By: Kimberly Shely

It is common knowledge that lawyers have a professional duty to reasonably ensure their employees abide by the Rules of Professional Conduct (RPCs). This ethical duty includes training their employees on how to maintain client confidences. Lawyers need to address proper social media etiquette with their nonlawyer employees to ensure that they understand that “confidential client information” cannot be discussed or shared on their personal social media platforms. However, lawyers must balance these ethical obligations with employees’ legal rights under labor laws. The National Labor Relations Act (NLRA) provides employees protection in engaging in concerted activity to better their working environment, and the National Labor Relations Board (NLRB) has extended this to include social media posts. Lawyers can balance protecting client confidences with their employees’ rights under the NLRA.

Lawyer’s Duties Under the ABA Model Rules of Professional Conduct

The applicable RPCs are Rule 5.3 Responsibilities Regarding Nonlawyer Assistance and Rule 1.6 Confidentiality of Information. Rule 5.3(b) explains that “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” In particular, Comment 2 clarifies that it is the lawyer’s responsibility to instruct and supervise the nonlawyer employees, “particularly regarding the obligation not to disclose the information relating to representation of the client . . . .” This is consistent with a lawyer’s duties under Rule 1.6(c) to make reasonable efforts to prevent the “unauthorized disclosure of . . . information relating to the representation of a client.” Comment 18 in Rule 1.6 again emphasizes it is the lawyer’s duty to competently safeguard client information, including by those the lawyer has direct supervisory authority over. The NLRA is not an exception to this Rule.

The NLRA Applies to Your Employees, Even Without a Union

The NLRA was created to protect employees in private-sector workplaces and allow them to seek better working conditions without risking retaliation. A key feature of the NLRA is Section 7 in that “[e]mployees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” A common misunderstanding of the NLRA is the assumption that it only applies to employees that are already in a union or attempting to join a union. However, “concerted activity” protections in Section 7 of the NLRA extend to any employee that meets the statutory definition, regardless of their union status. 

The statutory definitions of “employee” and “employer” make it clear that the NLRA extends to nonlawyer employees in a private law firm. NLRA Section 2(3) defines “employee” to include essentially any employee of a particular employer, except for agricultural workers, those working for a family member in domestic services, independent contractors, or a NLRA defined “supervisor.” This broad definition of “employee” would encompass nonlawyer employees described in Comment 2 of Rule 5.3 of the RPCs.

Private law firms, and by extension the lawyers within, would be considered “employers” under the NLRA. The NLRA Section 2(2) definition of “employer” is similarly broad and “includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation . . . or any labor organization . . . .” Nonlawyer employees and lawyers in private law firms meet the NLRA definitions, and therefore Section 7 of the NLRA applies to private law firms. 

Your Employees’ Social Media Rights Under the NLRA

Lawyers must be aware that Section 8(a)(1) of the NLRA makes it “an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 7.” Again, these Section 7 rights extend to employees who are not represented by a union. An employer can potentially commit an Unfair Labor Practice even without a unionized workplace. The “concerted activity” protections in Section 7 give employees “the right to act with coworkers to address work-related issues in many ways.” Some of the most common examples of “concerted activity” are talking with coworkers about wages, hours, and working conditions in an effort to improve them. 

The NLRB established in Hispanics United of Buffalo that Facebook and other forms of social media are a valid platform for Section 7 concerted activity discussions. In this matter, an employee posted on Facebook about her frustrations with a fellow coworker and in that post, the employee asked her other coworkers how they felt about the situation. The employees involved in the Facebook discussion were discharged because of the posts. The Board found that firing these employees violated Section 8(a)(1). It was a violation because the NLRB viewed the Facebook posts as “concerted activity,” which therefore meant it was protected under Section 7. 

How to Balance Nonlawyer Employee’s NLRA Social Media Rights with the RPCs

While safeguarding client confidentiality is a core and essential component of lawyers’ duties to their clients, an outright social media ban on any discussion of the workplace will run afoul of the NLRA. In its Boeing Company decision, the NLRB established a two-pronged test to determine whether a facially neutral workplace rule would violate Section 7, and lead to a Section 8(a)(1) violation. The Board reviews two aspects: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”  

The NLRB issued an Advice Memorandum regarding an issue with an online disparagement rule from Stange Law Firm. Although the disparagement rule was a violation of Section 8(a)(1), the memo provides guidance on an employer’s use of a “savings clause.” 

A properly executed “savings clause” should effectively inform nonlawyer employees of their rights under Section 7. This clause should clearly differentiate their Section 7 rights from the rule prohibiting discussions of confidential client information on social media. Lawyers have legitimate justifications in protecting client confidences. 

Lawyers should already be providing robust confidentiality training to their nonlawyer employees. Nonlawyer employees should understand that confidential client information under RPC Rule 1.6(a) includes information relating to the representation of a client. This confidentiality training should provide guidance on appropriate social media use. While employees may have a right under the NLRA to discuss wages, hours and working conditions, that right does not give them permission to disclose any information that would identify a specific client or client matter. 

By properly training nonlawyer employees on maintaining client confidences, including on their personal social media accounts, lawyers can fulfill their professional obligations under the Rules of Professional Conduct. Lawyers should provide employees with specific examples of what they can and cannot post, and clearly explain what employee’s rights are under Section 7 of the NLRA. Such training will then – hopefully – put lawyers in compliance with both the Rules of Professional Conduct and the National Labor Relations Act. 

By: Jason Anterasian

COVID-19 vaccines and new technologies fighting climate change face the same perils.

COVID-19 has upended the world and we are entering our third year of the pandemic.  When the pandemic first emerged, private biopharmaceutical companies such as Pfizer, Moderna, and Johnson & Johnson quickly developed COVID-19 vaccines.  Such rapid vaccine development was possible in part because these companies benefited from receiving government funding for COVID-19 vaccine research and development, advanced purchase orders from the government for the vaccines, or both.  COVID-19 vaccines also built on prior decades of mRNA vaccine research that had been largely funded by the government.  The biopharmaceutical companies now have patents on the vaccines and trade secrets on the manufacturing and commercializing of the vaccines, which have been cited as causes of the inequitable vaccine rollout throughout the world.  According to the Global Dashboard for Vaccine Equity, 67% of individuals in high-income countries have been vaccinated with at least one dose of the vaccine as of January 5, 2022, compared to 11% in low-income countries.  The divide between the developed and developing worlds has created problems globally, as it has produced breeding grounds for the virus, resulting in new variants such as Omicron that prolong the pandemic.  

While COVID-19 may seem like a unique crisis, another global crisis is emerging: climate change.  Like COVID-19, climate change has severe ramifications on global health, as extreme weather and natural disasters, extreme heat, environmental degradation and loss of biodiversity, water and food supply impacts, water quality impacts, and increased allergens and air pollutants all threaten public health.  Rich, developed countries emit the most greenhouse gases today; in developing countries, quality of life is increasing and will continue to increase – which is fantastic – but this will come with increased greenhouse gas emissions, as there is limited ability for these countries to pay the higher costs that exist today for green technology.  Similar to COVID-19 vaccines, new technologies must be invented and widely distributed throughout the developed and developing worlds to prevent (or slow down) a climate crisis.  Governments are the largest funders of efforts to develop new green technologies. As these technologies are created, patents and trade secrets in the new technologies will inevitably exist. As a result, we must learn from the COVID-19 vaccine rollout and avoid intellectual property becoming a barrier to global access and adoption of new green technologies.  A world in which only developed countries are using green technologies will not stop a climate crisis, as increased emissions in the developing world contribute to climate change, producing global effects.

Current laws and international agreements are insufficient solutions to disseminate green technologies.

Neither international agreements nor freedom of information laws provides a sufficient solution to ensure global access to new green technologies.  The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) established minimum intellectual property standards for countries in the World Trade Organization (WTO), and its Article 7 encourages “dissemination of technology . . . . in a manner conducive to social and economic welfare.”  TRIPS Article 31 also allows for compulsory licensing of patented technologies without authorization of rights holders in times of “national emergency or other circumstances of extreme urgency.”  Given TRIPS’ support of technology dissemination, green technology’s contribution to public welfare, and a climate crisis likely constituting an “emergency,” compulsory licensing under TRIPS is an avenue countries could take to circumvent patents in green technology.  However, compulsory licensing is an imperfect solution because it threatens to destroy incentives to innovate and can lead to backlash from patent owners and their home countries.  Also, there are many new large and small green technologies that must be developed across all sectors of our lives, such as manufacturing, energy, agriculture, and travel, to avoid a climate crisis.  This expansiveness makes it difficult to define the scope of which inventions would qualify for compulsory licensing. 

Similarly, while over one hundred countries have freedom of information laws, these laws are likely insufficient to circumvent intellectual property barriers and produce global use of new green technologies.  For example, the US Freedom of Information Act (FOIA) requires disclosure of recorded information held by public authorities, subject to listed exemptions.  “Any person,” including foreign nationals, can file a FOIA request.  A private company who partners with the government to build and test a green technology could have its information disclosed under FOIA, if the information is on the government’s records.  However, trade secrets are explicitly exempted from FOIA (Exemption 4).  Additionally, in 2019 the Supreme Court ruled in Food Marketing Institute v. Argus Leader Media that a private company’s information will remain confidential under this exemption as long as the company customarily and actually treats the information as private and provides it to the government under an assurance of privacy.  As a result, Exemption 4 makes it difficult for the trade secrets of a private company’s new green technology to be disclosed under FOIA, preventing dissemination.  

With proactiveness, patents, trade secrets, and tacit knowledge of green technology can be disseminated to the developing world.

Ultimately, advancements in green technology will come largely from funding by governments and innovation by companies in the developed world, and these technologies will come with patents, trade secrets, and tacit knowledge.  However, applying the lessons from COVID-19 to climate change, we cannot let intellectual property become a barrier to the implementation of new green technologies in the developing world.

Governments must aid private companies in both the supply of green technologies by funding innovation and the demand for it by growing the market via policy changes, given how inexpensive current practices like fossil fuels are compared to green technologies.  In exchange, governments must proactively look for ways to ensure these technologies can be disseminated throughout the world.  First, with respect to patents, the government should be enough of a co-inventor/patent owner such that it can license the new technology to the developing world at no additional cost compared to current alternatives.  Second, with respect to trade secrets, the government should require private companies to disclose helpful information related to green technology, to enable the developing world to manufacture and commercialize the technology.  This can be done by requiring private companies to spend certain amounts of time counseling and partnering with their peers in the developing world, and also by requiring private companies to contribute knowledge to global organizations such as the Green Climate Fund that work to aid developing countries in combating climate change.  Third, with respect to tacit knowledge, to the extent it is not a trade secret but is documented, tacit knowledge can be disclosed under freedom of information laws such as FOIA.

Ultimately, the COVID-19 pandemic has shown the increasing connectedness of our world and the importance of global adoption of new technologies to solve global challenges.  The US government and governments of the developed world should learn from COVID-19, and beyond funding supply for new green technologies to fight climate change, they should leverage their influence to ensure broad global access to these new technologies.  If this is done, some of the IP pitfalls that have prolonged the COVID-19 pandemic can be avoided in the fight against climate change. 

By: Gracie Loesser

You may know already that copying an image from the internet and pasting it onto your website or blog can get you into trouble. But you might be surprised to learn that embedding images can get you in just as much trouble.

Both methods of sharing media implicate Section 106 of the U.S. Copyright Act, which gives copyright holders the exclusive right to “display the…work publicly,” meaning all other individuals are not allowed to “show a copy of it, either directly or by means of a film, slide, television image, or any other device or process…” or they may be brought to court for copyright infringement. Although copying and pasting another person’s copyrighted content on to your webpage is widely accepted as an act of infringement by U.S. courts, the use of embedding technology to accomplish the same task is still an unsettled question.    

What is embedding, anyway?

Embedding technology allows anyone to render a visual image of remote content directly onto their own webpage, functioning as a kind of window into the external page. Embedding provides a much more polished and digestible presentation than a simple URL link and eliminates the need for viewers to leave the page at all. Embedding content is easier now than ever before, as social media applications, web hosting services, and other platforms offer user-friendly tools that facilitate embedding nearly every kind of content imaginable.

The problem is that U.S. courts are torn on whether this now-ubiquitous form of content sharing constitutes infringement.

Is unlicensed embedding a violation of the Copyright Act?

The Ninth Circuit and the Southern District of New York are staunchly divided on the legality of unauthorized embedding, and the Southern District’s recent rulings have only sharpened that divide.

The Ninth Circuit first addressed the issue in 2007. In Perfect 10 v. Google, the court articulated a standard which it called the “server rule,” holding that website publishers who embed copyrighted material into their pages are not guilty of infringement. The court reasoned that embedding content did not constitute a “display” of the material under Section 101 of the Copyright Act, since the website publisher was merely creating a frame to view the material on the original host server. Several courts have since adopted and applied the “server rule” in infringement cases.

Over the last fourteen years, the Ninth Circuit’s “server rule” has faced scrutiny from courts and legal experts. One of the most vocal opponents to the rule has been the Southern District of New York. The Southern District first explicitly rejected the “server rule” in 2018, finding “no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Copyright Act.” The District Court has maintained its position over the years, most recently this past July 2021 in Nicklen v. Sinclair Broadcast Group.

How can we reach a consensus?

Given the near-ubiquitous use of embedding tools on the internet, U.S. copyright holders and internet users deserve a clear answer. That answer could come from either the Supreme Court or Congress.

The Supreme Court has not indicated an interest in weighing in, but this issue does seem prime for the Court’s review. Mindful of the public’s interest in judicial predictability, the Supreme Court will often grant certiorari for cases involving legal questions that lower courts can’t agree on. In the present issue, there is obvious disagreement among courts on how to resolve embedding copyright infringement claims, and the resolution of this split will have major implications for social media providers, news organizations, and other internet users. More broadly, the questions implicated are not limited to embedding, but are indicative of a larger concern: adapting the Copyright Act to address developing technologies. The Supreme Court will likely continue to face questions regarding the role of copyright protection in the ever-evolving digital world over the next five to ten years.

Congress could also take action. Indeed, Congress may be a better vehicle for modernizing existing copyright law since the current difficulty arises mainly from the fact that the Copyright Act does not sufficiently address the reality of our current media landscape. Legal scholars are actively encouraging Congress to take action by amending the Copyright Act, but it is unclear whether Congress has the political motivation to pursue such legislation. Congress seems more polarized than ever, and its inability or unwillingness to pass substantial bipartisan legislation suggests a prompt legislative remedy is unlikely.

Meanwhile, the demand for user-friendly content sharing options shows no signs of slowing. As developers unveil new technologies to meet this demand, the U.S. legal profession will need to keep pace to make sure that U.S. copyright law is reflective of our increasingly digital world.