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.

UPDATE: 4th Circ. Says Clicking Facebook 'Like' Icon 1st A. Protected Speech

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In an important free speech decision, the United States Court of Appeals for the Fourth Circuit this week in Bland v. Roberts (Case No. 12-1671) reversed the trial court and found that clicking the thumbs-up Like icon on Facebook constitutes First Amendment-protected speech.

The case involved Hampton (Va.) Sheriff B.J. Roberts who, following his re-election in a hotly contested struggle with challenger Jim Adams, fired Daniel Ray Carter among other deputies who had "Liked" Adams' Facebook page in 2009 (See "TUOL" post 5/1/12). The ousted lawmen sued on the grounds that their First Amendment rights had been trampled, but United States District Court for the Eastern District of Virginia Judge Raymond Jackson found against them, ruling: "[L]iking a Facebook page...is not the kind of substantive statement that has previously warranted constitutional protection."

But, according to accounts in The Wall St. Journal, The Volokh Conspiracy blog and elsewhere, the Fourth Circuit begged to differ in its 81-page decision, finding that the deputies' icon-clicking was both pure speech and symbolic speech worthy of First Amendment protection. Liking a candidate's Facebook page, the appellate panel said, "is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."  Moreover, clicking the thumb icon is symbolic speech in that the actor, through his conduct, is intending to convey a message, and that intended message--Jim Adams would be a good sheriff-- is reasonably understood by the audience.

Facebook's Privacy Policy Revisions Catch FTC's Attention

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Facebook, Inc.'s privacy policy revisions, unveiled August 29, have drawn interest from the Federal Trade Commission, which seeks to ensure the so-called Tag Suggest function doesn't run afoul of a 2011 agreement in which the social media colossus agreed to government oversight of its privacy practices, according to an article by Reuters.

How Facebook advertisers and third-party applications handle users' personal data was the subject of a Facebook post on August 29. Among the proposed changes was the introduction of a potential Tag Suggest feature that makes use of facial recognition technology to match faces in images with public profile features, Reuters reported.

Having just agreed to fork over $20 million to settle the Sponsored Stories controversy (See "TUOL" post 8/30/12 for background), Facebook doesn't need the FTC "poking" around, so to speak.

School District Learns a Lesson Teaching About Internet Permanancy

A 19-year-old Univ. of Georgia freshman has sued the school district where she attended high school and a school administrator for $2 million in the United States District Court for the Northern District of Georgia for using a bikini-clad Facebook image of her in a county-wide educational seminar without her permission.

In Chelsea Chaney v. Fayette County Public School District & Curtis R. Cearley (Case No. 3:2013-cv-00089), the former Starr's Mill High School student alleges in a 42 U.S.C. sec. 1983 action that her privacy was infringed on, she was defamed and suffered emotional distress when a photo of her in a bikini standing next to a cut-out of rapper Snoop Dogg was employed by the defendants in a presentation to students and parents, ironically, about the long-term dangers of  displaying images on Facebook and the Internet.
                                                                                                                 

Chaney told Atlanta television news station WSBTV that she thought the Facebook image of her taken when she was 17 was only visible to her friends and their friends. She was upset that the image, captioned "Once it's there, it's there to stay," allegedly was posted without her knowledge in the program by defendant Cearley, the school district's director of technology.

Chaney's counsel alleges the Facebook profile photo falsely portrays Chaney as a promiscuous alcohol abuser. The defendants have filed a motion to dismiss the suit. The lawsuit, a cautionary tale, if nothing else, answers the question posed in a song sung by the non-cardboard version of Snoop Dogg: What's My Name?

Anchor Away in St. Louis; Fired for anti-Obama Post

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Larry Conners, St. Louis'  longest-serving 10 p.m. news anchor, has been pink-slipped by KMOV-TV for a Facebook post critical of the Obama Administration, Mediaite reported today.

Conners, who conducted a feisty interview with President Obama during the 2012 campaign, alleged in a May 13 Facebook post: "I don't accept 'conspiracy theories,' but I do know that almost immediately after the interview, the IRS started hammering me....Can I prove it? At this time, no. But it is a fact that since the April 2012 interview...the IRS has been pressuring me."

Conners publicly backed off from his post on the air, but the station wasn't mollified. In a statement regarding his termination on its Web site, KMOV-TV said Conners exhibited an "appearance of bias that is inconsistent with important journalistic standards."

Anchorman consumed by paranoia. News at 10...

Eminem Music Licensor Sues Facebook for Copyright Infringement

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Social media behemoth Facebook and an Oregon ad agency have been sued for copyright infringement [17 U.S.C. sec. 101 et seq.] in the United States District Court for the Eastern District of Michigan by the company that licenses and manages the music of 40-year-old rapper/songwriter Eminem (Marshall Bruce Mathers III).

In the Complaint filed May 20, Eight Mile Style, LLC & Martin Affiliated LLC v. Wieden + Kennedy Inc. & Facebook, Inc. (Case No. 2:13-cv-12268-GAD-MAR), the plaintiffs allege the defendants used an unauthorized version of Eminem's song "Under the Influence" from his Marshall Mathers LP to promote Facebook Home, an Android-compatible smartphone software application enabling users to post Facebook content from their mobile devices that was introduced in April 2013. The Complaint alleges the defendant ad agency selected the music to win over Facebook mogul Mark Zuckerberg, purportedly a big fan of Eminem.

According to a post about the suit by Courthouse News Service, Eight Mile Style LLC has brought 10 copyright infringement suits dating back to 2010. In an article about the copyright suit, the THR, Esq. Web site reported that the defendant ad agency claimed hip-hop producer Dr. Dre, who often collaborates with Eminem, wrote "Under the Influence" by allegedly cannibalizing a Michael Jackson hit, "Give It to Me."

Judge Gershwin A. Drain will preside over the parties' discordant notes.

Timelines Trademark Suit Marches On Toward Trial

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Trial is slated for April 22 in Timelines, Inc. v. Facebook, Inc. (Case No. 11-cv-06867) as United States District Court for the Northern District of Illinois (Eastern Division) Judge John W. Darrah this week denied Facebook's summary judgment motion in the trademark and copyright infringement suit.

According to reports by Bloomberg News and PCWorld.com, Judge Darrah wrote: "At this stage in the proceedings, it is not unreasonable to conclude that as to this group of users, 'timeline(s)' had acquired a specific meaning associated with Plaintiff."

The six-year-old Chicago-based Timelines, Inc. unveiled Timelines.com in 2009 and registered trademarks Timelines.com and Timelines for its site that enables users to organize sporting events, historical occurrences and scientific advances, among other events, chronologically. The plaintiff sued Facebook in 2011 after the Menlo Park, Calif.-based social network created a profile redesign dubbed Timeline that chronologically organizes users' personal history.

Facebook filed a summary judgment motion, offering a fair use defense to the infringement claims and contending that the plaintiff's registered marks were generic and not descriptive enough to warrant federal protection. Judge Darrah noted that the plaintiff had more than 1,000 users and had invested millions of dollars in its Web site in ruling that Facebook "has failed to demonstrate, as a matter of law, that the marks are generic."

Unhappy Meal: 1st A Advocates Fret Over Judge Ordering Lawyer to Remove McDonald's Facebook Posts

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Free speech advocates are worried about Wayne County (Mich.) Circuit Court Judge Kathleen MacDonald's order regarding an attorney's Facebook posts criticizing a controversial settlement in a lawsuit involving fast food giant McDonald's, the Detroit Free Press reported this week.

McDonald's reached a $700k settlement with attorneys in a class action suit that claimed one of the fast food company's franchise restaurants in eastern Dearborn sold non-halal McNuggets and McChicken sandwiches to observant Muslims that it represented as being halal, which to Islam, is akin to kosher to Judaism. The tentative agreement would disburse $25k to the lead plaintiff in the class action, $150k to the Arab American National Museum in Dearborn, $275k to a Detroit-based Muslim health clinic, with the remainder going toward attorneys' fees, according to the Freep article. Those opposed to the resolution argue the proceeds should be shared among Muslims who consumed the alleged non-halal meat in violation of the tenets of their faith.

Chief among those critics is Dearborn attorney Majed Moughni, who posted on his Dearborn Area Community Members("DACM")' Facebook page that the resolution of the suit smacked of a backroom deal, and invited supporters of his position to click the "Like" icon and share their comments. Judge MacDonald lowered the boom on Moughni, branding his posts as "materially false, deceptive and misleading," and accusing him of  "deliberate and abusive conduct which has created a likelihood of confusion of class members" that undermined the court.

Judge MacDonald ordered Moughni to remove his Facebook posts, prominently display copies of the actual settlement on Facebook, provide contact information concerning those who "Liked" his posts, and not to contact class members or putative class members about the case or the settlement. Moreover, she barred Moughni from discussing the case with the news media without first obtaining her written approval.  Her Order was in response to a motion filed by attorneys involved in the settlement who argued Moughni's posts were defamatory and clouded information vital to class members. Judge MacDonald earlier dismissed a lawsuit brought by Moughni on behalf of individuals who purportedly consumed the alleged non-halal offerings. He filed a complaint after receiving upward of 1,300 "Likes" on his site, according to the Freep.

Before Judge MacDonald's ruling, the Freep article stated that Moughni's now-dormant DACM page attracted 20,000 views weekly. It's not clear-cut that the breadth of Judge MacDonald's Order violates Moughni's First Amendment rights, because it is permissible for a court to bar attorneys from making statements that are materially false. That said, requiring Moughni to obtain her written permission before speaking to the news media about the case certainly has the appearance of  an unconstitutional prior restraint on free speech.

Not to confuse fast food franchise slogans, but Judge MacDonald in no uncertain terms has let attorney Moughni know you can't have it your way.

TPC Launches Saturday as 'Conservative' Facebook Alternative

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Already boasting 50,000 members, the social media platform Tea Party Community ("TPC") will debut Saturday as a conservative alternative to Facebook, according to a Fox News report.

TPC is co-founded by Ken Crow and father and son duo Tim Selaty Sr. and Jr. The social network, whose Web site promises: "If you like FB, you're going to love the Tea Party Community," enables participants to "friend" one another and costs nothing to join. 

In the unsolicited opinion of  "TUOL," TPC may draw interest from Facebook's copyright and trademark attorneys because the nascent network has a very similar layout and appears to employ the same color scheme as Facebook, though it uses a different font. "TUOL"'s own crack design team suggests that the Tea Party Community site only be accessible by right-clicking one's mouse and that it not offer a "Like" function, because from what "TUOL" has seen, Tea partiers don't seem to like much of anything anyway.

N.C. Judge's Libel Claim Against Facebook Poster Begins This Week

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North Carolina 26th Judicial District Superior Court Judge F. Lane Williamson this week will preside over the trial of a defamation claim brought by Ola M. Lewis, senior resident superior court judge for Judicial District 13, against a media strategist concerning Facebook posts he wrote during the 2010 Republican state senate primary, the Halifax Media Group-owned Wilmington Star-News StarNewsOnline.com reported.

Judge Lewis, whose baliwick includes Brunswick, Bladen and Columbus counties, sued Edward Lee Rapp, who worked for GOP state Senate candidate Bettie Fennell in her 2010 campaign against Bill Rabon. According to accounts by the StarNewsOnline and ABA Law News Today blog, Rapp posted online criticism of Judge Lewis for purportedly wearing a Rabon campaign button and allegedly claimed Judge Lewis violated the North Carolina Code of Judicial Conduct by openly supporting Rabon.

The Code permits judges who are seeking re-election to endorse other candidates running for office. Rapp apologized for errors in his initial post, maintaining he was unaware Lewis was running for re-election, but contended his online statements in any case were First Amendment protected political speech.

Lewis sued Rapp for defamation in 2010, but a state judge threw out the case a year later, finding the allegedly offensive remarks were protected political speech. The North Carolina Court of Appeals in May 2012, reversed in part, holding that only one of the defendant's two blog posts at issue was protected political speech, remanding the case to the superior court for trial.

Social Media Gains as Political Content Source

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Social media platforms, such as Facebook and Twitter, are just as trusted--and mistrusted-- by voters as traditional media outlets when it comes to providing political information, according to a study reported by the Politico Web site.

The George Washington University Graduate School of Political Management/ORI online survey of 806 Internet users, which has a plus or minus 3.45 percent margin of error, concluded that voters found political information on social media of higher quality, or at least as good as, political data provided via traditional media, such as television and newspapers. Age was a factor among respondents, as 36 percent of older voters polled were skeptical of social media political content, while among voters age 26 and under, 71 percent believed social media platforms outshone traditional media regarding trustworthiness.

Seventy-seven percent of survey participants said they made political contributions via Email or through campaign Web sites, while 19 percent did so via Facebook. The 2012 election was first in which the Federal Election Commission permitted texted contributions, and 18 percent of respondents availed themselves of the text message option to contribute to their chosen candidates, according to the Politico post.

EU & U.S. Social Media Cos. Clash Over Personal Data Use

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Facebook and Google are fighting efforts by the European Union to restrict social media companies' efforts to sell users' personal data to advertising companies, according to a report by Reuters news service.

The growth of mining Internet users' data, such as browsing habits, by social media platforms, including Facebook and Google, has grown exponentially. The Reuters article estimates that Facebook could reap $10 annually from each user's clicking on ads, not exactly small change for a company that boasts 1 billion users.

EU lawmakers, concerned that its citizens have not given permission to have their personal data used in such a manner, are lining up behind European Parliament Member Jan Philipp Albrecht, who produced a report based on the European Commission last year calling for stricter data protection. Albrecht is expected to reveal his plan this week and the EU will vote on his final report in April, Reuters reported.

The plan may include provisions enabling authorities to levy fines against customer data violaters.

Calif. Shields Workers' Social Media Passwords

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Gov. Jerry Brown took to Facebook to post that he has signed two bills that will protect employees and students from having to divulge social media passwords to employers or the universities they attend, Cnet.com reports.

AB 1844, sponsored by Nora Campos, does not allow employers to demand social media account user name and password information from personnel or job applicants. Assemblywoman Campos claims more than 100 such cases are pending before the National Labor Relations Board.

Gov. Brown also signed SB 1349, a measure that prohibits colleges and universities from seeking the same information from students and prospective students. Solons in Washington, D.C. are weighing the merits of the Password Protection Act of 2012 whose aims are similar to AB 1844, according to the Cnet.com article.

Virtual Lobbying

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The nation's capital isn't wanting for lobbyists, but add the Washington, D.C.-based The Internet Association to the list of lobbying groups looking to influence Congress on issues ranging from online security to privacy.

Bloomberg News this week reported that Michael Beckerman will serve as the IA's CEO and president. Group members include Google, Facebook, AOL, Zynga, EBay, Expedia, Monster, LinkedIn and Trip Advisor.  Economic growth in the ether will be one of the organization's principal goals.

First Fall Sighting of Winklevi

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Faithful readers of this blog know that the Winklevoss twins, Cameron and Tyler, of The Social Network cinematic fame, regularly appear in "TUOL" (see posts on 7/26/11, 6/24/11 et al.).  Well, they're back, with Harvard pal Divya Narendra, investing $1 million in SumZero, a social network for professional investors, co-founded by Narendra and Aalap Mahadevia in 2008, according to an article in The Wall St. Journal this week.

The Winklevi duo, who, aided by Narendra, engaged in a protracted legal battle with Mark Zuckerberg over ownership of Facebook that netted the twins a reported $65 million settlement, have turned their attention to Winklevoss Capital, an investment company fueled by their personal wealth, and SumZero is the inaugural beneficiary. SumZero's membership of 75,000 or so is geared toward private equity firms and hedge fund and mutual fund investors, though a small group of outsiders may subscribe by doling out $129 a month to receive a few investment ideas with the blessings of their authors. Members are required to submit investment ideas to maintain access to their fellow members' tips, according to the Journal article.

SumZero plans next month to relocate into office space in Manhattan owned by the Winklevoss boys. You can't keep a good man down--or the Winklevoss's either, apparently.

UPDATE: Judge Nixes Facebook 'Sponsored Stories' Suit Settlement Deal

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Earlier this month, United States District Court for the Northern District of California Judge Richard Seeborg withheld his blessings from the proposed $20 million settlement in Fraley v. Facebook (Case No. 5:11-cv-01726), a putative class action suit arising from Facebook's Sponsored Stories ads.

Under the proposed settlement, Facebook would revise its Statement of Rights & Responsibilities to give members more of a voice in how their personal information is used and agree to dispense $10 million in cy pres payments among various children's, electronic privacy and consumer advocacy groups. Judge Seeborg caught the case after presiding Judge Lucy H. Koh recused herself the day before the settlement hearing (see "TUOL" post 7/12/12). Plaintiffs contend that the Sponsored Stories ads violate California's Right to Publicity ("ROP") statute [Calif. Civ. Code sec. 3344] (see "TUOL" post 12/22/11).

Judge Seeborg refused to sign off on the settlement agreed-to by the parties in part, because it allows for $10 million in legal fees, but nary a penny for the Facebook users purportedly harmed by the Sponsored Stories ads. The $10 million that would be distributed to the various nonprofit advocacy groups is based on ROP, which assesses $750 in statutory damages per infraction. Judge Seeborg said the parties failed to justify the cy pres payments to the groups merely on the argument that it would be unfeasible to divvy up the amount among the "injured" Facebook users.

The court invited the parties either to modify the proposed settlement or to resubmit the resolution with further legal arguments about why it should be approved. Stay tuned.

Teens Poke Classmate in Facebook Ruse; End Up in Pokey

(Photo credit: Wikipedia)The Ft. Worth Star-Telegram reports that two Granbury (Texas) middle-schoolers, ages 12 and 13, who allegedly created a false Facebook page about a 12-year-old classmate, have been charged with online impersonation, a third-degree felony, and face up to 10 years in jail if convicted.

The target of the false page does not participate in Facebook, so the false page flourished for a month and attracted 63 friends before it was shut down, the daily reports. The defendants allegedly featured a celebrity on the fake page who purportedly resembles the victim, and according to the Hood County Sheriff, the page contained profanity and alleged threats against other students that harmed the victim's reputation.

To combat cyberbullying, the Texas legislature passed the online impersonation measure in 2009. Free speech advocates, including the Student Press Law Center, have questioned the constitutionality of the law.

UPDATE: Judge Withdraws from Facebook Privacy Case Day Before Settlement Hearing

(Photo credit: Wikipedia)United States District Court for the Northern District of California Judge Lucy H. Koh has recused herself without explanation from hearing Fraley v. Facebook (Case No. 5:11-cv-01726) the day before a scheduled settlement hearing, Reuters reports.

In a 38-page decision last year, Judge Koh denied the social media giant's motion to dismiss the putative class action suit based on Facebook's "Sponsored Story" Ads, finding the plaintiffs presented an actionable claim under California's Right of Publicity law [Calif. Civ. Code sec. 3344]. (See "TUOL" post 12/22/11.)

The parties reached a settlement under which Facebook purportedly would pay $20 million and users would have more of a say in how their personal information was used, according to the Reuters article.  The terms of any proposed resolution of the case, however, require the presiding judge's approval.

Scheduled dates to hear motions in the case were vacated by Judge Koh and she has asked that another judge take over the matter.

UPDATE: Federal Court Knocks Out Facebook Trademark Suit Against Foreign Porn SIte

(Photo credit: Wikipedia)As noted in the previous post, Facebook has been going through a tough stretch. Let it never be said that The Unruly of Law is above piling on and kicking a litigant when it's down.

United States District Court for the Northern District of California Judge Jeffrey White last week dismissed Facebook's trademark infringement suit against a Norwegian adult Web site for want of personal jurisdiction. In Facebook, Inc. v. Thomas Pedersen & Retro Invent (Case No. 3:10-cv-04673), Facebook sought entry of a default judgment, attorneys' fees of more than $80,000, litigation costs exceeding $13,000 and a permanent injunction against the defendants, operators of Faceporn, the self-described "number one socializing porn and sex network."

In October 2010, Facebook initially sued Faceporn in a 10-count complaint, alleging, among other claims, trademark infringement and trademark dilution. [See "TUOL" post 11/3/10.] According to the paidcontent.org Web site, Facebook, which owns 10 trademarks and has another 17 pending, is dogged in its pursuit of companies that deign to use face or book in their names.

Judge White adopted the recommendation of U.S. Magistrate Nathaniel Cousins's 10-page ruling that Norway, not California, would be the proper forum for Facebook to pursue its claims because the defendants were not subject to personal jurisdiction by the court. The court relied on the three-pronged "effects" test to determine personal jurisdiction as set forth in the Supreme Court decision in Calder v. Jones, 465 U.S. 783 (1984), which requires the plaintiff to show the defendant: 1)committed an intentional act, 2)expressly aimed at the forum state, 3)causing harm the nonresident defendant knew would likely be suffered in the forum state.
Applying Calder, Judge White said Facebook failed to show Faceporn's California viewer base (an estimated 250 users) was an integral part of the defendant's business model and profitability and thereby, establish personal jurisdiction. The court did not see Faceporn as being in direct competition with Facebook.

At times such as these, at least Facebook has millions of "friends" on whom it can lean.

UPDATE: Sponsored Story Suit Put to Rest by Facebook?

(Photo credit: Wikipedia)It hasn't been the best of weeks for social media leviathan Facebook. Its stock has performed poorly since its IPO ("It's Probably Over-valued"), shareholder suits already have been filed, and inquiries into the launching itself are underway.

Now comes word, via the Wall St. Journal Law Blog (Blogs.wsj.com) that Facebook is on board with a "settlement agreement in principle" with users who allege Facebook commercially exploited them without their consent.

United States District Court for the Northern District of California Judge Luch H. Koh revealed in a Case Management Order that a resolution may be imminent in the case of Fraley v. Facebook (Case No. 11-cv-01726-LKH). Last December, Judge Koh refused to dismiss the putative class action suit against Facebook based on its "Sponsored Story" ads [see "TUOL" post 12/22/11].

A Sponsored Story ad is created when a user "likes" a product or service, which is then transmitted to that user's friends. The plaintiffs contend the Sponsored Story ads run afoul of California's right to publicity statute that guards against the unauthorized use of an individual's image, name or voice for a commercial purpose.

Neither side has confirmed the existence of a settlement or disclosed terms.