Header graphic for print

Socially Aware Blog

The Law and Business of Social Media

Status Updates

Posted in Status Updates

Status Updates

Posted in Status Updates
  • A Gallup survey found that a majority of Americans do not turn to social media when making purchasing decisions — but the survey appears to be flawed in several respects, especially because the information was gathered 18 months ago, which, let’s face it, is a virtual lifetime in social media marketing.
  • Google has begun to implement the newly recognized European “right to be forgotten” by removing personal data from its search engines in response to user requests. Other providers such as Microsoft are beginning the same process, and at least one company — France-based Reputation VIP — has launched a website to facilitate removal requests.
  • By the way, before we forget, this is what you’ll see when Google removes “forgotten” search results.  No word yet on what EU regulators think of this . . .
  • Social media and even video games have become crucial ways in which health professionals can convey important information about HIV prevention to people at high risk of infection.

Google Glass Into Europe – A Small Step or a Giant Leap?

Posted in Privacy, Wearable Computers

Google Glass (“Glass”) is the most high profile of the new wearable technologies that commentators predict will transform how we live and work.

Until now, the Android-powered glasses were only available in the U.S.  However, as of this week, Glass has been launched in the UK. Now, if you are 18 years old, have a UK credit card and address and a spare £1,000, you can purchase your own Glass and see what the fuss is all about.

Google has stated that it selected the UK for its second market because “[the UK] has a history of embracing technology, design and fashion and … there’s a resurgence happening in technology in the UK”.  But perhaps it is also because the UK’s data protection regulator, the Information Commissioner’s Office (ICO), has a reputation for being one of the more pragmatic privacy regulators in Europe. Because, for all its exciting technological benefits, Glass raises some thorny legal issues, in particular in relation to privacy.  In this alert we will address some of those key issues.

WHAT IS GOOGLE GLASS?

As many readers will already be aware, Glass is a form of wearable technology that gives its users hands-free access to a variety of smartphone features by attaching a highly compact head-mounted display system to a pair of specially designed eyeglass frames. The display system connects to a smartphone via Bluetooth. Glass can run specialised Android apps known as “Glassware”. In its current form, Glass can pull information from the web, take photographs, record videos, make and receive phone calls (via the Bluetooth smartphone connection), send messages via email or SMS, notify its user about messages and upcoming events, and provide navigation directions via GPS.  Although Glass is still in the testing stage and boasts only a modest set of features, the prototype device has already caused quite a stir. In particular, it has some triggered significant privacy concerns.

PRIVACY

In terms of privacy, Glass throws up a variety of issues. Due to its functionality, Glass is likely to process two types of data relating to individuals: (i) personal data and meta data relating to the wearer of the Glass (“Glass User”) and (ii) personal data and meta data relating to any member of the general public who may be photographed or recorded by the Glass User (“Public”).  In June 2013, a group of regulators and the Article 29 Working Party, wrote to Google inviting Google to enter into a dialogue over the privacy issues relating to Glass. The letter pointed out that the authorities have long emphasised the importance of privacy by design, but added that most of the authorities had not been approached by Google to discuss privacy issues in detail. In Google’s response it stated that protecting the security and privacy of users was one of its top priorities. Google also identified various steps that it has taken to address privacy concerns, including a ban on facial-recognition Glassware.

PERSONAL DATA OF GLASS USER

As with any smartphone, Google will collect personal data and other meta-data relating to each Glass User. Google will need to comply with its obligations under the UK’s Data Protection Act 1998 (DPA). A key element of such compliance will be putting in place an appropriate privacy policy for Glass Users. However, to date, Google has encountered some difficulties in this regard.

Indeed, in July 2013, the ICO wrote to Google confirming that Google’s updated privacy policy raised serious questions about its compliance with the DPA. In particular, the ICO believed that the updated policy did not provide sufficient information to enable UK users of Google’s services to understand how their data will be used across all of the company’s products. It stated that Google must amend its privacy policy, and failure to take necessary action would leave the company open to the possibility of formal enforcement action.

Google has argued consistently that its privacy policy complies with EU data protection law. To date, no formal action has been taken by the UK, although Google has faced action elsewhere in Europe (e.g. in Spain).

Continue Reading

Drugs and the Internet: FDA Distributes New Draft Guidance Regarding Social Media Platforms and Prescription Drugs

Posted in FDA Regulations

Last week the Food and Drug Administration (FDA) promulgated two much-anticipated draft guidance documents on using social media to present information about prescription drugs and medical devices. The draft guidance documents, which were originally promised by the FDA in 2010, represent the FDA’s latest attempt to provide direction for drug and device manufacturers concerning how and when they may use social media.

BACKGROUND

Drug and device labeling and promotion are highly regulated activities, subject to onerous approval requirements enforced by the FDA under the Federal Food, Drug, and Cosmetic Act (the “Act”). Under the Act, “labeling” includes “all labels and other written, printed, or graphic matter” that “accompany” a drug or device. 21 U.S.C. § 321(m); 21 C.F.R. § 1.3(a). This definition has been broadly interpreted by the courts to include materials that supplement or explain a drug or device, even when there is no physical attachment to the drug. See Kordel v. United States, 335 U.S. 345, 350 (1948).

Rapidly growing Internet-based technologies have made it quicker and easier for both manufacturers and independent third parties to disseminate information about drugs and devices. This has led to a host of issues including (1) what drug companies can say online about their drugs without violating the “misbranding” regulations; and (2) what drug companies can do with what third parties have said online about their drugs. The guidance documents attempt to answer both of these questions.

The Twitter Guidance: “Internet/Social Media Platforms with Character Space Limitations – Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices”

The FDA’s position concerning manufacturers presenting “benefit information” for regulated drugs on electronic platforms with character space limitations is laid out in the Twitter Guidance. This Guidance instructs companies on the steps to take to avoid inadvertently “misbranding” a drug by providing information about a drug’s benefits without disclosing accompanying risks. With that in mind, the Twitter Guidance provides the following direction for drug companies seeking to use space-limited social media platforms:

  • Include the brand and established name, dosage form, and ingredient information;
  • Ensure that any benefit information provided is accurate;
  • Accompany benefit information with risk information;
  • Provide direct access to a more complete discussion of the risks associated with the drug or device. Notably, the Twitter Guidance says the link should lead to a page devoted “exclusively” to risk information; and
  • If both benefit and risk information cannot be communicated within the space limit, consider using a different platform.

To prove that it is not impossible to provide the required information within Twitter’s 140 character limit (just very difficult), the Twitter Guidance provides the following – entirely fictional – example of an acceptable tweet:

Notably, this example from the FDA might not prove helpful in reality, especially considering that many drugs would be required to list more than one risk.

The main take-away from the Twitter Guidance is nothing new: to avoid enforcement, provide “truthful, accurate, non-misleading, and balanced product promotion.” If a company cannot achieve this delicate balance within Twitter’s space limitations, it should “reconsider using that platform for the intended promotional message.”

Continue Reading

Supreme Court Stifles Aereo, but Tries to Keep the Cloud Away

Posted in Copyright, IP, Litigation, Supreme Court

In a closely watched case, the U.S. Supreme Court ruled today in a 6-3 decision that Aereo’s Internet streaming service engages in unauthorized public performances of broadcast television programs in violation of the Copyright Act, reversing the Second Circuit’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. (No. 13-461).

In ruling against Aereo, the Court sought to limit its decision to Aereo’s service—which the Court considered to be “equivalent” to that of a traditional cable company—and noted that it was not addressing the legality of cloud storage lockers, remote-storage DVRs and other emerging technologies.  But the Court’s interpretation of the public performance right in the context of Aereo’s technology will nevertheless influence future decisions on whether the transmission of content using other technology constitutes copyright infringement.

Background

Aereo provides broadcast television streaming and recording services to its subscribers, who can watch selected programing on various Internet-connected devices, including smart televisions, computers, mobile phones and tablets.  Aereo provides its service through individual, “dime-sized” antennas that pick up local television broadcast signals and transmit those signals to an Aereo server where individual copies of programs embedded in such signals are created and saved to the directories of those subscribers who want to view such programs.  A subscriber can then watch the selected program nearly live (subject to a brief time delay from the recording) or later from the recording.  No two users share the same antenna at the same time, nor do any users share access to the same stored copy of a program.

In 2012, various broadcasting companies sued Aereo for copyright infringement in the Southern District of New York, claiming, among other things, that Aereo’s transmission of the plaintiffs’ copyrighted content to Aereo’s subscribers violated the copyright owners’ exclusive right to publicly perform those works.  That public performance right, codified in the 1976 Copyright Act, includes (1) any performance at a place open to the public or any gathering with a substantial number of people outside the “normal circle of family and social acquaintances,” and (2) the transmission of a performance to the public, whether or not those members of the public receive it in the same location and at the same time.  This latter provision, commonly referred to as the “Transmit Clause,” was added to the Copyright Act by Congress in part to overturn earlier Supreme Court decisions that had allowed cable companies to retransmit broadcast television signals without compensating copyright owners.

The district court denied the broadcast companies’ preliminary injunction requests, finding that, based on Second Circuit precedent, Aereo’s transmissions were unlikely to constitute public performances.  The Second Circuit affirmed the decision, relying on that court’s earlier decision in Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”), which found that a cable company’s remote-storage DVR system did not run afoul of the public performance right because each transmission emanated from a unique copy of a program that was sent only to an individual user.  The Second Circuit held that Aereo does not engage in public performances because, as in Cablevision, Aereo’s system makes unique copies of every recording, and each transmission of a program to a customer is generated from that customer’s unique copy.   Continue Reading

Status Updates

Posted in Status Updates
  • In the top news story of the day, the U.S. Supreme Court ruled against Aereo in a closely watched copyright dispute with broadcasters; the Court found that Aereo engages in unauthorized public performances in violation of U.S. copyright law. Will cloud storage models survive this decision? What remains, if anything, of the Second Circuit’s landmark Cablevision ruling? Stay tuned for an upcoming blog post on this subject .
  • If 140 characters seems too long, an Israeli entrepreneur has launched Yo, a social network that simply permits users to communicate the word “Yo” to others. It is not a joke, and he has received investment offers from venture capitalists and hopes to launch soon.
  • Facebook says the use of video by its users has doubled in the past six months and that it will now deliver more video to people who have demonstrated interest in viewing that type of content and will downplay video for users who have not shown an interest in it.
  • A Utah family law attorney wants to use his personal YouTube channel to broadcast divorce court proceedings. Court administrators and judges, however, are skeptical and have questioned his motivations for wanting to do so.

Court Holds That DMCA Safe Harbor Does Not Extend to Infringement Prior to Designation of Agent

Posted in Copyright, DMCA, Litigation

The safe harbor provisions in § 512(c) of the Digital Millennium Copyright Act (DMCA) provide a mechanism that insulates online service providers from monetary damages for infringing materials posted or stored by their users.  To receive this protection, service providers must designate an agent to receive notice of claims of infringement with the Copyright Office and publicly post the agent’s contact information on the website.  A recent case in the Northern District of California, Oppenheimer v. Allvoices, Inc., examined whether service providers can avail themselves of the § 512(c) safe harbor for infringing acts that precede designation of such an agent.

Allvoices is an online service provider that maintains a community-driven platform for the exchange of ideas as well as graphical, written, and audio content.  Allvoices provides users with financial incentives to upload content to the site, and treats such users as “citizen journalists” and independent contractors.  While it began providing access to contributor content in 2008, Allvoices did not designate its DMCA agent until March 2011.

The plaintiff, David Oppenheimer, is a professional photographer whose photographs were posted on Allvoices’s website by contributors in January 2011.  Oppenheimer learned that his photographs had been posted on the Allvoices website in February 2011, prior to Allvoices’s DMCA agent designation.  Oppenheimer sent a cease and desist letter to Allvoices in August 2011, several months after Allvoices designated its DMCA agent.  While Allvoices eventually removed the photographs, Oppenheimer alleged that Allvoices failed to reply to his cease and desist letter and failed to terminate the accounts of repeat infringers, as required by the DMCA.

 Allvoices argued that it was entitled to the protection of the § 512(c) safe harbor for all alleged infringements, not just infringement occurring after it had designated its DMCA agent.  Allvoices did not cite any authority for this position, but maintained that, because the DMCA does not expressly carve out or preserve liability for pre-designation infringement, Congress had intended for the safe harbor to apply to such infringement.

The court rejected Allvoices’s argument and held that, under the plain language of the DMCA, an online service provider may invoke the § 512(c) safe harbor only if it has registered a DMCA agent with the Copyright Office.  According to the court, designation of an agent is a “predicate, express condition” for application of the safe harbors, so Allvoices could not avail itself of the safe harbors with respect to infringement that occurred prior to designation.  The court cited two previous Northern District of California cases that came to similar conclusions, Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. and Nat’l Photo Group, LLC v. Allvoices, Inc. (note that Allvoices was also a defendant in the latter case).  On the merits, the court held that Oppenheimer sufficiently alleged claims of direct, contributory, and vicarious infringement to overcome Allvoices’s motion to dismiss those claims.

A question remains regarding the period of time during which Allvoices may be liable for infringement of Oppenheimer’s photographs.  Specifically, the court did not address whether Allvoices’s potential liability is limited to the period during which the photographs were posted on Allvoices’s website prior to the date that Allvoices designated its DMCA agent with the Copyright Office.  Regardless, the message is clear: online service providers should designate a DMCA agent with the Copyright Office as early as possible in order to obtain the protection of the applicable DMCA safe harbors.

Status Updates

Posted in Status Updates
  • Debt collectors are using social media more and more frequently to try to track down people who owe money, but they are bound by restrictions in the Fair Debt Collection Practices Act when they do so, just as if they used traditional means.
  • The controversial “right to be forgotten” recently received another boost when a Canadian court required Google to remove specific search results worldwide. Under an interim injunction issued by the Supreme Court of British Columbia, Google must cease indexing or referencing in its search results certain websites related to a protracted intellectual property dispute between two corporations. Google has announced that it will appeal the ruling.
  • The American Bar Association has voted to take the view that attorneys are allowed to scour the publicly available social-media postings of jurors, but they are ethically not permitted to friend jurors.
  • In other “legal ethics meet social media” news, the New York State Bar Association has determined that tweets directed to potential clients in shareholder lawsuits constitute “advertisements” that, while not prohibited, must be labeled as “attorney advertising” and retained for at least one year. Further, such tweets constitute “solicitations” and are subject to certain filing requirements if directed to New Yorkers.

Status Updates

Posted in Status Updates

Status Updates

Posted in Status Updates
  • Are threats made on social media protected free speech, or potentially criminal acts? The U.S. Supreme Court has agreed to examine the constitutionality of a federal law making it a crime to transmit communications containing “any threat to injure the person of another.” In this case, the “threats” were in a series of Facebook postings.
  • The U.S. Department of Transportation wants to formally clarify that it has the authority to regulate navigation aids of all sorts in automobiles, including apps in smartphones. It’s interested in preventing distracted driving in additional situations besides cellphone conversations.
  • Social-media participation by people participating in double-blind drug trials has the potential to “unblind” the trials and make them less useful because participants are sharing their experiences in online forums in violation of instructions not to do so. This problem has no obvious solution.