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.

News Photogs Snap Over Exclusion From White House Photo Ops

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The news media's and the Obama Administration's tenuous relationship has taken a turn for the worse as 38 news organizations, ranging from the New York Times and the major networks to the Reporters Committee for Freedom of the Press, fired off a letter to Obama Press Secretary Jay Carney objecting to photojournalists being excluded from numerous White House events.

According to accounts by Reuters and the Washington Post, the press members are upset that news photographers have been barred from snapping pictures at "private" events where the White House subsequently releases its own photos through the social media, generally taken by Chief Official White House Photographer Pete Souza (full disclosure: the photo-lovin' staff of "TUOL" last month attended an event honoring Souza at Boston University's College of Communication, from which Souza and "TUOL" both graduated).

The press corps cited a half-dozen events, including President Obama being photographed sitting in the same bus as civil rights heroine Rosa Parks rode in 1955 and the President sitting in the same jail cell once occupied by Nelson Mandela, that were newsworthy but photographed only by the White House's own photographer.

Whereas the White House considers the photos generated by Souza and other White House photographers as extending to the public access to the president's activities, those who sent Carney the letter dismiss them as "visual press releases."

With the disastrous rollout of the Affordable Care Act and the ongoing NSA spying disclosures, the Obama Administration doesn't need to erode further its shaky relationship to the press by reserving to itself the decision as to what constitutes news versus an Obama family "Kodak moment."

UPDATE (11/26/13): USA Today and the Tacoma News Tribune today said they no longer will accept for publication photos provided by the White House for events that the news outlets believe should have been accessible to the press.

Cruz (Out of) Control; FCC in Limbo

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So little time, so much destruction to reap.

Fresh from leading the GOP 16-day government shutdown, U.S. Sen. Ted Cruz (R.-Texas) this week blocked the scheduled Senate vote Wednesday on Democrat Tom Wheeler, President Obama's choice to head the Federal Communications Commission, Reuters wire service reports.

Senate Majority Leader Harry Reid (D.-Nev.) can force a vote on the nomination if he can muster 60 Senate votes, generally difficult to do, though there is enough bipartisan detestation of Sen. Cruz that it may be possible.  Republican Congressional staffer Michael O'Rielly's FCC commissioner nomination also is awaiting a Senate vote, leaving what is supposed to be the five-member FCC Commission at loose ends.

Acting FCC Chair Mignon Clyburn also has had to contend with all but a couple dozen of the FCC's 1,700 staffers being furloughed during the shutdown, according to the Reuters article. Perhaps the FCC, overseer of the airwaves, was somehow interfering with the voices Sen. Cruz is hearing in his head chanting "President Cruz in 2017."

Canadians Un-Bundle for Approaching Cable Snap

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Canadian cable and satellite tv viewers may soon pick and choose which stations to watch without being saddled with bundles of stations of no interest to them, Reuters reports.

Industry Minister James Moore said Canada's Conservative government wants to unbundle tv channels to enable viewers to purchase the particular stations that they want to view. Some satellite and cable tv providers are taking the hint and already are touting "a la carte" pricing, the Reuters article noted.

Down at the Wire

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Reuters is slashing five percent of its editorial workforce worldwide, the New York Observer (www.Observer.com) reported today.

Coming on the heels of the wire service's decision to abandon consumer facing site Reuters Next after a two-year gestation period, Reuters President and Editor in Chief Stephen Adler said the reduction in force would affect all levels of the news agency, including management.

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.

Look Out Belo: Gannett Buys TV Giant in Philosophical Shift From Print to Broadcasting

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McLean, Virginia-based media conglomerate Gannett Co., the nation's largest owner of newspapers, seeing the writing on the wall, is acquiring Dallas-based Belo Corp.,which will make Gannett the fourth-largest owner of network television outlets, according to reports by Reuters and Gannett flagship newspaper, USA Today.

The sale is slated for completion by the end of the year, pending antitrust approval, FCC blessings and the ok of two-thirds of Belo's shareholders, the latter of which is a fait accompli, as Belo's directors and executive officers, holders of 42 percent of outstanding shares, already have given the deal their thumbs up.

Gannett, which counts USA Today,  the Detroit Free Press and The (Louisville) Courier-Journal among its stable of 82 newspapers, will nearly double its television holdings to 43 stations with the addition of Belo's 20 stations, nine of which are in the country's largest markets. Gannett expects to reach almost one-third of U.S. households with the acquisition.

As the newspaper industry continues to take on water with declining circulation and shrinking ad revenues, Gannett, which draws most of its revenue from print, is seeking a makeover. Once finalized, the transaction will enable Gannett to derive almost two-thirds of its pre-tax, pre-interest earnings from its combined digital and broadcast segments.

Belo Corp. previously saw the light in 2008 when it severed its broadcasting holdings, which range from KVUE-TV in Austin and KGW-TV in Portland, Ore., to KMOV-TV in St. Louis, from its newspaper assets, which were spun off into the publicly traded A.H. Belo Corp.

Directors of both companies unanimously approved the $2.2 billion deal, which involves Gannett forking over $1.5 billion in cash and assuming $715 million in debt from Belo.

Boston Marathon Bombing 'Bag Men' Front Page Photo Sparks Libel Suit Against NY Post

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A defamation suit against the News Corp.-owned tabloid New York Post has been filed in Suffolk County (Mass.) Superior Court by two men who appeared in a page one photo at the peak of the police manhunt for the Boston Marathon bombers.

According to articles by Reuters and the National Law Journal, 24-year-old Yassine Zaime and 16-year-old Salheddin Barhoum are suing the Post for defamation, invasion of privacy and intentional infliction of emotional distress. The two Moroccan emigres, avid running enthusiasts, watched participants near the finish line in the Boston Marathon in April, but left two hours before rigged pressure cooker explosive devices detonated, killing three and wounding hundreds of spectators.

According to the plaintiffs' complaint, the two men voluntarily went to their respective local police stations to answer questions about their presence at the race after learning that a photo of them was circulating on various social media sites. The complaint states that on April 18, the same day police purportedly exonerated them, a photo of the two men appeared on page 1 of the Post with the headline: "Bag Men: Feds seek this duo pictured at Boston Marathon."

The lead sentence of the Post story that day began: "Investigators probing the deadly Boston marathon bombings are circulating photos of two men spotted chatting near the packed finish line, the Post has learned."  Inside pages depicted two more photos of the plaintiffs, in one of which, a plaintiff's head was circled in red and captioned: "Cops are seeking these two men (above) who were spotted near the site of the Boston blasts."

Later that same day, the FBI released photos of  two Chechen brothers authorities identified as suspects in the bombing, Tamarlan and Dzhokhar Tsarnaev, the former of whom died in a firefight with police and the latter of whom remains in custody.

"The plaintiffs were not suspects and were not being sought by law enforcement," the complaint alleges. "The Post had no basis whatsoever to suggest that they were, especially in light of a warning on Wednesday to news media, by federal authorities, to exercise caution in reporting about this very matter."

The complaint further alleges: "The front page would lead a reasonable reader to believe that plaintiffs had bombs in their bags, that they were involved in causing the Boston Marathon bombing."

For its part, the Post maintains it never identified the two men as "suspects," but rather, as two men whom police wanted to find. Included in the Post story on April 18 was a sentence that read: "It was not immediately clear if the men in the law-enforcement photos are the same men in the surveillance videos."  The Post has not published an apology to Zaime or Barhoum.

Washington Post-Apocalypse: 1Q Net Income Plunges 85 Percent

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Congress isn't the only Washington, D.C. institution that hemorrhages money.

Slammed by the double whammy of newspaper readers and advertising revenue going out the door and a poor performance by online educator Kaplan, Inc., the Washington Post Co. Friday reported an 85 percent decrease in First Quarter earnings compared to a year ago, according to a Reuters report.

The Washington Post suffered a 4 percent drop in advertising revenue to $127.3 million and was saddled with a $34 million operating loss associated with severance costs. On a very modest positive note, the company's cable and television holdings pushed overall revenue up .4 percent to $959.1 million, according to the Reuters article.

The breadth of the company's grim performance is evident in the 2013 1Q net income figure of $4.7 million or 64 cents a share, compared to 1Q results a year ago of $31 million or $4.07 a share. Poor financial performance by the WaPo Co. is becoming the norm (see "TUOL" post 5/10/11).

Burundi Cracks Down on Press Freedom

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The landlocked Central African nation of  Burundi, recently emerged from a decade-long civil war, took a step backward this week when the National Assembly passed a media law that the country's journalism union condemned as an unconstitutional assault on press freedom.

Reuters news service reports the bill, which requires senate approval before President Pierre Nkunrunziza can sign it into law, subjects offending journalists to fines ranging from $2,000 to $6,000 and bars the media from reporting about public safety, national defense or the plunging national currency that lost 14 percent against the U.S. dollar last year. New York-based Human Rights Watch cautioned that the government has been attempting to stifle press criticism of violence perpetrated by the current regime.

Sporting News Flirts with U.K. Digital Rights Co. While Paring Staff

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The American City Business Journals Inc. ("ACBJ")-owned Sporting News is teaming up with U.K. digital rights company, Perform, on a near-$6 million venture based in New York, Reuters wire service reported today.

Meanwhile, The Sporting News, a 127-year-old brand that in its print magazine incarnation was known as the "Bible of Baseball" before it expanded its coverage to other sports in the 1960s, is slashing its budget, reportedly trimming a dozen editorial slots, according to Thebiglead.com Web site.  Among the prominent sports journalists axed were former New York Times reporter Clifton Brown, soccer writer Brian Straus and one-time Boston Globe sportswriter Lisa Olson.

According to Reuters, Perform is kicking in $1.4 million to ACBJ's $4.6 million initial investment in their joint venture. Perform Sporting News Limited ("PSNL") will own 65 percent of PSNL, and ACBJ will have a  35 percent stake in the venture, which Perform may acquire for $65 million up to 2017, Reuters reported.

Perform acquires online rights to sporting events and distributes video clips and live content for a price to newspaper Web sites and other groups, including bookmakers. 

UPDATE: Federal Judge: Electronic Clipping Service Infringed on AP Copyright

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In The Associated Press v. Meltwater U.S. Holdings, Inc. (Case No. 12-cv-1087), United States District Court for the Southern District of New York Judge Denise Cote this week granted AP summary judgment, holding that the defendant news aggregator infringed on the wire service's copyrighted material without paying licensing fees.

AP last year filed suit against SanFrancisco-based Meltwater, a subscriber-only electronic clipping service whose corporate clients track reporting about themselves and their industries, alleging copyright infringement and hot news misappropriation. (See "TUOL" post 2/16/12.) According to a Reuters wire service story, Judge Cote ruled for AP and denied Meltwater's summary judgment motion, with one exception, in her decision, which has not yet been released to the public.

Parliament Expected to Pass Press Regulatory Package

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Embattled English Prime Minister David Cameron dodged a potentially embarrassing parliamentary defeat when U.K. lawmakers Monday agreed in prinicple on a compromise  package that introduces controls on the country's scandal-crazed press, Reuters news service reported.

The proposed legislation that has garnered support from Cameron's Conservative Party and  lawmakers from the opposition Labour and Liberal Democrats would impose fines of up to one million pounds ($1,511,253) on offending journalists, force newspapers to publish prominent apologies and create a press regulator. Parliament was spurred on by Rupert Murdoch's News of the World press phone hacking scandal that led to hearings in 2011-2012 and a report in November 2012, by Lord Justice Leveson that recommended, among other reforms, replacement of the Press Complaints Commission by an independent regulator with sharper teeth.

Before legislators from the three major parties ironed out whether the proposed legislation would create a press regulator and how members of the overseer would be selected, Parliament was scheduled to vote Monday on Cameron's proposal, under which the press was more self-regulatory.  Cameron had argued his  proposed measure was more sensitive to the importance of a free press, but critics claimed the package was watered-down and a reflection of the too-cozy relationship between politicians and the press.

Barnes & Noble's Ignoble Nook Losses

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Although the Nook e-reader made a big splash when it debuted in 2009, Barnes & Noble, the nation's biggest bookstore chain, suffered a 25.9 percent drop in Nook revenues, including readers and e-book sales, for the fiscal third quarter ending January 26, Reuters reported.

Nook losses increased twofold, exceeding $190 million, as the company slashed prices on e-readers and tablets in the face of dismal sales during the holiday season, according to Reuters. B & N broke off its college bookstore business and Nook division last year under the Nook Media umbrella. The move attracted muscular investors such as Microsoft Corp. and Pearson LLC, though B & N retained a 78 percent ownership interest in Nook Media.

Although the book club enthusiast staff of  "TUOL" continues to suffer paper cuts turning the pages of old-fangled books, the cutting-edge blog has studiously followed the progress and current decline of Nook (see "TUOL" posts 4/25/11, 2/9/10).

New York Times Looking to Unload Papers 'en Mass.'

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The Gray Lady apparently is weary of  long-distance relationships, as Reuters, AdWeek and others are reporting that The New York Times wants to sell The Boston Globe and The Worcester Telegram & Gazette.

The Times has enlisted the aid of Evercore Partners to advise on the sale of the properties in its New England Media Group, which include the Globe, Telegram & Gazette, the two dailies' Web sites and GlobeDirect, a direct mail marketing company.

Newspaper industry analysts expect the Times to take a bath in the deal. One analyst, according to Reuters, thought the purchase price for the Globe, New England's largest daily newspaper, might be in the $150 million range, a far cry from the $1.1 billion the Times paid to acquire the broadsheet in 1993.

The Times' Media Decoder Blog reported that the Times rejected a $35 million offer to sell the Globe in 2009, the AdWeek article stated.  The 360 or so souls in the Globe newsroom are understandably antsy, while media prognosticators are reveling in the parlor game of identifying the Globe's suitors.  Times CEO/President Mark Thompson said the Times wants to concentrate on its own brand and journalism as explanation for why his paper wants to end what at times has been a trying marriage.

The Globe is "TUOL"'s local newspaper, and the devoted staff, which currently is exasperated by increasingly late delivery of the paper, expects a local buyer to step to the forefront, rather than an out-of-state entrepreneur or media conglomerate.

Fox News Journo Seeks to Quash Subpoena in Aurora Shooting Coverage

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Arapahoe County (Colo.) District Court Judge William Sylvester has scheduled a hearing for April 1, according to a Reuters wire service story, on whether New York-based Fox News journalist Jana Winter will have to testify pursuant to requests by attorneys for defendant James Holmes, the accused in the mass shooting last July at an Aurora theater screening of The Dark Knight Rises that left 12 dead and 58 wounded.

Prosecutors fear the start of the trial of Holmes will be delayed, but defense counsel contend Winter's coverage could taint the jury pool and interfere with their client's right to a fair trial by an impartial jury. Defense counsel want Winter to testify concerning the identities of anonymous law enforcement sources regarding her story about a notebook Holmes allegedly sent to Univ. of Colorado psychiatrist Lynne Fenton, the contents of which allegedly address plans for a mass killing, Reuters reported. Winter's story was reported after a gag order issued by Judge Sylvester took effect.

Winter is expected to challenge a subpoena to testify on First Amendment grounds, asserting reporter's privilege and looking to shield law protection from having to divulge confidential sources to authorities. Both New York [N.Y. Civ. Rights Law Art. 7, Sec. 79-h], where Winter is based, and Colorado [Colo. Stat. Sec. 13-90-113], where the trial will occur, boast shield laws that require authorities to show a compelling need for information that they are unable to obtain elsewhere before compelling journalists to testify.

Barnes & Noble, Not Brick & Mortar

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Following a brief surge after competitor Borders Group, Inc. went belly-up (see "TUOL" post 7/20/11), Barnes & Noble saw a near-11 percent drop in sales at its bookstores and on its Web site this past holiday season, according to a Reuters wire service article.

B & N CEO Mitchell Klipper told the Wall St. Journal that his company plans to shutter nearly a third of its brick and mortar bookstores over the next decade, according to the Reuters piece. The company, which presently operates 689 retail stores and  674 college bookstores as a separate chain, will likely reduce in size to roughly 500 stores within the next ten years, Klipper noted.

Online competition such as Amazon and the boom in e-books are contributing factors in the shrinking bookstore market.

UPDATE: Pink Slime Headed Toward South Dakota Court?

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United States District Court for the District of South Dakota Judge Karen Schreier will hear
 arguments from Beef Products, Inc (BPI) seeking to remand its $1.2 billion defamation suit against ABC News to state court, Reuters wire service reported.

The case, Beef Products Inc. et al. v. American Broadcasting Cos. et al (Case No. 12-292), brought last year by the nation's largest producer of lean finely textured beef filler unaffectionately dubbed pink slime,  (See "TUOL" post 9/14/12) alleges the defendants, including anchor Diane Sawyer, harmed the plaintiffs' reputation by alleging the filler, made from ammonia-sprayed fatty trimmings, was not "meat" and harmful to the public.

Plaintiffs' counsel contended in papers filed in federal court last week that the South Dakota state court is the proper forum to hear the case because  BPI Technology, Inc. and Freezing Machines, two entities the plaintiffs allege are related to the suit, do business in South Dakota. The two companies, as well as BPI, are owned by Eldon and Regina Roth, according to the Reuters story.

The case was originally filed last September in Union County (S.D.) Circuit Court before ABC removed the action to federal court. The defendants have moved to have BPI Technology and Freezing Machines dropped as parties to the case and sought dismissal of the entire suit.  Plaintiffs, who also are seeking punitive damages, could possibly, if successful in their suit, receive treble damages under South Dakota's Agricultural Food Products Disparagement Act.

Federal Judge Backs Photog in Social Media Copyright Claim

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United States District Court for the Southern District of New York Judge Alison Nathan this week in Agence France Presse v. Morel (Case No. 10-cv-02730) granted, in part, a summary judgment motion brought by a photographer who claims news organizations infringed on copyrighted images he posted on Twitter.

According to a report by the wire service Reuters, photographer Daniel Morel tweeted photos he took of the destruction caused by an earthquake in Haiti in January 2010. Defendant Agence France Presse (AFP) transmitted Morel's photos to defendant Getty Images, four of which were published on the Web site of defendant Washington Post , which subscribes to Getty, according to the court ruling.

AFP contended the photos in question were available for re-use once they were posted on Twitter, but Judge Nathan found AFP and the Washington Post infringed on Morel's copyright because the social media platform's terms of service did not grant a license to the defendants to reproduce the images without Morel's permission. The court imposed a ceiling on the amount of damages Morel could recover, did not rule on the infringement claim as to Getty Images, and left unresolved other issues for trial, a date for which has not yet been set.

The Reuters article reported that Morel countersued the defendants after AFP initially filed suit against Morel in March 2010, seeking a determination that it had not infringed on Morel's copyright. Twitter, which is not a party to the suit, takes the view that users of the service own their photographs that are posted on Twitter.

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.