The Chairman of the Federal Communications Commission (FCC) has proposed a set of Internet consumer privacy regulations that would be applicable to providers of wireless and broadband internet services (such as Comcast, Verizon, etc.) (collectively, “ISPs”), akin to current regulations imposed on telephony services. If approved, the proposed regulations would represent some of the most stringent standards enacted by a regulatory agency in the technology sector. In sum, the proposed mandates would require that ISPs employ minimum data security standards and significantly limit what they are able to collect about their customers, as well as how that information is shared with third parties. Currently, ISPs can automatically collect all unencrypted information relating to any customer activity that takes place over its network, including with respect to devices connected to the network, such as surfing habits, app usage and location, to create a unique consumer profile—a valuable asset for online advertisers seeking to tailor their marketing campaigns based on consumer behavior. Under the new regulations, ISPs would be required to obtain their customers’ consent before sharing certain personal information, including with third party online marketers and advertisers. Many ISPs have been vocal against the imposition of any increased regulation in the privacy sector, arguing that data collection by ISPs should not be subject to higher scrutiny than the practices of other web-based service operators, such as Facebook, where targeted advertising is often a central component of their respective business operations. Companies that operate on the Internet but do not provide access to the Internet are currently monitored by the Federal Trade Commission (FTC) and do not fall under the umbrella of the FCC. Continue Reading
Over the last 20 years, Internet-based programming services and the corresponding distribution platforms have continued to evolve at a staggering pace, with technological advances allowing for faster and more cost-efficient transmissions. The last five years, in particular, have demonstrated to many that the Internet may well be the “projected” Promised Land for the television industry. Established cable programming networks, including HBO, ESPN and others, have leveraged the Internet and created compelling services, including apps and direct-to-consumer offerings. Cable operators and other multi-channel video programming distributors have embraced TV Everywhere and continued to expand the variety and breadth of their IP-connected products and services, offering subscribers an all-in-one linear, on-demand and time-shifted entertainment solution. Even so-called “over-the-top” providers, such as Netflix, Amazon and Hulu, have fully emerged with compelling original programming and viable licensed content.
The march towards an IP-connected frontier, which has been largely driven by the convergence of cloud-based products and services with the delivery and consumption of entertainment content, is now presenting unprecedented opportunity, and the U.S. legal system, together with its rules and regulations, and corresponding court decisions, has neither advanced the ball nor halted the progression to any significant degree. While U.S. courts in the last 10 years have stymied fringe players looking to bring broadcast television to the Internet, such as iviTV and Aereo, they have been decided slow and methodical in their approach to creating new legislation and/or precedent for a rapidly evolving medium which drives some of the U.S.’s most important industries – namely, media, entertainment and technology.
The latest foray into this storm of industry evolution was spearheaded by the U.S. Federal Communications Commission (“FCC”) late last year, when it proposed that the definition of the term “multichannel video programming distributor” (“MVPD”) under the U.S. Communications Act be modernized to include certain internet-based programming services – a decision which, among other things, could ultimately result in these entities possessing the rights and the responsibilities of an MVPD – in other words, think of an Aereo-like entity with the right to retransmit a broadcast television line-up. Continue Reading
Hughes Hubbard & Reed LLP represented AMC Networks Inc. in its recent acqusition of a 49.9% stake in BBC America valued at $200M. Businessweek’s press release highlights the significance of our DigitalHHR team members’ depth of expertise and involvement in the critical elements of this complex transaction, which raised unique intellectual property concerns and content production and distribution issues. Additional details surrounding the deal can be found here.
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
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
- 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;
- 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;
Additional Disclosures Required by AB370
In addition to the disclosures set forth above, AB370 introduces the following disclosure obligations for operators:
- 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
- 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.
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.
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 Aereokiller 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
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.
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.