Hulu Can't Shake Privacy Suit

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United States Magistrate Judge Laurel Beeler last week denied a summary judgment motion by Hulu, LLC, to dismiss a putative class action invasion of privacy suit brought by users of the on-demand streaming video Web site, according to a Reuters wire service article.

The case, In re Hulu Privacy Litigation (Case No. 11-03764I), brought in the United States District Court for the Northern District of California, alleges that Hulu violated the Video Privacy Protection Act ("VPPA") [Pub. L. 100-618] when it purportedly allowed access to users' viewing history to Facebook, Inc. and comScore, Inc. without the users' permission.

Hulu's unsuccessful motion to scuttle the suit argued the plaintiffs were not aggrieved persons under the VPPA because they hadn't sustained actual damages. Additionally, Hulu contended certifying plaintiffs for a class action was untenable because a substantial number of its users employ fake identities.

Judge Beeler, however, without ruling on the merits of the suit, said VPPA merely "requires only injury in the form of a wrongful disclosure," in denying the summary judgment motion. VPPA was enacted in 1987 by Congress in a knee-jerk response to the Washington, D.C. City Paper publishing a record of video store movie rentals by then U.S. Supreme Court nominee Robert Bork.

The plaintiffs, whom the Reuters article reported are scattered among New York, Illinois and California, want $,2500 per alleged VPPA violation, along with punitive damages and costs. They allege Hulu sent their personal viewing histories to Scorecard Research, a market research component of comScore, Inc., and to Facebook, Inc., which allegedly linked the video selections to Facebook registration data, according to the Reuters article.

Hulu is a joint venture of News Corp., Walt Disney Co. and Comcast Corp. through Fox Broadcasting, ABC and NBC Universal, respectively. The venture is expected to generate $1 billion in revenues this year, according to Reuters.

Another motion to dismiss the case is slated to be heard in February, 2014, in which Hulu is expected to argue that it did not knowingly transmit allegedly protected data to marketing and social media outlets in violation of VPPA.

Couric Perkily Poised to Jump to Yahoo!

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Fresh from luring David Pogue from the New York Times (see "TUOL" post 10/22/13), Yahoo! CEO Marissa Mayer's latest coup is expected to be formally announced today--Katie Couric will join the Internet Service Provider as its global news anchor, according to the Allthingsd.com Web site.

Couric is presently wrapping up the second season of her ABC-syndicated talk show, Katie, which she signed onto for a three-year haul in 2012 reportedly for a cool $20 million (see "TUOL" post 6/6/11). Previously, she anchored the CBS Evening News for five years and co-hosted NBC's Today. "Katie" is sagging in the ratings but is still among the highest for syndicated programs.

She is expected to conduct online interviews of prominent politicians, celebrities and business leaders forYahoo! The ISP already is the online news partner of ABC News. "Katie's Take," already is featured on Yahoo! and features re-jiggered content from her talk show.

ABC, which is owned by the Walt Disney Co., reportedly holds rights to Couric's digital outpouring for the life of the three-year contract, which is probably among the many "t's & i's" being crossed and dotted in preparation for today's formal announcement.

Digital Newspapers Don't Have a Monopoly on Paywalls

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ABC Cincinnati affiliate WCPO-TV, the flagship station of E.W.Scripps Co., will erect a paywall in 2014 for its online content, according to Poynter.org.

Poynter.org cites a NetNewsCheck post indicating WCPO has boosted its digital reporting presence by adding 30 editorial staffers. E.W. Scripps announced last year plans to erect paywalls for its newspaper holdings, which number 14. Overall, roughly 41 percent of the nation's daily newspapers have paywalls, according to Digital First Media.

Digital TV Streamer Asks Court to Dismiss Broadcast Networks Copyright Suit

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In a 31-page motion for summary judgment, digital tv streaming service Aereo has asked United States District Court for the Southern District of New York Judge Alison Nathan to dismiss copyright infringement claims brought by commercial public broadcasters. 

In American Broadcasting Cos. et al v. Aereo (Case No. 1:12-cv-01540), Aereo, which is financially backed by media mogul Barry Diller (see "TUOL" post 8/14/12), argues the March 2012, copyright infringement suit brought by commercial broadcasters CBS, ABC, NBC and Fox should be dismissed following the networks' failure to persuade the United States Court of Appeals for the Second Circuit to overturn Judge Nathan's earlier ruling not to issue a permanent injunction against Aereo for allegedly violating the broadcasters' right to public performance of its programming by not securing a license from the networks.

Aereo, which digitally streams broadcasters' programming over the Internet one-on-one to subscribers' computers and Web-enabled devices, contends its transmission to individuals' miniature antennae is nonpublic and in any case, protected by the fair use defense to copyright infringement, as reported by BloombergBusinessWeek(www.businessweek.com) and the Hollywood Reporter's legal blog THR, Esq. The networks counter that Aereo capturing their over-the-air signals and transmitting its programming constitutes a public performance that infringes on their copyrights.

Cooked Peacock: NBC Sinks to 5th in Key Viewer Group

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For the first time since tv ratings sweeps history, NBC sank to fifth place among viewers in the 18- to 49-year-old demographic group that advertisers crave, Deadline Hollywood (www.Deadline.com) reported.

 NBC "second season" shows such as 1600 Penn and Do No Harm landed with a thud in their debuts (the latter has since been cancelled for doing so much harm) and rival network CBS got a massive ratings boost from the Super Bowl, but that doesn't lessen the blow of finishing behind the fourth-place Spanish-speaking network, Univision.

Watch for some tweaking in the Peacock Network's ad campaign: "More viewers are watching NBC than the Emergency Broadcast Signal!"

ABC's The Bachelor: In Color but not of Color?

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In a 23-page Memorandum of Decision, United States District Court for the Middle District of Tennessee Judge Aleta Trauger this week ruled that alleged racially discriminatory casting decisions by ABC for its reality programs The Bachelor and The Bacheorette are protected by the First Amendment.

In the class action suit, Nathaniel Claybrooks & Christopher Johnson v. ABC, Inc. et al. (Case No. 3:12-cv-00388), the plaintiffs claimed that the failure to feature non-white, looking-for-love contestants violated the Civil Rights Act of 1866 [14 Stat. 27] and other non-discrimination legislation. According to reports by the THR, Esq. Web site and the Associated Press, Judge Trauger held that the First Amendment shields the programs' producers and the network's casting decisions from claims that would regulate content.

"[C]asting and the resulting work of entertainment are inseparable and both must be protected to ensure that the producers' freedom of speech is not abridged," Judge Trauger wrote. No word on whether the decision will be appealed.

'Big Brother' Watching People Living in Glass Houses

Fred Allen

CBS is engaged in saber-rattling with rival network, ABC, threatening litigation over a reality show debuting next month that the folks at Black Rock claim apes one of their popular programs.

CBS, which airs Big Brother, has its Eye, so to speak, on Glass House, which is set to debut next month on ABC. The New York Times reports that CBS sent ABC a lawyer letter complaining that Glass House is "substantially and strikingly" similar to Big Brother. Glass House involves 14 people vying for a cash prize by being the last person standing after spending the summer sharing a home together under the scrutiny of television cameras. Meanwhile, Big Brother, which is set to air its 14th season this summer, involves people living together for three months in a privacy-free zone, cut off from the outside world, but under constant television camera surveillance.  That's entertainment.

In its letter to ABC that hints at litigation, CBS notes that Glass House allegedly employs 18 former Big Brother staffers, according to the Times article.  CBS previously unsuccessfully sued ABC after the latter premiered a reality show entitled I'm a Celebrity--Get Me Out of Here, that CBS alleged infringed on the granddaddy of reality television shows, Survivor.

Radio comic Fred Allen's words: "Imitation is the sincerest form of television," never seemed truer.

Whither Jen, Brangelina & the Kardashians?

Image via WikipediaAmericans' taste can't have improved, so the sour economy must be to blame for sagging celebrity magazine newsstand sales.

Ad Week reports that the numbers from the Audit Bureau of Circulations' Rapid Report don't bode well for periodicals immersed in Hollywood glitz. People magazine, for instance, saw decreased newsstand sales over the second half of 2011 average out at 1.1 million copies, a 12.4 percent decline compared to second half 2010 numbers. People can take some solace in a 4.3 percent upward tick in subscriptions, for a total circulation of 3.6 million.

The news isn't much better for Bauer Publishing Co. periodicals Life & Style and In Touch, according to Rapid Report figures, as newsstand purchases plunged 7.5 percent and 8.5 percent, respectively. Celeb gossip journal Star Magazine, published by American Media, Inc., missed its rate base on more than half of  22 issues sold, while Us Weekly magazine, produced by Wenner Media, fell short on its circulation guarantee on five of 13 issues, Ad Week noted in its review of Rapid Report figures.

Looks like TMZ.com and tv talk shows are going to have to step up to inform Americans about whether Kim Kardashian is dating an NFL star and to provide bulletins on Demi Moore's rehab.

UPDATE: Obama Administration Asks High Court to Review FCC Indecency Rulings

Image by Getty Images via @daylifeActing U.S. Solicitor General Neal Katyal, at the Obama Administration's behest, urged the U.S. Supreme Court today to accept for review the FCC's indecency policy that restricts broadcasting nudity and profanity over the airwaves.

In its decisions in both Fox Television v. FCC (Case Nos. 06-1760, 06-2750, 06-5358) and ABC v. FCC (Case No. 08-0841), the U.S. Court of Appeals for the Second Circuit condemned the FCC's indecency standard as being unconstitutionally vague and violative of the First Amendment's free-speech guarantee. (See "TUOL" posts 1/5/11, 8/30/10.)

The government is arguing that the Second Circuit rulings effectively handcuffed the FCC and prevent it from carrying out its mandate to enforce statutory restrictions on broadcast indecency, whereas Hollywood moguls and First Amendment advocates contend that reinstating vague indecency rules would have a "chilling effect" on free speech.

The dedicated staff of  "TUOL" is in the latter camp, and also believes that the national debt, on-going conflicts in the Middle East, and health care are among a handful of issues that ought to command the attention of the Obama Administration ahead of  7-seconds worth of NYPD Blue actress Charlotte Ross's buttocks being broadcast in 2003, as captivating as "TUOL" remembered them to be.

UPDATE: 2d Cir. Overturns 'Cheeky' FCC Indeceny Fine Against ABC

Image via WikipediaIn ABC v. FCC (Case No. 08-0841), the U.S. Circuit Court of Appeals for the Second Circuit this week vacated a Forfeiture Order issued by the FCC in February 2008, against ABC and 44 of its affiliate stations that aired the naked buttocks of actress Charlotte Ross for seven seconds in a February 2003, episode of NYPD Blue.

Ia a 9-page decision, the appellate court followed up on its ruling last July in Fox Television Stations, Inc., v. FCC (Case No. 06-1760) that the FCC's indecency policy regarding "fleeting expletives" was unconstitutionally vague and violated the First Amendment. (See "TUOL" post 7/13/10.) Alluding to its earlier Fox ruling regarding the FCC's context-based indecency test, the Court wrote: "The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is constitutionally vague."

The NYPD Blue episode, Nude Awakening, featured a scene in which Ross' Connie McDowell character is preparing to shower when her detective boy friend, Andy Sipowicz's (Dennis Franz) young son walks in on her, thereby getting a view of frontal nudity that the audience was denied. The FCC received complaints about the episode showing Ross' backside (none from the devoted "TUOL" staff) and imposed a $27,500 penalty-- $13,750 per buttock--against each of ABC's 44 affiliate stations that aired the 9 p.m. episode for an aggregate $1.21 million penalty. Under the FCC's so-called safe haven rule, indecent material may not be broadcast between 6 a.m. and 10 p.m.

The 2d Circuit, however, found the FCC's nudity policy that determined that showing a woman's naked buttocks was indecent was unconstitutionally vague and overturned the fine.

President Obama Faces Another Disaster: Will Appear on 'The View'

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It's likely to spark a TiVo frenzy among liberals and Tea-Partiers alike Thursday when President Barack Obama appears on ABC's kaffee klatsch The View. Obama will be the first sitting president to appear on a daytime tv talk show (although "TUOL" believes that if President Richard Nixon didn't appear on Truth or Consequences, he should have).

President Obama appeared on The View in March 2008, when he was a U.S. Senator from Illinois. The gabfest's "Red White & View" episodes have been devoted to political discussion and have corralled a number of public officials, including Vice President Joe Biden, who appeared on the program last April.

President Obama will likely discuss the BP Gulf oil disaster and the economy among other topics, with co-hosts Joy Behar, Whoppi Goldberg, Sherri Shepherd and Elizabeth "Did you bring a birth certificate?" Hasselbeck.  The president may also apply his mediation skills to assist Whoppi and Sherri in apportioning the breakfast pastries.

President Obama is expected to enter onstage to the strains of "Hail to the Chief," which has View producers scrambling to come up with a different song to play when Barbara Walters saunters over to the couch.
Pray that it's not a slow news day.

'The View' From the Gutter

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Rod & Patti Blagojevich will appear on Barbara Walters' gabfest, "The View" on Sept. 9.

It's a return appearance for the 52-year-old impeached former governor of  Illinois, who was on the show last January. He is promoting his book, "The Governor."  Patti B. recently was a contestant on the NBC reality show, "I'm a Celebrity--Get Me Out of Here."

Blagojevich is under indictment following his arrest by FBI agents in December 2008, on corruption charges ranging from purportedly accepting campaign contributions in return for official actions and allegedly offering for personal financial gain the appointment to the U.S. Senate seat vacated by Barack Obama when he was elected president. The Illiniois Senate voted 59-0 to impeach Blagojevich on Jan. 30, 2009.

Patti and Rod are making a joint appearance on The View, and Rod, if convicted,  may soon be making an appearance in the Joint. ABC, which airs "The View," is owned by the Walt Disney Co., which may explain this "Goofy" booking decision.

Viewers eagerly await the "hair-off "challenge  between panelist Whoopi Goldberg and the former governor.