recognized that freedom of speech is not an absolute right, but rather the benefit derived from the contentious speech must be weighed against the larger societal interests in morality and public order.  The Supreme Court has already balanced those interests in several classes of speech, now deemed unprotected: lewd and vulgar speech (in the school context), defamation, libel, fighting words, inciting lawless action, and true threats.  Furthermore, as CDA was enacted with the purpose of encouraging private efforts to deal with internet indecency, state action may not be implicated at all, eliminating the absolute starting point in any First Amendment challenge.

Fundamental notions of individual autonomy underlie the First Amendment right to free speech.  However, referring to crowds of online bullies, known as “mobs,” who target specific groups, Professor Danielle Citron explains, “[r]estraining a mob’s most destructive assaults is essential to defending the expressive autonomy and equality of its victims.  Preventing mobs from driving vulnerable people offline would ‘advance the reasons why we protect free speech in the first place,’ even though it would inevitably chill some speech of online mobs.”

Even if First Amendment is not an issue, the idea of an ISP snooping around in the content of an online post, and possibly altering the content if necessary, seems to strike a chord with basic notions of privacy which are also tied to personal autonomy.  However, traditional privacy rights “protect[ ] the individual against incursion of the community, based on respect for the individual’s personhood or autonomy.”  Accordingly, once, and if, an individual voluntarily releases (or at least attempts to release) information to the online community, there is no more fear of unwanted community invasion.

So, to recap: internet service providers have the capabilities to filter the bullying material, Congress has given the go-ahead, and the First Amendment appears to erect no barrier.  Considering the devastating costs of inaction, what are we waiting for?

What’s the Harm?

Many parents and educators are concerned that allowing students unfettered access to all the information on the Internet may do more harm than good. Advocates of Internet filtering in schools raise a number of very real concerns. Teachers frequently argue that open Internet access is a distraction in the classroom, with students browsing Facebook and Twitter instead of paying attention to the material. Others worry about children accessing obscene or pornographic material online.

Perhaps most troubling is the role the Internet has come to play in bullying and harassment, highlighted by the series of high-profile suicides in the last few years. For example, thirteen year-old Megan Meier committed suicide in 2006 after a classmate and the classmate’s mother created a fake MySpace account and posted hurtful messages. Just last month, a gay fourteen year-old boy, Jamey Rodemeyer, who had been tormented for the past 12 months by cyberbullies, killed himself coincidentally on the eve of the National Anti-Bullying Summit.* Advocates of Internet filters argue that blocking access to social media sites in schools could help prevent tragedies like these by setting the parameters for appropriate behaviors in school.

Introducing CIPA

Congressional efforts to address these concerns have often been hampered by the First Amendment’s protection of free speech. In the late 1990s, legislators passed the Communications Decency Act of 1996 and the Children’s Online Privacy Protection Act of 1998, to limit children’s exposure to child pornography and explicit content online. The Supreme Court struck down both of these laws as unconstitutional limitations on free speech. Then, in 2000, President Clinton signed the Children’s Internet Protection Act (“CIPA”) into law. CIPA achieves its goals, and circumvents the 1^st Amendment, by attaching conditions to the universal service fund discounts (also called “E-rate discounts”) used by schools and libraries to purchase telecommunications and Internet services.  The law requires K-12 schools and libraries using E-Rate discounts to operate “a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are (I) obscene, (II) child pornography, or (III) harmful to minors.” Each school or library to which CIPA applies must have an Internet safety policy in place to screen or block “inappropriate material” that may not be accessed by minors. Such filtering technology must be employed “during any use of such computers by minors.”

In some instances, CIPA explicitly defines the type of content that must be filtered. For example, the act defines material that is “harmful to minors” as: “any picture, image, graphic image file, or other visual depiction that – (i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suit able for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.” However, In other instances, the statute provides for broad discretion at the local level. For example, it provides that “a determination regarding what matter is inappropriate for minors shall be made by the school board, local educational agency, library, or other United States authority responsible for making the determination. No agency or instrumentality of the Government may – (a) establish criteria for making such determination; (b) review agency determination made by the certifying school, school board, local educational agency, library, or other authority; or (c) consider the criteria employed by the certifying school, school board, educational agency, library, or other authority in the administration” of the act. CIPA dictates what is “harmful” to minors, but not what is “inappropriate.” Thus, the extent of Internet filtering remains discretionary.

The American Library Association (ALA) and the American Civil Liberties Union (ACLU) were quick to challenge CIPA, on the grounds that the law required libraries to unconstitutionally block access to constitutionally protected information on the Internet. They argued that no filtering technology was sophisticated enough to differentiate between constitutionally protected speech and illegal speech on the Internet. A three judge panel of the U.S. District Court for the Eastern District of Pennsylvania agreed, noting that “in view of the severe limitations of filtering technology and the existence of these less restrictive alternatives [including making filtering software optional or supervising users directly], we conclude that it is not possible for a public library to comply with CIPA without blocking a very substantial amount of constitutionally protected speech, in violation of the First Amendment.”

On appeal, however, the Supreme Court upheld the law as a constitutional condition imposed in exchange for government funding. In United States v. American Library Association, Inc., 539 U.S. 194 (2003), Chief Justice William Rehnquist concluded that it was reasonable, given the quantity of material on the Internet and the library’s traditional role in identifying material suitable for inclusion, for a library to exclude certain categories of content, even though filtering software tended to erroneously block some constitutionally protected speech outside the categories intended to be blocked. If a patron encountered a blocked site, he or she could always ask a librarian to unblock it or, at least in the case of adults, disable the filter. Furthermore, the federal assistance programs were intended to help public libraries fulfill their traditional role of obtaining quality materials for educational and informational purposes. Therefore, Congress could validly insist that these public funds be spent for the purposes for which they were authorized.

CIPA Impacting Student Development

Despite this ruling, many remain critical of CIPA’s broad implementation in schools and libraries. The law does nothing to prohibit additional filtering that blocks Internet access beyond what its terms require. According to the American Association of School Librarians, “Students must develop skills to evaluate information from all types of sources in multiple formats, including the Internet. Relying solely on filters does not teach young citizens how to be savvy searchers or how to evaluate the accuracy of information.” Promoting free access to information is also essential to the development of young American citizens.  Critics point out that the Internet can serve as a valuable tool to enhance students’ educational experience. Social networking sites may foster collaboration on group projects for class and participation in extracurricular activities.

Further, the Internet and social media are playing an increasing role in shaping global affairs, particularly in light of the uprising of the Arab Spring in countries like Egypt. On the other hand, advocates of filtering may well point to the YouTube videos of Anwar Al-Awlaki to support their argument that the Internet can do just as much harm as good. Thus, as a simple Internet search will reveal, the debate over Internet filtering continues as students, teachers, and the rest of the world increasingly rely on online resources.

*For more on cyberbullying, be sure to read this month’s “From the Desk of the Editor” feature.