EXTRA: Emoji and the Law

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Hey, it's Zach. Before I get started, just want to let you know that we touch on some adult topics in this episode.
If you're listening with kids, you might want to review it first.

All right, on with the show.

Sometimes we interview really interesting people for this podcast who just don't end up making it into an episode. Like this guy.
I love talking about emojis, so we've got lots to talk about.

That's Eric Goldman. I am a professor of law.
I'm associate dean for research, and I'm co-director of the High Tech Law Institute, and that's all at Santa Clara University School of Law.

A couple weeks ago, we did an episode on emoji. You know, smiley faces, hearts, fire.

While I was doing research for that episode, I came across an incredible 2018 paper by Goldman titled Emojis and the Law. The legal side of emoji didn't quite fit in with the rest of our episode.

But today, we're going to give Goldman the stage. Because, as it turns out, lawyers and judges have a lot to say on the subject.

The courts will play a role in determining the meaning of emoji. That outcome's inevitable.
The question is whether they're doing it fairly.

For the Free Economics Radio Network, this is the Economics of Everyday Things. I'm Zachary Crackett.
Today, an extra episode for you on the unexpected legal side of emoji.

When I talked to Eric Goldman, He had just gotten back from a trip to China. Apparently, I'm big in China.
I did a five-city speaking tour.

He was there to present on something that's been causing a lot of trouble for Chinese merchants selling products on Amazon.

And in a way, it tied back to a question I had had about emoji while we were working on our episode.

In it, we talked about how a non-profit organization called the Unicode Consortium is responsible for approving the emoji that are on our phones.

They decide that we need an icon of, say, a shovel, then publish a recommendation for what that shovel should look like.

And then, the companies that make mobile operating systems, like Apple and Google, create their own designs for the shovel emoji. Generally, these companies protect their designs with copyrights.

Apple has hundreds, if not thousands, of copyrights in individual emoji depictions. They've been successful at convincing the copyright office to uphold their request.

There are also open source emoji sets from places like OpenMoji that are are free for commercial use.

If you go on Amazon, you'll find hundreds of emoji-themed products for sale, from Christmas tree ornaments to earrings.

Most of them are based on those open source emoji, so it's completely legal for them to sell goods with those designs. But as Goldman warned the merchants in China, a threat is lurking in the shadows.

Because, as it turns out, there's a company called Emoji Co. that has trademarks on the dictionary word emoji.
Emoji Co.

is a licensing company that has obtained trademark registrations for the word emoji in thousands of different product areas. Things like pens and mugs and t-shirts, even sex toys.

They do an Amazon search for the word emoji, and then any product that references the word emoji, they just sue them.

So if I'm selling like a coffee mug that uses an open source poop emoji on it that doesn't infringe on any trademark, Emoji Co.

can still send me a cease and desist for simply using the word emoji in the description of my product?

So the short answer is yes, but it's actually worse. The way it works is that Emoji Co.

will file a lawsuit with hundreds of defendants listed in the lawsuit. And then they go to the court.
They explain that they think there's been trademark infringement by these online merchants.

The court will issue a temporary restraining order that is designed to keep everything status quo until the court can take a closer look at the case.

But by keeping things a status quo, online marketplaces like Amazon will freeze a merchant's account and they will freeze the merchant's cash.

And they'll say, you're out of business until the court says otherwise or the trademark owner says otherwise.

EmojiCo can then say, if you want to have your business back, you can buy it back from us right as a check. And they've done that hundreds, if not thousands of times.

We reached out to Emoji Co for comment, but they didn't get back to us. It's like the old protection rackets that we would joke about with the mob.

You know, it'd be a shame if anything happened to your business, but you can pay me so that nothing bad will happen.

Could Emoji Co technically even go after a big company like Apple for using the word emoji? They wouldn't likely go after a big player like Apple. Apple would fight back.

They go after people who can't fight back.

For Goldman, this is just an anecdote. As a scholar of internet and tech law, he's taken up a special interest in how new forms of communication, including emoji, are interpreted by the courts.

I have alerts set up in various electronic databases that notify me every time a court uses the word emoji or emoticon.

And every time that I see a case like that, that I add it to my census, which is well over a thousand cases now in the U.S.

This year, the number will be over 300. Almost every case now where you've you've got emails or text messages or Slack messages are going to have emojis in them.

That's just now ordinary standard procedure for most litigators. As a form of communication, emoji aren't so simple.
Sometimes we use them as a substitute for words.

I use, for example, the thumbs-up emoji to signal okay all the time.

So if someone sends me an email and they said, I'm going to follow up with you in the following way, I'll send back a thumbs-up emoji. That's the same as saying, got it, or okay.

I'm just substituting in the emoji for that. Other times, we use them to emphasize the things we write or to convey extra meaning.

I might say something like, I love you, and then add a heart or a kiss or the emoji with the three hearts that shows I'm feeling good.

The text already said what it needed to say, but the emoji just says, I really mean it. In many cases, emoji take on a life of their own.

For instance, a skull emoji is often used to communicate laughter rather than death.

People have all kinds of ways of communicating with emoji, and not every reader can understand what a specific icon means in a particular context.

Most of the time, a particular communication format or method really only serves one purpose. Here, the emojis are serving a variety of purposes.

It might even be the exact same symbol, but performing different functions at the same time. And

interpreter, including a court, needs to be aware of the different interpretive functions and then to make sure that they're applying them properly.

This is complicated a bit more by the fact that each platform has their own designs for emoji. If I type out the characters I-L-O-V-E-U,

the person who gets the message is going to see those characters and they're going to recognize them the same. That's not necessarily the case with emojis.

They can look different on different platforms. So if you send like a cringe face emoji on an iPhone, it'll look different on a Samsung device.
Correct.

The sender sees one face and the recipient sees a face with slightly different details. That's a recipe for misunderstanding.

So how does all of this play out in the courts? Well, In one sense, this isn't unlike any other form of communication. Hand gestures, facial expressions, body language, and slang can all be ambiguous.

And judges already have really good ways of interpreting those things.

U.S. courts are really very capable of interpreting communication in order to divine reasonable meaning associated with it.

So when it comes to understanding whether or not a person wearing a particular clothing with a color in it is part of a gang or not, courts are pretty good at figuring out the differences between someone just randomly picking something out of their wardrobe and someone signaling that they were a member of a gang by deliberately invoking the colors.

Because courts are so good at interpreting non-textual communication, emojis actually work really well for them.

Even so, emoji are showing up in more court cases than ever before. They're pulled from text chains and chat locks and displayed on big charts in front of juries.

And sometimes, they even play a pivotal role in the verdict. That's coming up.

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When he looks at his database of court opinions that reference emoji, Eric Goldman says one type of case stands out.

Historically, the number one category of places emojis showed up in court opinions related to sexual predation cases.

There was a chat log or a message transcript of conversations between these individuals, all in the context of seeking sex. One emoji in particular tends to take take center stage.

No one ever uses the egg plant emoji as a vegetable.

If you look at Unicode's representative glyph, it's basically in an oval shape, kind of like an hourglass type of shape that they provide as the outline for that.

And someone somewhere along the way decided to depict that more in the Japanese eggplant style, which is basically long and thin.

So they took Unicode's representative glyph and they picked a different outline of an emoji. It looks like a penis.
It has come up a couple of dozen times in the case census I've maintained.

And people are using the eggplant as a metaphor for the general category of sex. It's an easy conclusion for the courts.
They're very good at understanding that an eggplant is not just an eggplant.

In most instances, emoji are just a passing reference in the evidence. But Goldman also told me about a case in which the emoji itself was the smoking gun.

The setup is a woman complains that she was sexually harassed in her workplace.

And as part of that, she includes a transcript of a chat log where there were some indicators that confirmed her story of sexual harassment, including the hard eyes emoji. And

the defendant said, I didn't sexually harass her. We've got a classic he said, she said story.
We have to figure out who we believe.

The defendant said, I want to see the device where this transcript allegedly took place. The device is unavailable.
She says, I don't have it anymore.

But she indicates that it was on a older version of an iPhone.

The defense team did some research and realized that the version of the hard eyes emoji used in the text transcript provided by this woman couldn't have possibly been typed on an old iPhone model.

What happened is that over time, Apple has evolved the depiction of the Hard Eyes emoji so that it looks different on different variations of the iPhone. Now, the differences are not significant.

The eyes got a little bit bigger and the smile got a little bit bigger, but it was enough to show that if she had taken that transcript screenshot on the device she claimed, she could not have seen that emoji because the version that she was using was only visible on a later version of Apple's operating system.

In the end, the court ruled that the hard eyes emoji in the provided text transcript was fabricated. The woman lost the case.

Essentially, what the defendant did is what I call emoji forensics.

They were looking at the depiction of the emoji as a way of carbon dating the item and showing that her story could not possibly be true.

Sometimes, emoji even find themselves at the center of a security fraud lawsuit. There's an entire genre of investing that's sometimes called mean stocks.

These are situations where the stock price doesn't necessarily reflect the underlying economic value. In that community,

there's essentially a form of pump and dump that takes place where someone buys stock, hides it, gets people to buy the stock as well, drives up the price, and then dumps the stock, leaving the later comers holding the bag in 2022 the activist investor ryan cohen took a big stake in the ailing retailer bed bath and beyond and he shared a social media post that included an emoji called the full moon face

this is a long tail emoji this is something that doesn't get used very often but in the meme stock community the moon face emoji might be a coded reference to suggest this stock is going to the moon.

So some stockholders in Bedmouth Beyond challenged Ryan Cohen for including the moonfaced emoji in his message, saying essentially he was hyping up the stock, telling everyone to buy it so that he could liquidate his position and make a profit.

And the court said that's a plausible interpretation of why he included the moonface emoji.

Sometimes even the most innocent emoji ends up at the center of a legal dispute, like the thumbs up.

I love the thumbs up emoji. It's one of my most commonly used emojis.
Yeah, it's the classic dad emoji. Sadly, I live up to the stereotype.

Goldman says the thumbs up is more contentious than it seems. The thumbs up emoji has come up in a number of litigated cases.
The last time I counted was over 50.

And the essential gist of the legal dispute is whether or not a thumbs up emoji means that I acknowledge your message or I agree with your message.

Take, for instance, a case that played out in Canada when a farmer offered to sell around 190,000 pounds of flax to a grain buyer.

The buyer sent over a contract via text message and said, I'd like to buy your flax. The seller responded with a thumbs up emoji.

As it turned out, that particular year, flax scrap didn't go the way they wanted it to. The seller says, I'm not going to sell you my flax.
The buyer says, we have a contract.

You gave me the thumbs up emoji. And I interpret that as an assent to my offer.

Those particular parties had a history of dealing with each other that suggested that the thumbs up emoji in their relationship would have been an assent and not just acknowledgement.

And so the court used standard contract interpretive principles to look at the conversation they had, as well as the dealing that they had in the past to say, I'm pretty confident that this was not an acknowledgement.

This is an acceptance. And the court held that it was in fact a binding contract.
And as a result, the seller owed tens of thousands of dollars of damages for not performing under that contract.

But the courts don't always accept a thumbs up emoji as an indication of agreement.

There's another case here in the U.S.

where the parents of a child who were now separated were discussing whether the child should live with one parent in a foreign country or here in the U.S. with the other parent.

And in those conversations, one of the parents gave the thumbs up emoji, and the other parent said, that was an assent to allowing me to have the child stay with me as opposed to the other parent.

And the court said, no, I don't think so. In that context, that was an acknowledgement.

The parent was simply signaling that they were acknowledging the message, but they were not agreeing to transfer custody of their child to another country by the thumbs up emoji.

And so we have two different outcomes with a thumbs up emoji. And I think both of those courts were right.

In the case of something like child custody, the stakes at issue, it makes total sense that the courts would reach different outcomes.

I wonder, hypothetically, if those parents were in person and one of the parents gave a physical thumbs up and it was like caught on a ring video camera or something, how that would play out differently.

It might very well reach a different outcome.

We would look at the body language, the facial expressions, the sincerity of the delivery of the hand gesture, and we could try to divine what that person was saying when they did the thumbs up.

But with emojis, we've stripped away the facial expressions. We've stripped away the body language, we've stripped away the sincerity of the hand gesture.
All we get is a single symbol.

And as a result, the courts are going to have to rely on other contextual clues to interpret it.

Emoji won't be the last thing to shake up that interpretive process.

We're already evolving our communication methods to other forms of non-textual communication. There's been a proliferation of variations of emojis, such as meme emojis or an emojis.

And

of course, people are also using memes and GIFs in some cases for the same basic purpose.

There's going to be additional iterations of ways that we can express ourselves online that are going to eventually eclipse emojis in my mind.

Has researching all this made you think twice about sending an emoji now? Yeah, no doubt about that. Honestly, I think that's a healthy thing.
And I encourage people to use emojis. Use them smartly.

Recognize that, like the words we pick, like the hand gestures we make and the facial expression we make, they all have legal consequence.

But don't allow that to inhibit the beauty of human communication. It's such a great way for us to talk to each other.
So you're sticking with a thumbs up emoji.

Yeah, my kids will laugh at me every single time.

For the economics of everyday things, I'm Zachary Crockett.

This episode was produced by me and Sarah Lilly and mixed by Jeremy Johnston. We had help from Daniel Moritz Rapson.

We don't have to talk about these cases in like excruciating detail or anything, but I'm sorry, you're talking to a law professor, so excruciating detail kind of comes with a territory.

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