Digital HHR

Digital HHR

on the cutting edge of convergence

California Continues Campaign against Online Tracking

Dan Schnapp Posted in Advertising, Privacy, Regulations, Technology

As we’ve previously discussed, the State of California’s new amendment to the California Online Privacy Protection Act (“CalOPPA”) took effect on January 1, 2014.  One key component of this new iteration of the statute is the requirement of website operators to disclose how they respond to web browser “do not track” (“DNT”) signals or other similar mechanisms that provide a consumer with the ability to exercise choice over the collection of personally identifiable information (“PII”), including information about that consumer’s online activities over time and across third party websites or other online services.  It may not affect a website’s ability to track internally, use third party analytic services, or track based on information that doesn’t include PII (such as IP addresses), but the new disclosure requirements are still burdensome.

Website operators that do not comply with CalOPPA will be issued a 30-day warning/grace period to modify their practices to ensure compliance.  The California Attorney General’s Office recently published guidelines to assist website operators with their compliance efforts.  Although not technically binding, the guidelines reveal changing expectations regarding online privacy and, in light of the California Attorney General’s aggressive stance on compliance monitoring and enforcement, all website operators should take notice of what has been deemed acceptable conduct under CalOPPA. Continue Reading

#ThinkBeforeYouPin: FTC Considers “Pinning” by Contest Entrants an Endorsement Requiring Disclosure

Alexis Robinson Posted in Advertising, Contest/Sweepstakes, Fashion, Internet, Regulations, Social Media, Technology

Over the past decade, social media has emerged as one of the world’s most dominant marketing tools for obvious reasons:  it is cost-effective, easily accessible, highly scalable and can dramatically increase brand awareness across multiple outlets and platforms.  Arguably, the most advantageous aspect of social media marketing is the ability for companies — both large and small — to directly engage with their consumers and target their specific interests.

One way companies have recently been capitalizing on the benefits of deploying marketing campaigns on social media is through the use and administration of contests and sweepstakes.  However, running a social media contest or sweepstakes is not without risk.  Not only must companies comply with both state and federal sweepstakes laws as well as the social media platform’s own promotion rules, but as confirmed in a recent closing letter issued by the Federal Trade Commission to fashion brand Cole Haan, sweepstakes and contest administrators must also ensure compliance with the implied endorsement mandates of the Federal Trade Commission Act (the “FTC Act”).   The FTC began its investigation into Cole Haan after being alerted of a contest which the fashion brand had launched on Pinterest to promote its footwear line.  The contest rules instructed participants to create Pinterest boards with 5 images from Cole Haan’s Pinterest board (note:  Pinterest revised its contest rules to prohibit users from requiring a certain number of pins, or pinning from a specific selection, as a requirement for contest entry), 5 images of the participants’ “favorite places to wander”, and the hashtag #WanderingSole as part of each pin description.  The contestant with the most creative board was eligible to win a $1,000 Cole Haan shopping spree.  Based on the unobvious “material connection” between the contestants and Cole Haan, however, the FTC determined that requiring contestants to pin Cole Haan products constituted an “endorsement” under Section 5 of the FTC Act, necessitating a disclosure that contestants were incentivized to pin to win the shopping spree. Continue Reading

Privacy Alert – Amendments to CalOPPA in Effect as of January 1, 2014 – Have you Reviewed Your Privacy Policy?

Digital HHR Posted in E-alert, Privacy, Regulations

On September 27, 2013, the State of California enacted Assembly Bill No. 370 (“AB370”), amending the California Online Privacy Protection Act (“CalOPPA”).  CalOPPA requires any operator of a commercial website or online service provider that collects personally identifiable information (“PII”) from any individual residing in California (collectively, “operators”), whether through a website, mobile application or otherwise, to conspicuously post a privacy policy and comply with such privacy policy.  Prior to the passage of AB370, CalOPPA required that such privacy policy disclose the following:

  1. A description of the categories of PII that the operator collects, as well as the categories of third parties with whom such PII may be shared;
  2. A description of the process maintained by the operator that allows an end user to review and request changes to any of his or her PII that is collected;
  3. A description of the process maintained by the operator for  notifying an end user of any material changes to its privacy policy; and
  4. The effective date of the operator’s privacy policy.

 

Additional Disclosures Required by AB370

 

In addition to the disclosures set forth above, AB370 introduces the following disclosure obligations for operators: 

  1. To the extent that an operator engages in the collection of PII about an individual’s online activities over time and across third party websites or online services, such operator must disclose how it responds to web browser “do not track” (“DNT”) signals or other mechanisms that provide consumers with the ability to exercise choice regarding the collection of such PII; and
  2. An operator must disclose whether third parties may collect PII about an individual over time and across different websites when an individual uses the operator’s website or online service.

 

What it Means for You

 

The State of California has previously taken the position that operators that fail to comply with the requirements of CalOPPA will be issued a warning, coupled with a 30-day cure period in which to comply.   Those operators failing to comply with such requirements within such 30-day period will be deemed in violation and may be fined heavily under California’s Unfair Competition Law. 

Compliance with these new disclosure requirements poses significant challenges to operators.  Despite the efforts of industry groups such as the World Wide Web Consortium’s Tracking Protection Working Group, no clear industry standard has yet to be established in order to guide operators in their identification of and response to DNT signals or other mechanisms now regulated under CalOPPA.  Additionally, the lack of standard protocols transcends further to the actual technology.  For example, although web browsers have now generally implemented DNT functionality for end users, these features vary from browser to browser, further complicating operators’ compliance efforts.  

The DigitalHHR team has received numerous inquires regarding the implications of AB370 and continues to monitor the latest developments surrounding this constantly evolving discussion.  Despite the uncertainty, operators of websites and online services should review their privacy practices and policies immediately in order to assess whether revisions are necessary in order to comply with AB370.  If you have any questions, please feel free to reach out to us.

Dan to Moderate Panel at the Stern School’s Entertainment, Media and Technology Summit

Digital HHR Posted in Events, Television

On November 6th, Dan will be moderating a panel  titled “Content Distribution in a Digital World” at the 2013 Entertainment, Media and Technology Summit held by NYU’s Stern School of Business, an annual event which brings together business executives  in the entertainment, media and technology industry to discuss the myriad opportunities and challenges for industry stakeholders in the digital media sector.    Dan’s panel will be focusing on the  key issues and trends arising in the digital television content distribution ecosystem, including development and implemenation of novel monetization and audience engagement strategies as well as the effect of disruptive technologies and service offerings on the status quo.  Joining Dan on the panel will be digital media executives from CBS, NBC, EPIX and A&E.

Click here for more information on the Entertainment, Media and Technology Summit.

The Battle for Cloud City: Aereo Continues to Push Copyright Disruption to the U.S. Supreme Court

Dan SchnappMatthew Syrkin Posted in Cloud, Copyright, Internet, Technology

As the convergence of cloud-based products and services with the delivery and consumption of entertainment content continues to gain steam in the U.S., multiple courts across the U.S. are being asked to weigh in on the copyright implications of a new type of online TV service offered by two entities—namely, Aereo and FilmOn X (aka cloud cityAereokiller and Barry Driller).  A cross-country surge of litigation in the matter is testing the balance between copyright holders’ exclusive rights to exploit their works and consumers’ and service providers’ ability to make lawful use of these works through emerging cloud-based technology solutions. Since our last article on the subject, litigation involving these two service providers has now spread from courts in New York and California to courts in Massachusetts, Utah and the District of Columbia—and now, the U.S. Supreme Court has been asked to weigh in by the plaintiffs. Continue Reading

Dan to Speak at Cloud Computing West 2013 – Revolutionizing Entertainment and Media

Digital HHR Posted in Cloud, Events

On October 28th, Dan will be participating on a panel  titled “Outstanding Issues for the Adoption of Cloud Computing in the Entertainment and Media Sectors” at the Cloud Computing West 2013 Conference in Las Vegas, a two day event  jointly sponsored by the Cloud Computing Association and the Distributed Computing Industry Association which brings together multiple stakeholders in the cloud-based distribution space (content creators, copyright holders, distributors and technology solution and  service providers alike) to discuss the  latest advances and challenges presented in the implementation of cloud-based solutions for the storage, delivery, distribution and exploitation of high-value entertainment content.   Joining Dan on the panel will be executives from Netflix, Microsoft, Amazon and Las Vegas Sands Corporation, among others.   

Click here for more information on Cloud Computing West 2013.

Lindsay to Lead Workshop at Social Media Strategies Summit

Digital HHR Posted in Events, Social Media

On September 17th, Lindsay Orosz will be leading a workshop titled “Think Before You Tweet! - Untangling the Social Media Ecosystem and the Legal Risks That Come Along for the Ride” at the Social Media Strategies Summit in Boston, a three-day event which brings together executives from top brands to focus on managing successful social media footprints and employing other strategies in the context of constant digital disruption.  Lindsay’s presentation will highlight, among other things, critical legal and business challenges organizations must consider as they build and enhance their social media presence, while aiming to provide practical solutions in order to face these concerns head on. 

Click here for more information on the Social Media Strategies Summit.

Netflix-Virgin Media UK Deal Opens Front Door for “Over-the-Top” Services

Digital HHR Posted in Technology, Television

Virgin Media has become the first major pay-TV provider to integrate Netflix’s subscription video service on its cable system.

Starting this week, a select number of Virgin Media customers will be able to access Netflix directly through an app on Virgin Media’ TiVo set-top boxes. Those customers will still need a separate Netflix account (which they can set up through the app) and, for now, billing for customer’s pay-TV and Netflix subscriptions will be separate. Virgin Media is expected to roll-out the app to all its TiVo boxes later this year.

The agreement is a breakthrough for Netflix. Its app is not available on US cable systems, with providers generally viewing Netflix as a competitor to their own pay-TV services and offerings. And enabling viewers to access Netflix on their TVs, without needing internet access (either directly through the TV or through a device or console, like Apple TV or Xbox 360) may pave the way for Netflix to expand its subscriber base.

Whether or not other cable providers (whether in the UK or here in the US) follow Virgin Media’s lead is yet to be seen. But this could be the first of many deals that may lower the barrier for OTT services to get into living rooms and dens around the world.

DigitalHHR Receives Chambers USA Honors

Digital HHR Posted in Firm News, Press/Publications

DigitalHHR received Band 3 honors in Chambers USA’s “Media & Entertainment” category in its 2013 rankings. In addition to highlighting the practice group’s “new media and technology expertise” and the team’s representation of “the media industry’s most prominent traditional and digital entities”, Dan Schnapp was specifically recognized as an “up and coming” practitioner in the space, receiving kudos from clients for being “thoughtful, responsive and clearly knowledgeable on the subject matter.” The complete write up and practice profile can be found here. Ranked in_US_firm_2013_300dpi

Copyright Disruption in the Cloud: Latest Appellate Court Decision in Aereo Case Widens U.S. Court Split Over Rights Required for Streaming Entertainment Content from the Cloud – One Step Closer to U.S. Supreme Court Showdown?

Dan SchnappMatthew Syrkin Posted in Cloud, Copyright, Litigation

The ongoing convergence of cloud-based products and services with the delivery and consumption of entertainment content continues to raise novel legal questions in the United States. As more and more businesses turn to the cloud, the scope and bounds of copyright law, in particular, continue to be impacted by new and disruptive offerings promising consumers the “cloudification” of their entertainment content. Whether conceived of in the form of a remote, cloud-based DVR, a Slingbox-enabled satellite TV set-top box or a dime-sized antenna receiving and transmitting TV broadcasts via the cloud, U.S. courts over the last six years have continually weighed in on the balance between copyright holders’ exclusive rights to exploit their works and consumers’ and service providers’ ability to make lawful use of these works through emerging cloud-based technology solutions. Continue Reading