Jack Bernard on Legalities of Social Media

Jack Bernard presented to the University of Michigan Communicators Forum on June 15, 2010.

TOPIC: IP – social media
TITLE: Media in a Brave New World

There were tech issues, as in the slides projection system didn’t work, through no fault of his own, and Jack bravely and expertly presented the entire talk without slides, without notes, from memory, creating visual aids and supports as he went along (like this drawing he created as an illustration of intellectual property rights and then titled “Obama in Utero”).

Jack Bernard & "Obama in Utero"

The complete ROUGH notes are below, but the basic thesis, as I understood it, came down to this.


If It's Not Safe ...

“If it’s not safe, I won’t do it, and I won’t let others do it!”


instant gratification era
evoke a story by referring to someone else’s title

social media has a life of it’s own
rumors of Microsoft and Google running the show

social media has turned things on its head
we used to get paid to produce pitch
now pitch is being produced for free, but we have to manage it

social media starts with email
being able to retract a message $me
5th grade – impassioned piece of doggerel slipped into beloved’s backpack, then got it back

easy to do
lack of thorough editing
no way to undo
“for me it’s a source of entertainment”

earlier life: student conflict resolution
student judicial affairs presentation
featured presenter gave amazing speech, the sort you wish you could do forever after
thank you to 3,000
reply to all from grad student “couldn’t remember your name, the sex was amazing”
deafening silence
never heard from him again

lack of comfort in using the technology brought problems

blogs, twitter >> addiction to knowledge, to being social
3 yr old Palm to give wife calendar access without INet


going to use his new iPhone, can’t use Blackberry because he can’t enlarge it enough
his clients don’t want to wait until he gets back to the office

people and how we shape our society, our interactions

can’t drive, miserable at sports, can’t read the E at the top of the vision chart
his high school, innovative
no walls, book shelves, always a din
classroom areas around this “Pit”
(didn’t learn to read until he was almost 14 years old)
“it’s a romantic experience for me, books”
studying Spanish in 9th grade, peon me
“what are you trying to do? sniff the glue out of this?”
I look different when I read, my face is deep in there
“do you think you could suck the words up your nose?”
this boy (senior) keeps entertaining the room. With ME.
slow motion
boy approaches
virtual crosshairs forming
I feel the power, I am going to use the power. I’m ready
what I am going to do is the wrong thing to do.
“does it make you feel good to make fun of me for something I can’t do anything about?”
he cried

100th anniversary of his school
“I remember that day” a dozen people
what was wrong about it was that it exonerated the room for not taking a stance
then they scapegoated him
and they were all responsible
35 of them, one of me, one of him
the crowd had an opportunity to engage


you can’t regulate this stuff with rules
social media rules is a bad idea
needing only old rules
we don’t need special rules
it is people reacting in human ways with each other
at distance means people will be more crass, less reserved
when there are no consequences
imagining the character Joel Fleischman in the artic
we have these new ways of engaging
we want to use them personally, professionally, institutionally
but with lots of people, lots of observers
communicators love this
more ways to tell our story
more ways to engage people
but means there is less control
fewer mechanisms to prevent people from communicating
there were times when the only voices heard were those invited to the podium

your own equipment
consequences roll out afterward

people haven’t changed, the tech has
**same old stuff**

so let’s talk a little bit about legal issues

we don’t need special social networking policies
we don’t need typewriter policies
“you may not do sexual harassment with a typewriter”
you need a sexual harassment policy, not a typewriter policy

change in tech makes people feel they need special rules

basic areas:
– intellectual propery
– privacy / confidentiality
– security (what limitations are on us to prevent disclosure)
– contracts
– university policy

you can get in trouble for leaving yr door unlocked even if no one goes in

no test at the end, don’t need to take copious notes

copyright in context of social media
copyright is counterintuitive
not a capitalist doctrine
“progressive laws”
congressional rights
patent, trademark, copyright
for limited times can secure selected rights for creative folk, inventors
this is distinct from commerce, treated differently
we were a young society
made no sense for us to lock up information
wanted people to advance our society without having to reinvent the wheel
fundamental for our society
DesChartres ??? “shoulders of giants” like Schopenhauer
there are no such things as giants
“Jack the Giant Killer”
piles and piles and piles of dwarves
it took a lot of people and their innovations to create everything around us
unnamed people, the dwarves of our fictional kingdom
the purpose is not to reward authors, to incentivize them, to punish those who infringe
those are the MEANS
when he was a law student, copyright was a dead area of law, couldn’t study it
but now is HOT, boomed with Internet
copyright has become part of our everyday vernacular
“original authorship in fixed medium of expression”
“This squiggle is mine. I call it Obama in Utero. I created it. I did not copy it.”
applies to all kinds of things – architecture, photography, expressive technologies
“You have just witnessed the birth of a copyrighted work. Congratulations.”
“It’s that easy. We create billions of copyrighted works at the University of Michigan every month. You could not count them.”
Copyright protects expression, not the ideas that underlye the expression
It also does not protect a fact
We like the idea that ideas are not protected. “Boy meets girl. Clash of personality. They meet a third time. Romance. The old clash emerges again. Will they get together again? They do. There is a great soundtrack.” We like that story. A lot. It’s called a romantic comedy.
You can’t copyright the idea.
Everybody is a publisher. All these people get to create copyrighted works that are attached to them.
five main protected rights
Reader’s Digest version
1. make copies
2. derivative works, 2nd edition, translated, slightly altered (Andy Warhol)
3. right to distribute the work
4. publicly perform
5. publicly display
social media duplications >> embeds, retweet, repost, copy, etc.
we had two girls with almost the same name here. both in sorority, one from NY one fr CA. looked almost identical. People kept confusing them. they were both unhappy. one made a webpage pretending to be the other. naked pictures in the locker room. policy to prevent this now. policy hasn’t stopped people from bringing phone into locker room. made a fake page “look what an idiot I am.” IE. fake magazine subscriptions in dorms.
implied rights to perform/display. you are enabling a public performance of my video.
limitations on those rights.
copyright holder is USUALLY the author
is not if you created work within scope of employment.
You don’t have to do this SOMETIMES. Figuring out the “sometimes” is not easy.
OK, so you want to use someone else’s work.
You need to show the work to comment on it.
Window dressing, not so much.
FOUR things to consider:
– for profit or *not*? (scholarship, commentary, criticism)
– *factual* or creative?
– how much? whole thing or *small part*? how important?
– are you undermining someone’s market?
212 words used from Gerald Ford’s book. When Nation magazine scooped Newsweek, OUCH! was the heart of the work.

everything on the internet is copiable
presentation – the Marsh Lecture
presenter uses snippets from CNN and NBS
Youtube blocks it
this might be fair use
Google is not using a very fine tooth comb
can post on UM site
faculty member wants to use advertising to show racism, sexism, etc
cannot get permissions – company won’t give perms. Jack says it is OK.
DMCA – Digital Millenium Copyright Act
the process for getting Youtube to unlock the video again, to claim fair use
mediated … peer-to-peer file sharing
p2p file sharing is not illegal, it is what you share and how you share it

patent & trademark
you want to know that what you got is what you intended
the Block-M should MEAN something about what we stand for
we want to be careful about appearing to endorse other products/parties with our logos
mostly, we just endorse ourselves
new media allows us to do this without going through usual mechanisms
“putting a gorilla in the middle of the Block M is not ok”
“even the wrong wolverine gets out hackles up”
they make fun of us with spoonerisms, and we can’t do anything because they didn’t use our mark or our name
people are allowed to comment
don’t allow corporate confusion
PETA example: guy created peta.org people eating tasty animals >> lawsuit
these sorts of disputes happen
don’t often have patent problems
recipes, processes
when you DON’T want to disclose
rules are the same, the equipment has changed

information gets out there more easily
first day we had Google search engine, we had a dozen complains that parents could get their student’s SSN
ease with which we can share
a) share what you don’t intend to share
b) share and not realize you aren’t supposed to (patient Helen, husband John Smith)
Mi Library … Act
attorney client privacy
we need no new rules, need to be more mindful of the old rules
communication between two people moves into the broader community
share with one or thousands

not same as privacy
just what we want to keep to our people
entire market for passwords
some laws require certain amount of security
Facebook pages
“FB post: Yeah, I use my birthday as the password for my lab”
try to protect things in new ways
new rules for creating passwords > 2mos, 4mos, 6mos, year
can’t remember? uses postit note

click-through contracts
ToS: Facebook, Twitter, LinkedIn, Second Life
mechanism for changing default rules
contracts add a curtain and say that is the new wall
you give up rights you normally have, or grant rights the site would not normally have
you’ve agreed to all kinds of amazing things
you have given up your rights to your posts
they can use it for whatever they want
“we” can use it as endorsement
you might agree to have to do something, to assume responsibility you normally wouldn’t
be wary

—– Q&A —–

students in residence halls
event “public forum” pictures
“it depends”
you want things to be fair
how do you want to be treated?
images relate to privacy
using embarassing pictures can lead to more trouble
cameras obvious in room
we announce that this is being recorded
**open & obvious**
use good taste & judgement
won’t absolve you of all problems
anonymous pic of kid >> turned out to be opposing coach’s child
witness protection program kid on cover of publication

all social media does is make it easier for people to make these decisions independently of complete information

What we need is good general practices
disputes between me and this boy
we enable the crowd, the community to be its best self
the culture of our communications

will share PPT afterwards

Student workers: “Do you have permission to use this image?” “It’s ok, I found it on Google Image Search.”
Creative Commons
Fair use allows you to show it at home, to friends, etc.
link to pics safer than posting on website
low dpi can post, redirect to original
preserve a copy in case
screen capture to show original context >> just to repeat or for color “window dressing”, NOPE. comment on it, probably
how much of a comment is sufficient? must be substantive or specific – comment on the image itself “symmetrical faces”
how likely is it that the use you are making will be disruptive to the business of the 3rd party

what is our liability?
we have some protection under the law
“under the 11 years I’ve been doing this, we haven’t paid a dollar” thousands of complaints.
it harms your reputation to infringe
it harms the community
are we trusted? don’t damage that
only use as much as you NEED
don’t be cavalier
direct people to the original site

copyrighted images in presenter’s slides
one copy with my materials, one cleaned copy with comment what’s missing (ie. comics)
incidental to the talk

works created by gov are in public domain
but not all works on gov sites created by gov

created prior to 1923 > ALL
between 1923-1963 > MANY
from 1963-now > NOT PD, need perms

send an email saying “can we use this?”, they say yes >> that’s enough
creative commons
writing is helpful to prevent future confusion
we are miserable about keeping records about HOW we want to use things, so blanket permission is best “in support of educational mission”
“Patrick O’Brien master commander series”

obama in utero has same protection as movie AVATAR or your thesis

concerns about Facebook forum
fine line about exerting control
limited public forums
policy rec:
– we are not monitoring
– if we learn of problem, we reserve right to address it
– on topic
– polite
– no profanity
– no copyright / privacy infringement
do not create affirmative obligation – we can’t keep up with it
we don’t want to be responsible for the speech

we don’t want to embarass or ridicule people by pictures
we want nice photos that make them and us look good
general courtesy is a good strategy

professional vs personal
“my employer is, but I am not representing them”
great strategy
distinguish the two: I am / I am not
how we conduct ourselves in our private lives can impact on our professional lives
behavior undermines their ability to function as a professional
EG: student accused of stalking faculty / not true, but there was a lot of evidence
once you give us your computer, anything we find can be used
“I have nothing to hide”
he had posted as a freshman graphic photos of his genitals
“I was just being stupid”
you are not as anonymous as you think you are
there are these risks
we don’t know how far-reaching it is
who has stored what
take some time to feel out the technology before you engage fully
this is not a legal thing as much as it is a consequence

I can’t believe you need a law to tell people not to drive while texting

“once I was sitting on the bus next to a young woman, and I learned more about her sex life than I know about my own”

sense of immediacy makes errors larger

One response to “Jack Bernard on Legalities of Social Media

  1. In terms of conflicts, I think seeking the help of a mediator is helpful. Resolving conflicts is easy to do.


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