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From #SXSW: 5 pressing questions for social media lawyers

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It was clear that it was going to be a different sort of panel when lawyers from Foursquare, Meetup and Etsy admitted their somewhat-derogatory in-house nicknames during the “Lawyered” panel at the South by Southwest Interactive Festival: Foursquare General Counsel Brian Chase, or “Dreamsmasher”; Meetup General Counsel Daniel Pashman, or “Lawzilla”; and Etsy Counsel Sarah Feingold, or “Dreamcrusher.” This lively panel was attended not only by interactive and social media lawyers but also by social media and interactive mavens looking for advice on how to cope with their own dream crushers, while staying on the leading edge of electronic and Web commerce. The panel offered five lessons.

  1. What should every lawyer know before leaving a cushy law firm for a startup?. Pashman says moving from a law firm to a startup was a terrific culture shock. Law firms are populated by driven, focused and analytical lawyers who often work alone, while startups often have no other lawyers but lots of creative-, technical- and business-focused individuals who work in teams and seldom focus on issues that drive lawyers crazy. Feingold says that you must learn the language of your company, particularly the creative and technical types, so you can communicate effectively. Chase advises lawyers that their team members do not want a perfect answer, only quick and good answers.
  2. How can lawyers balance protecting members with protecting the business? In-house lawyers not only have to think about their company but also their customers, whose needs are essential to the success of the company. Pashman gave an example of companies that do not take the lead in protecting customers’ privacy. Such companies risk bad press and falling sales or membership, as Facebook has discovered. Feingold advises lawyers to think of the business first, then the law, and warns that as a business scales up, “the target on your back gets much bigger.” Protecting your business, however, does not mean you have to be the “No” guy, Pashman says. Rather, you need to learn to be part of your team and let members know the legal risks so they can decide. Chase warns that you should not only dutifully and thoughtfully comply with certain laws but rather protect the trust and interests of your community by resisting government attempts to reduce privacy. This is important, Feingold says, because policies at companies such as Google and Facebook are in the process of becoming de facto law, akin to Digital Millennium Copyright Act takedowns on YouTube.
  3. How can lawyers avoid the hate of everyone else at the company? Pashman embraced his Lawzilla nickname by wearing a Godzilla costume to the office Halloween party, then bought the entire office a round of tequila shots. Feingold also embraces her Dreamcrusher nickname but passes out chocolate regularly. More importantly, she has an open-door policy and urges team members to meet with her early and often so legal issues are addressed in the mix before a product is fully baked. Chase says to remember that lawyers are part of the team, that they want to be involved and that they have the same stake in your success — and advises lawyers to live up to that approach.
  4. What’s the most important legal issue facing tech companies in 2013? All three agree: It’s privacy! The EU might set de facto standards, because the bloc takes a stronger stand on user privacy compared with the U.S. In the U.S., government agencies and trade groups are taking various stances on privacy. The government talks a good game about privacy, except when it comes to having access to your data. Trade groups also talk about privacy, but tech companies need to get ahead of the curve, especially on mobile privacy, Chase says. Pashman urges tech companies to take the lead by making things more transparent, more understandable, more human: Put a plain-English summary at the top that users will actually read and understand so there can be true informed consent. And don’t hide changes to privacy policies — learn from Facebook’s and Instagram’s errors. Better yet, get nonlawyers involved in formulating and drafting policies — they will be far more likely to know what real humans are likely to grasp.
  5. How can a company steer clear of intellectual property concerns? Feingold waded into the swamp that is intellectual property and fair use. Lawyers have one view of what is protected under IP law, while team members and the public often rely on a claim of fair use to try to avoid dealing with or compensating IP owners. Without getting into the nuances of fair use, Feingold advises IP owners to take a practical approach — not every use of your brand — to provoking a lawyer’s response. Chase gave the perfect example, explaining that he met Feingold when someone noticed that some crafty user was selling Foursquare badge replicas on Etsy. Rather than a heavy-handed takedown notice or a cease-and-desist letter — which surely would have gone viral — he and Feingold worked together with the user to get around the IP issue.

Lawyers: Sometimes you can’t live with them, but you should never shoot them. And, hey, Dreamcrusher has chocolate and Lawzilla’s buying the shots, so let’s try to let them play on the team.

This post is by Stephen J. Easley, vice president for government affairs and general counsel of F2 Technologies, a company for wireless data and software. He is also an entertainment lawyer, representing clients such as the Buddy Holly Educational Foundation on corporate and intellectual property issues. This was his 27th SXSW conference.