ISBA says “find out more” on Social Media and the Law via Jerome Larkin.

In the June 2014 ISBA journal, there is an entire article on social media, and this article  seems to center on the issue of Facebook containing derogatory and defamatory posts–which 90% of the time seems to revolve around employee/employer disputes.  Interesting.  Illinois is an at will state so I don’t think what you say on Facebook is going to help the average employee that posts something adverse or embarrassing about his or her employer and gets terminated for it.  BUT one narrow caveat is employees who are non exempt (lower level staff), discussing work place conditions, they may be covered under NLRB that allows employees to organize and present grievances to employers.  Again, it’s a narrow, unreliable exception, so I would not rely on it, except if you have already been fired for trying to make things better at work by acknowledging problems, that might make for a good wrongful discharge suit.  Be sure you were an excellent employee prior to the firing tho, because wrongful discharge suits are not guaranteed, either.  Better yet, keep workplace discussions at work and in appropriate formats and try not to be very negative about your employer, its products or services.

Interestingly enough, the article does not mention copyright issues, or that employees can be fired at will anyway.

My copyright Response to Jerome Larkin’s motion to dismiss my Copyright Infringement suit against him may be found here: for defendant Nextpoint

and here for the ARDC

The article itself cautions to 1) send targeted discovery requests requesting information about a specific topic; 2) asking for everything in Facebook is not likely to be well received; 3) the attorney should make sure the posts turned over are relevant.

While the article recommends programs like Snagit and Camtasia, the reality is, you capture a lot and the other side finds out, you WILL be facing a counter claim for copyright infringement and removal to Federal District court.  If Snagit and Camtasia are informed of your super infringing activities and take no action to stop it, they may be contributory infringers as aiders and abetters or vicarious infringers.  Most blogs are not sold or offered for sale, so technically they are unpublished under the US Copyright Act and Fair Use is NOT  a favored defense.  Any honest, competent, copyright attorney will tell you it simply cannot ever be relied upon.  It is best to take the least amount of text or data, generally no more than 3 or 4 short lines.  The upshot is write your own copy. (see, page 278) and make sure that what you take is clearly pertinent, relevant and most of all, MUST be downloaded and preserved.

If you can’t answer that question with a firm “yes”, then forget it.  If you’re mad about a Facebook post, most generally disappear in a few days.

The article also fails to mention if it’s not your stuff, don’t worry.  Under 47 USC 230, if someone else wrote it and you posted it, you should be protected.  If they ask for you to remove it under that statue, do so, following the statue closely.

Another issue not tackled by the article is that is you do engage in Fair Use because you want to use quotes or a short example for your blog article, most authors want acknowledgment.  Many will want a plug to their book or artistic work.  Many will also ask you post a copyright notice “(c) Name of Author, all rights reserved, year of publn. or creation for unpublished works.” and then the notation “used with permission of the author”.  The ARDC hasn’t figured out how to do that.  They should respect other’s copyright right, despite the fact as a government agency, they have none themselves.  You should always ASK to repost or republish from the author.  Many authors on the internet allow for cross posting.  Be sure to follow the free to repost instructions because it could invalidate the permission and subject you to copyright infringement liability.

Once, an attorney for Mr. Eformes wrote me demanding that I take down Ken’s assertions that his client had been indicted.  So, of course I complied.  I deleted what Ken wrote and inserted instead about a half dozen articles from wire services regarding his client’s indictments and litigation over nursing home fraud.  So there is a caveat that if you are trying to cleanse the internet of all your client’s misdeeds, this might in fact backfire.

Several citizens have pointed out to me the Social Media article and that Jerome Larkin’s name appeared on the page, and yet he wants to delete his adverse information from the internet and crush attorney dissent and extreme dissatisfaction over the fact that the law is X and courts are doing Y.  They found his name on that page ironic and asked me to mention it on the blog.

So I was pleased to comply.



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