Distinguished legal scholar Roscoe Pound once said, “The law must be stable, but it must not stand still.” By design or necessity, the law usually can only be reactive to new developments in commerce and technology. Recent social networking sites like MySpace, Facebook, and Twitter, and sites populated by user-driven content like YouTube and Zazzle, have accelerated those developments with which the law must keep pace.

In early June, misuse of Twitter was the subject of a public statement by the Indianapolis Colts and, separately, a lawsuit from Cardinals Manager Tony La Russa. While the statement on the Colts’ Web site was simply an advisory that a Twitter user posing as Peyton Manning was not the “real” Peyton Manning, La Russa filed a lawsuit against Twitter.

The suit claimed that an unauthorized Twitter page used his name to make light of drunken driving and two Cardinals pitchers who had died. The suit also claimed that tweets were disseminated that appeared to have come from La Russa.

Such activity raises potential issues ranging fromfraud, defamation, invasion of privacy and, potentially, violation of his intellectual property rights, such as trademark and right of publicity. Born out of the right of privacy, the right of publicity concerns the right of every individual to control the commercial use of his or her identity. (For more information on the right of publicity, see http://www.rightofpublicity.com.)

Some sites historically have enjoyed safe harbor from user-posted content that violates applicable laws. But it is conceivable that certain sites are so susceptible to abuse that those safe harbors might be reduced and an affirmative duty to regulate content and prevent infringements would apply.

In addition to La Russa’s Twitter lawsuit, consider sites like Zazzle, which allow users to post content and designs and to create a storefront through which products like T-shirts and coffee mugs can be purchased. If the company handles fulfillment of the order, packages it in the company’s branded materials, and takes a substantial commission from the sale price, that process likely implicates the Web site company to a higher degree than perhaps a site like eBay (which is mainly just a conduit between the buyer and seller and only involves a small commission from the transaction price).