MediaTech Law


Website Policies and Terms: What You Lose if You Don’t Read Them

When was the last time you actually read the privacy policy or terms of use of your go-to social media website or you favorite app? If you’re a diligent internet user (like me), it might take you an average of 10 minutes to skim a privacy policy before clicking “ok” or “I agree.” But after you click “ok,” have you properly consented to all the ways in which your information may be used?

As consumers become more aware of how companies profit from the use of their personal information, the way a company discloses its data collection methods and obtains consent from its users becomes more important, both to the company and to users.  Some critics even advocate voluntarily paying social media sites like Facebook in exchange for more control over how their personal information is used. In other examples, courts have scrutinized whether websites can protect themselves against claims that they misused users’ information, simply because they presented a privacy policy or terms of service to a consumer, and the user clicked “ok.”

The concept of “clickable consent” has gained more attention because of the cross-promotional nature of many leading websites and mobile apps. 

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Please Don’t Take My Privacy (Why Would Anybody Really Want It?)

Legal issues with privacy in social media stem from the nature of social media – an inherently communicative and open medium. A cliché is that in social media there is no expectation of privacy because the very idea of privacy is inconsistent with a “social” medium. Scott McNealy from Sun Microsystems reportedly made this point with his famous aphorism of “You have zero privacy anyway. Get over it.”

But in evidence law, there’s a rule barring assumption of facts not in evidence. In social media, by analogy: Where was it proven that we cannot find privacy in a new communications medium, even one as public as the internet and social media?

Let’s go back to basic principles. Everyone talks about how privacy has to “adapt” to a new technological paradigm. I agree that technology and custom require adaptation by a legal system steeped in common law principles with foundations from the 13th century. But I do not agree that the legal system isn’t up to the task.

All you really need to do is take a wider look at the law.

Privacy writers talk about the law of appropriation in privacy. The law of appropriation varies from state to state, though it is a fairly established aspect of privacy law.

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Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

When using Pinterest (and Flickr and YouTube and Facebook and on and on), what copyright, fair use, trademark and other issues weigh on building communities and fan pages and social media generally?  A hypothetical “Company” has plans for its Pinterest “community”, and in particular, wonders about these situations:

  • Using Images of Identifiable People
  • Fair Use and Images
  • Trademarks: When is a “Fair Use” Argument Strongest?
  • Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company sponsor or spokesperson.  They are no longer.  Can the Company continue to post a photo of the old sponsor to Pinterest?  Short Answer: If the contract with the sponsor expressly permits it, yes.  Ordinarily, the contract would specify engagement for limited time, and that would prohibit rights to use images beyond the contract period.  But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company?  Short Answer: Express consent is required, either through a release or the fan’s agreement (whenever the photo is submitted) to terms of service.  Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page?  Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

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Privacy For Businesses: Any Actual Legal Obligations?

For businesses, is there an obligation in the United States to do anything more than simply have a privacy policy?  The answer is not much of an obligation at all.

Put another way, is it simply a question of disclosure – so long as a business tells users what it intends to do with their personal information, can the business pretty much do anything it wants with personal information?  This would be the privacy law equivalent of the “as long as I signal, I am allowed to cut anyone off” theory of driving.

Much high-profile enforcement (via the Federal Trade Commission and State Attorneys General) has definitely focused on breaches by businesses of their own privacy statements.  Plus, state laws in California and elsewhere either require that companies have privacy policies or require what types of disclosures must be in those policies, but again focus on disclosure rather than mandating specific substantive actions that businesses must or must not take when using personal information.

As The Economist recently noted in its Schumpeter blog, “Europeans have long relied on governments to set policies to protect their privacy on the internet.  America has taken a different tack, shunning detailed prescriptions for how companies should handle people’s data online and letting industries regulate themselves.”   This structural (or lack of structural) approach to privacy regulation in the United States can also been seen – vividly – in legal and business commentary that met Google’s recent privacy overhaul.  Despite howls of displeasure and the concerted voices of dozens of State Attorneys General, none of the complaints relied on any particular violations of law.  Rather, arguments (by the AGs) are made about consumer expectations in advance of consumer advocacy, as in “[C]onsumers may be comfortable with Google knowing their search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy.”

Again, there’s little reliance on codified law because, for better or worse, there is no relevant codified law to rely upon.  Google, Twitter and Facebook have been famously the subjects of enforcement actions by the states and the Federal Trade Commission, and accordingly Google has been careful in its privacy rollout to provide extensive advance disclosures of its intentions.

As The Economist also reported, industry trade groups have stepped in with self-regulatory “best practices” for online advertising, search and data collection, as well as “do not track” initiatives including browser tools, while the Obama Administration last month announced a privacy “bill of rights” that it hopes to move in the current or, more realistically, a future Congress.

This also should not ignore common law rights of privacy invasion, such as the type of criminal charges successfully brought in New Jersey against the Rutgers student spying on his roommate.   These rights are not new and for the time being remain the main source of consumer recourse for privacy violations in the absence of meaningful contract remedies (for breaches of privacy policies) and legislative remedies targeted to online transactions.

More to come on this topic shortly.

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Fair Use or Just Plain Stealing? “Transformative” Art in a Digital World

A recent New York Times article discussed the case of an artist was sued for copyright infringement after he created paintings and collages based on photographs without crediting or obtaining permission from the photographer.

The artist, Richard Prince, based his works on photographs from a book about Rastafarians “to create the collages and a series of paintings based on [those photographs],” reported Randy Kennedy in the Times.

Then ensued a discussion of the degree to which material must be transformed to fall under copyright law’s “fair use” protection, which would allow use of copyrighted material if, as the article explains, “the new thing ‘adds value to the original’ so that society as a whole is culturally enriched by it.”  (The reference is to a 1990 Harvard Law Review article by Federal Judge Pierre Leval.  I previously discussed fair use’s 4-prong analysis in the context of photographs and artwork, here and in mashups here.)

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RTs are Not Endorsements – Social Media Policies

“RTs do not = endorsements.” We’ve all seen it on Twitter bios, usually bios belonging to members of the media.

These kinds of disclaimers, disassociating the tweets from the people who retweet them, are common. The Twitter bio belonging to Brian Stelter of the New York Times (@brianstelter) notes, “RT & links aren’t endorsements.”

A Social Media Policy Addressing RTs and Linking

But for some, those disclaimers are not enough.  Last fall, the Associated Press introduced an updated social media policy for its reporters and editors.  As recently reported in Yahoo! News, the AP memo advised reporters and editors that “Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.” The guidelines note, “[W]e can judiciously retweet opinionated material if we make clear we’re simply reporting it.”

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FTC Blogger Guidelines – A Look at Enforcement

It is a task often relegated to the office interns: posting promotional content to outside social media sites.

Despite the fact that this practice is officially frowned upon in the Federal Trade Commission’s 2009 endorsement guidelines, companies will often engage paid individuals – either employees on the payroll or outside bloggers who receive compensation in the form of a free sample – to post positive reviews online, including to places like Twitter, personal blogs, or online public forums without identifying the connection between the commenter and the product being commented on.

The FTC’s endorsement guidelines seek (among other things) to ensure that unbiased positive reviews online can be considered credible, while also ensuring that positive reviews that are partially the result of some sort of compensation be acknowledged as such.

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Citizen Journalism: Vetting Quality Via Lessons from Gaming

Unlike traditional newsroom journalists, “citizen journalists” have no formal way to ensure that everyone maintains similar quality standards.  Which does not mean that quality standards are necessarily (or consistently) maintained at traditional newsrooms, but rather that a traditional hierarchical editorial structure imposes at least theoretical guidelines.

By definition, citizen journalism’s inherent difference from the traditional editorial process is the dispersion of responsibility for editorial choice.  Nonetheless, “trustiness” in journalism is a concept still heavily dependent on a reporter’s or editor’s reputation.  Is the New York Times trusted because it’s trustworthy?  Or is it trustworthy because it’s trusted?

The “Generated By Users” journalism blog recently reported the results of its reader poll, “Do you TRUST user generated content in news?”

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Dirty Needle: Tattoo Parlor Sues Competitor for Defamation

Two dueling tattoo parlors down the road from one another in Mobile, Alabama. It could be the premise of a TLC reality show.  It’s not (yet) a TV show, but it IS a court case recently decided by the Alabama Court of Civil Appeals. In September, that court ruled in favor of Chassity Ebbole, owner of “LA Body Art” tattoo parlor in Mobile, who had sued the owners of the competing “Demented Needle” tattoo shop for libel and wrongful invasion of privacy.

Ebbole claimed that Demented Needle owner Paul Averette had been telling customers and others that Ebbole’s shop used equipment infected with diseases such as Hepatitis C and HIV, claiming also that Averette had told the world that Ebbole had infected herself.

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Startups: Capital Fundraising, Crowdsourcing and Securities Law

“With regulators considering easing fund-raising rules for start-ups …” a recent Wall Street Journal story began, “social-networking sites that link entrepreneurs to large pools of donors are gearing up for a boom.”

First, the background.  Federal and state securities laws govern the sales – including the solicitation of sales – of securities, affecting all efforts to raise capital for startups.  This includes any public efforts to raise money, and includes raising small or large amounts of money.  Generally, sales and solicitations of sales of stock require compliance with SEC and various state securities law, and more particularly the registration requirements of those laws.

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BitTorrent Copyright Infringement: Trouble for DMCA?

BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

2 great background sources on what BitTorrent is and how it works can be found here and here.  In short terms, BitTorrent is a file sharing technology, different from Napster and its peer-to-peer progeny in that it draws down pieces of large data files from multiple computers – rather than single computer to single computer peer-to-peer – based on a “community” structure of participating individual users.  The two biggest distinctions are (1) no single source for the compiled total file contributes more than a very small portion of the total file and (2) the distributive structure finesses the constant file-sharing problem of large data transfers demanding large broadband resources.

Why is bitTorrent in the (copyright) news?

BitTorrent is in the news not simply because Netflix’ CEO stated that “we’ve finally beaten bitTorrent.”  (“We”, by the way, presumably refers to Netflix’ full-file streaming capabilities.)

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Twitter Chat: App Development/API Legal Issues with Andrew Mirsky and Joy Butler

The following is our first twitter chat on trending legal issues. This one focused on legal issues involved with app development and APIs and featured thoughts from attorneys Andrew Mirsky and Joy Butler (@joybutler). Be sure to stay tuned to the @MirskyLegal twitter account for more information on the next #lawchat and please tweet in using the provided unique hashtag!

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