90931637_SMALLThe First Circuit Court of Appeals’ recent decision in Yershov v. Gannett Satellite Information Network, Inc. may carry important implications for mobile app providers seeking to navigate federal privacy laws—in particular, the Video Privacy Protection Act of 1988 (“VPPA”). Although Yershov is not the first case to consider how the VPPA applies to mobile apps, the opinion contains two key holdings regarding (1) the scope of protectable personally identifiable information and (2) the treatment of free app downloaders under the statute.

The VPPA

The VPPA was passed in 1988, after the video rental history of then-Supreme Court nominee Judge Robert Bork was disclosed in a newspaper article during debate over his nomination. Quoting the VPPA, the Yershov opinion explains that the statute is intended to preserve personal privacy in connection with the rental, purchase or delivery of video and audio materials and creates a “civil remedy against a ‘videotape service provider’ for ‘knowingly disclos[ing], to any person, [personally identifiable information] concerning any consumer of such provider.’” Of relevance in Yershov, the statute defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a videotape service provider.” The VPPA defines personally identifiable information to “include[] information which identifies a person as having requested or obtained specific video materials or services from a videotape service provider.”

Case Background

According to the allegations in Yershov’s operative complaint, which were taken as true for purposes of the First Circuit’s opinion, Yershov downloaded the free USA Today mobile app (“the app”) on his Android mobile device in late 2013. The app is offered by Gannett via the Google Play Store and allows the user to access various USA Today media and content, including videos, on the user’s mobile device.

Yershov claims that he watched numerous video clips on the app. Each time, Yershov’s operative complaint states, Gannett and its third-party marketing and analytics vendor collected three pieces of data: (1) the title of the video Yershov viewed; (2) the GPS coordinates of the device Yershov used; and (3) Yershov’s unique Android ID. According to Yershov, the vendor used this information to create “digital dossiers” for Yershov and similarly situated users, which Gannett in turn used to provide targeted advertising. Yershov says he never consented to the collection of this data. He filed a putative class action lawsuit as a result, claiming that Gannett’s actions violated the VPPA.

Gannett successfully moved to dismiss Yershov’s VPPA claim. The district court held that the information Gannett collected and disclosed to its vendor constituted personally identifiable information, but nevertheless concluded that Yershov was not a “consumer” with a right of action under the VPPA because he failed to allege that he was a renter, purchaser or subscriber of Gannett’s video content. Yershov appealed.

First Circuit Revives Yershov’s Claim

The First Circuit reversed the district court’s dismissal order and remanded for further proceedings.

First, the panel agreed with the district court that the information conveyed to the vendor by Gannett constituted personally identifiable information under the VPPA. According to the panel, the VPPA’s “abstract formulation” of personally identifiable information does not require the information at issue to “explicitly name[] a person” to come within the ambit of the statute. Rather, it is sufficient if the information “effectively reveal[s] the name,” or identity “of the video viewer” without too much uncertainty or “yet-to-be-done, or unforeseeable detective work.”

Because Yershov alleged that Gannett’s vendor could connect the GPS coordinates and Android ID with a given person’s “name, address, phone number, and more,” the panel concluded that he sufficiently alleged a “firm and readily foreseeable” link between the data collected and the user’s identity.

Second, the panel addressed the “closer question” of whether Yershov is a “subscriber” and, therefore, a consumer under the VPPA. Lacking a clear statutory definition, the panel evaluated various dictionary definitions of “subscribe,” which “include as an element a payment of some type and/or presume more than a one-shot transaction.”

The panel expressly rejected the notion that the term “subscriber” incorporated a monetary payment requirement. Requiring monetary payment as an element, the panel reasoned, would render “subscriber” superfluous since the statute also lists “purchaser” and “renter” under its definition of “consumer” and those terms necessarily imply the payment of some monetary amount. According to the panel, “Congress would have had no need to include a third category of persons [i.e., subscribers] protected under the Act if it had intended that only persons who pay money for videos be protected.”

The panel also found it significant that, in 2012, Congress considered the impact of the VPPA on video content in the age of the Internet and left the definition of “consumer” untouched—an indication, according to the panel, that “Congress understood its originally-provided definition to provide at least as much protection in the digital age as it provided in 1988.”

In the end, the panel concluded that qualifying as a “subscriber” requires some kind of relationship between the individual and the video provider that gives the individual some form of special access to the video content. As the panel stated:

[B]y installing the App on his phone, thereby establishing seamless access to an electronic version of USA Today, Yershov established a relationship with Gannett that is materially different from what would have been the case had USA Today simply remained one of millions of sites on the web that Yershov might have accessed through a web browser.

Looking Ahead

The Yershov decision is not without its critics. Its holdings conflict with the opinions of other courts that have considered similar issues.

For example, federal district courts including the Northern District of California and the District of New Jersey have concluded that a unique, numerical device identifier is not personally identifiable information under the statute. Yershov does not address these contrary decisions.

Further, in the 2015 case Ellis v. Cartoon Network, Inc., the Eleventh Circuit adopted a narrower reading of “subscriber,” requiring more of a “commitment” than that which arises from downloading a free app. Yershov distinguished the process associated with downloading and installing the apps in the Ellis case, but the Yershov and Ellis courts’ diverging conclusions could indicate a more fundamental disagreement aboutwhat it means to download and use free software.

Yershov shows the continuing split among courts interpreting the scope of the VPPA. As a result, B2C website operators and mobile app developers that deal with video and audio materials will want to continue to monitor VPPA case law developments, and to seek to identify and address associated legal risks.

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For other Socially Aware blog posts on the Video Privacy Protection Act, please see Court Nixes VPPA Claim and If You Host Videos on Your Website, Read This Blog Post Regarding the Video Privacy Protection Act.

 

Facebook Messenger joins the elite “one billion monthly users” club just four years after its release as a standalone app.

A Canadian judge ordered a couple convicted of child neglect to post to all their social media accounts his decision describing their crime.

Leslie Jones of Ghostbusters highlights Twitter’s trolling problem. One tech columnist says the platform needs to rethink its application programming interface strategy to enable users and communities to insulate themselves from abuse.

Don’t drive and Facebook Live.

Google erased Dennis Cooper’s 14-year-old blog without warning or explanation. We recently examined the outcome of lawsuits challenging a platform’s right to remove user content (spoiler alert: the platforms usually win).

Twitter now lets anyone apply to get verified.

Researchers say there’s a correlation between an increase in the psychological stress that teens suffer and the amount of time they’re spending on social media.

A Playboy model who “fat-shamed” a woman by photographing her and posting it to Snapchat risks prosecution.

Forensic psychologists explain why people post evidence of their crimes to social media.

We may soon have a federal law making revenge porn illegal. Our blog post from 2014 took a look at some of the legal issues raised by revenge porn.

There’s now a dating app that sets people up on Pokémon Go dates. Want to know more about the most popular mobile game of all time? Read our Pokémon Go Business and Legal Primer.

illustrationWe have become inured to the sight of people staring at their phones rather than engaging with one another or enjoying their real-life surroundings. But, over the past two weeks, enslavement to mobile devices rose to new levels, with smartphones and tablets actually propelling users’ movements in the real world as opposed to merely distracting them from it.

Unless you’ve been off the grid this month, you know that the force mobilizing these seemingly possessed pedestrians (and drivers!) has been Pokémon Go, an app that has been downloaded more than 15 million times. Pokémon Go is currently boasting more daily users than Twitter despite having been launched on July 6, 2016, making it the most popular mobile game of all time.

Despite all this, if you happen to be, umm, over a certain age (i.e., you’re not a Millennial or younger), you may be a bit mystified as to what this Pokémon Go thing is all about. Accordingly, we put together this primer on Pokémon Go, including some observations regarding potential legal issues raised by the app.

How the Game Works

Pokémon Go is an augmented reality game that uses the device’s ability to track time and location and shows the user a map of his or her real-life surroundings. As the player moves around, the game superimposes animated Pokémon characters onto the screen over a view of the player’s real-life surroundings as seen through his or her mobile device’s camera. The more characters the player catches, the higher his or her ranking rises.

The game is free to download from online app stores, but, as players progress, they need Pokémon coins to enable certain functions. While the game allows players to earn coins over time, the fastest way to acquire them is by purchasing them. Such in-app purchases are real money makers, expected to account for more than $50 billion in industry-wide revenue this year.

Who’s Behind It

The funds that players are plunking into Pokémon Go are likely to add up to real money for the companies behind the app, a joint project of The Pokémon Company, which is 32%-owned by Nintendo, and Niantic Inc., a spinout from Alphabet Inc.

Since the app’s recent release, shares in Nintendo—a company that has struggled in recent years as a result of its reluctance to embrace mobile games—have risen 56%. The game has also significantly strengthened the financial position of Unity Technologies, the company that owns the game engine software that provides basic functionality for Pokémon Go (and for approximately 31% of the 1,000 top-grossing mobile games).

Perks and Pitfalls (some, unfortunately, literal)

Pokémon Go is being hailed as boon for small businesses; to drive foot traffic, merchants are paying the app a $10 daily fee for items called lures, which attract users. It’s also being lauded for incentivizing some players to exercise and for relieving users’ depression and social anxiety. Of course, the app is also creating problems and drawing its share of controversy.

Safety concerns have arisen as players who won’t look away from their mobile devices have run-ins with their real-life physical surroundings, cutting and bruising themselves, getting into driving accidents, and even falling off cliffs. These incidents have prompted a police department in Texas to post to social media a list of safety reminders for Pokémon Go users.

The list advises players to “tell people where you’re going if it is somewhere you’ve never been”—wise advice in light of police reports describing Missouri armed robbers’ use of the game’s geolocation feature “to anticipate the location and level of seclusion of unwitting victims.”

And, while some columnists have deemed the game educational because many of its so-called PokéStops (places where players can get free in-game items) are famous landmarks and historical markers that allow “players to learn about their community and its history,” some of those PokéStops, such as the Holocaust Museum, have objected, maintaining that playing the game on their property is inappropriate. They are frustrated by the fact that they have no control over their PokéStop designation.

Legal Issues

Despite the app being so new, it is already raising legal concerns. Some of the key concerns include the following:

Privacy

The Pokémon Go app has been dogged by privacy concerns. When it was first launched, the Pokémon Go app requested permission to access all of the data associated with the player’s Google accounts (including emails, calendar entries, photos and stored documents). The app’s first update, available since at least July 12, 2016, remedied that problem and now asks people downloading it for permission to access only their Google IDs and email addresses.

The more limited-information-access permission terms—which downloaders of the original version of Pokémon Go can only adopt by downloading the update, signing out and signing back in—haven’t stopped U.S. Senator Al Franken from penning a letter to Niantic’s CEO John Hanke requesting Niantic to answer a series of questions to “ensure that Americans’—especially children’s—very sensitive information is protected.”

Product Liability

And what about the aforementioned injuries that people have sustained while playing Pokémon Go? Can Pokémon Go’s developers be held liable for such injuries? At least one car accident victim is suing another popular social media app, Snapchat, for the traumatic brain injuries he suffered when he was struck by a car driven by a Georgia woman allegedly trying to use the Snapchat speed filter—a feature that tracks how fast the app’s user is moving and rewards points to users who submit photos of their speed.

Trespass

There’s also the question of property rights. In some cases, owners of the physical real estate sites that have been designated as PokéStops have complained about the traffic and other nuisances caused by the players. As a result, Niantic is accepting requests for removal of PokéStops from property owners, but removal isn’t guaranteed.

Of course, app users who enter upon another’s land without permission may be subject to trespassing claims. But could the companies behind the game also be liable for trespass? As The Guardian points out, “A Pokéstop cannot be ‘on private property.’ A PokéStop does not exist: it is a latitude and longitude stored on Niantic’s servers, interpreted by the Pokémon Go client which then represents it as a circle hovering over a stylized Google Map of the area surrounding the player.”

It is possible to recover in trespass for an intangible invasion of property, but whether a real estate owner’s exclusive rights to his or her property extends to cyberspace remains to be seen.

Steps Taken to Mitigate Legal Risks

Pokémon Go’s owners have taken steps to limit their potential legal liability. For example, a warning screen on the app advises users to pay attention to their real-world surroundings. And Pokémon Go’s detailed, robust Terms of Service attempt to limit the potential liability of the companies behind the app. In addition to a $1,000 liability cap and a mandatory arbitration provision, the Terms of Service contain an entire “Safe Play” section, which states in part that, as a player, you “agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services. You also agree not to use the App to violate any applicable law, rule, or regulation (including but not limited to the laws of trespass).”

Pokémon Go’s Terms of Service, however, don’t do anything to limit the liability of the game’s players. As noted above, users could be liable for trespass and for any harm that others suffer as a result of players’ use of the app (especially careless use, such as playing while behind the wheel of a car).

The Upshot

Any innovative technology that becomes a worldwide phenomenon overnight is bound to raise legal concerns. But, as we’ve noted here at Socially Aware, such concerns often turn out to be overblown. The real significance of Pokémon Go is ultimately a business, rather than a legal, story: thanks to the app, millions of consumers around the world have now embraced augmented reality technology. Lawsuits will inevitably follow in the wake of Pokémon Go’s success but, more importantly, so will millions of dollars of investment in new augmented reality applications. As a result, in what could be a very short amount of time, the integration of augmented reality into nearly every facet of our everyday life will become, well, a reality.

[Authors’ Note: We would like to thank Luke D. (age 13), Ben R. (age 12), Alfredo M. (age 10) and Dylan J. (age 9) for the invaluable research that they contributed to this blog post.]

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For more of the Socially Aware editors’ observations on tech innovations, please see the following: Will Ad Blockers Kill Online Publishing?; Building a Successful Social Media App: Four Lessons Learned From Snapchat; and Narrow Vision: Did Anti-Glass Hysteria Contribute to the Demise of Google Glass?

 

75090977_thumbnailIf you make available a service through a free app, and you subsequently decide to migrate users of that app to a paid subscription model, that shouldn’t create any problems, right?

Well, app developer LogMeIn did just that, and became the target of a class action lawsuit filed in the Eastern District of California. Although the claims against LogMeIn were recently dismissed, the case, Handy v. LogMeIn, Inc., highlights the potential legal risks in seeking to transition app customers from a “no charge” (or a “one-time only charge”) business model to another business model, especially where the new business model will require those customers to pay ongoing subscriptions fees.

LogMeIn’s Products

LogMeIn made available a free app, LogMeIn Free, which allowed users to use a laptop or desktop computer to access remotely a separate desktop computer. The company also offered, for $29.99, a second app, Ignition, which provided the same remote access but from a tablet or smartphone.

In 2014, LogMeIn notified its customers that it would no longer offer LogMeIn Free, and that it was planning to migrate all users of that app and the Ignition app to a paid subscription service, which offered a few extra features. The plaintiff—a user of LogMeIn Free and a purchaser of Ignition—brought suit under California’s False Advertising Law (FAL) and Unfair Competition Law (UCL), alleging that the company had failed to properly notify users that it would discontinue these products and that, had he known LogMeIn would do so, he would not have purchased Ignition.

LogMeIn filed a motion to dismiss the plaintiff’s claims and a motion for summary judgment. Because the court considered evidence outside the pleadings, it applied summary judgment standards and ruled in favor of LogMeIn.

Failure to Identify Any Affirmative Misrepresentation

 The plaintiff claimed the following: (1) LogMeIn had misled consumers to believe that LogMeIn Free and Ignition apps were both being discontinued and that, in order to continue to receive the services provided through these apps, users had to pay for an annual subscription; and (2) LogMeIn had led users to believe that the free app and the paid subscription were “companion services” and, as such, had failed to inform users that the discontinuation of the free app would make the subscription app less valuable. The court rejected both theories.

First, the court held that LogMeIn had not misrepresented its intention to discontinue its free app and the Ignition product. LogMeIn explained its migration plan and offered consumers a six-month free subscription to the new subscription-based service. It further explained that, regardless of whether users accepted the complementary subscription, they could continue to use Ignition until it was discontinued. This is exactly what the plaintiff did: he continued to use the Ignition product throughout 2014 and 2015. Because the plaintiff was not “tricked” by LogMeIn’s statement and did not buy the new subscription-based product because of any alleged misrepresentation, he could not base a claim on LogMeIn’s statement of its migration plan. The court noted:

While [the plaintiff] may be outraged by what he feels occurred to others, the Court is not clear why he believed that this outrage makes him aggrieved such that he can vindicate this grievance in this litigation.

Second, the court held that the plaintiff failed to show that the free app and Ignition were “companion services” such that Ignition was less valuable without the free app. It noted that the plaintiff used the free app for more than a year before buying Ignition and then used Ignition for more than a year after the free app had been discontinued. The products, therefore, were not dependent on one another.

Further, the court noted that, prior to receiving access to the LogMeIn Free app, the plaintiff and other customers had been required to “click accept” the terms and conditions governing use of that app and the Ignition app, and, in such terms and conditions, LogMeIn had made clear that it reserved “the right to modify or discontinue” either LogMeIn Free or Ignition “for any reason or no reason,” thereby undercutting the plaintiff’s position that use of one was dependent on the other.

Observations

App developers (and other companies, for that matter) should take note that, even though LogMeIn ultimately prevailed, migrating users off of a free app or a “one-time only charge” app to a paid subscription model can spark unwanted and costly litigation, no matter how baseless that litigation might be; accordingly, app developer will want to proceed with caution and ideally consult experienced counsel before undertaking such an initiative.

That being said, the Handy decision highlights some of the challenges that a plaintiff will have in pursuing any such litigation. As the Handy plaintiff learned, fraud-based claims under the FAL and UCL are subject to heightened pleading requirements. Moreover, plaintiffs must allege reliance on specific statements and injury in fact as a result. Further, courts are increasingly dismissing claims that fail to allege such individualized reliance and injury.

Finally, Handy shows how a carefully drafted set of terms and conditions governing app usage can help to bolster an app developer’s defenses to FAL, UCL and other claims arising out of a shift to a new business model. Such terms and conditions of use ideally should provide notice to users that the app (including any associated services) may be modified or discontinued, and that the app developer reserves the right to charge fees or to increase fees in connection with the app. Moreover, as in Handy, app developers can further strengthen the impact in litigation of an app’s terms and conditions of use by requiring customers to affirmative consent to such terms and conditions.

 

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For other Socially Aware blog posts on legal issues relating to mobile apps, please see the following:

Mobile App Legal Terms & Conditions: Six Key Considerations

 New California Privacy Law Revisions Will Impact Website and Mobile App Operators With Users Under Age 18

California Court of Appeal Rules That State Attorney General’s Privacy Suit Over Fly Delta Mobile App Is Preempted

For in-depth coverage of class action law developments, please check out our sister blog, Class Dismissed.

Lots of press surrounding Microsoft’s purchase of LinkedIn: Will LinkedIn change as a result? Will the Microsoft purchase inspire a Twitter acquisition?

“Spam King” gets 30 months in jail for sending 27 million messages.

One columnist says you should stop measuring your social media marketing reach.

Twitter is now allowing brands to target ads to people based on their use of sentiment, food and passion emojis.

Entertainment streaming companies are tapping social media to learn what resonates with viewers.

Brands can now create their own ads on YouTube on the cheap using a smartphone.

Here’s an infographic illustrating how lawyers are using social media to market themselves.

Some insight into why influencer marketing works and best practices for teaming up with influencers online.

This article describes what kinds of brands are joining Snapchat, and what types of content they’re posting to the platform.

Snapchat aims to become a huge player in digital ads. Here’s how.

10-14-2015 3-48-13 PMThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we highlight five key social media law issues to address with your corporate clients; we discuss when social media posts are discoverable in litigation; we identify six important considerations in drafting legal terms for mobile apps; we take a look at the clash between bankruptcy law and privacy law in RadioShack’s Chapter 11 proceedings; we examine a recent federal district court decision finding “browsewrap” terms of use to be of benefit to a website operator even if not a binding contract; we outline best practices for employers’ use of social media to screen and interact with employees and conduct workplace investigations; we explore a Washington state court’s refusal to unmask an anonymous online reviewer; and we discuss Facebook’s recent update of its “Notes” feature.

All this—plus an infographic illustrating the growing popularity of video on social media.

Read our newsletter.

 

 

MobilePhone_56311774_thumbnailFor corporations, the mobile app is today’s website.

Back in the late 1990s, no self-respecting company, no matter how stodgy and old-fashioned, wanted to be without a website.

Today, the same is true with mobile apps. It doesn’t matter what industry a company is in—it needs to have an app that customers and potential customers can download to their smartphones. Even big, tradition-bound law firms are developing and distributing mobile apps, for crying out loud.

Here at Socially Aware, we have been known to spend our free time downloading and examining mobile apps owned by companies that are new to the software distribution business (after all, a mobile app is just that — distributed software). In doing so, we’ve noticed a number of common missteps by app distributors in connection with the legal terms—or End User License Agreements (EULAs)—governing such apps. Accordingly, here is our list of key issues to address in adopting a EULA for a mobile app.

1.  Adopt Your Own EULA. A EULA is an important part of any company’s strategy to mitigate risks and protect its intellectual property in connection with its mobile apps. Hardly any company would release desktop software without a EULA, and mobile apps—which, as noted above, are software products—warrant the same protection. While a number of other app providers such as Google provide a “default” EULA to govern mobile apps downloaded from their respective app stores, they also permit developers to adopt their own custom EULAs instead—subject to a few caveats, as mentioned in our fifth item below. Because the default EULAs can be quite limited, and can’t possibly address the unique issues that any particular app is likely to raise, a company should ideally adopt its own EULA to best protect its interests in its apps.

2.  Is Your EULA Binding? The best EULA is a binding EULA. U.S. courts have consistently made clear that a “clickwrap”-style agreement has the best chance of being enforceable; although whether an agreement is enforceable in any particular case may depend on how the agreement is actually presented to users, and how users indicate their assent. Having adopted customized EULAs, companies have several opportunities to present their EULAs to users. In most app stores, for example, a dedicated link called “License Agreement” lets companies link to their EULAs. In addition, companies should ideally include language in their apps’ “Description” field making clear to users that, by downloading and using the app, they are accepting the EULA. But it’s still possible in most app stores for users to purchase and download an app without seeing the EULA; accordingly, for apps that may present significant risk issues—such as banking or e-commerce apps—the most conservative approach is to require an affirmative “click-accept” of the EULA when the app is first opened by a user on his or her device.

3.  Which Parties Will Your EULA Bind? If an app is targeted toward businesses, or toward individuals who will use the app in their business capacities, then the EULA should ideally bind both the individual who uses the app and the individual’s employer. Similarly, if minors will be permitted to use the app, then the EULA should require that a parent or guardian consent on the minor’s behalf. (Of course, if minors under 13 will be allowed to use the app, or if the app will be directed toward such minors, you will need to address Children’s Online Privacy Protection Act issues in connection with the app.)

4.  Where Will Your EULA Reside? As a technical matter, a EULA can reside in one of two places: it can be “hard-coded” into the app itself, so that the EULA is downloaded together with the app, or it can reside on a separate web server maintained by the developer. The former approach ensures that the EULA is always accessible to the user, even if the user’s device is offline. Some users may decide not to download the latest updates, however, and, as a result, those users may not be bound by the updated terms. In contrast, under the latter approach, companies can update their EULAs at any time by simply updating the document on their own web servers, although the EULAs won’t available to the user offline. Companies should think about which approach works best for their specific apps and their associated risk issues.

5.  Does Your EULA Incorporate Terms Required by Third Parties? Some app stores, such as the Apple App Store, understandably require that, if a company adopts a custom EULA for its app, such customized EULA must include terms protecting the applicable app store owner. (Other app stores may place such protective terms in their own user-facing agreements, and require developers to acknowledge that such protective terms will govern.) Other third-party terms may also apply, depending on any third-party functionalities or open-source code incorporated into the app. For example, if a company integrates Google Maps into its app, Google requires the integrating company to pass certain terms on to its end users. The licensors of any open-source code used by an app may also require the company to include certain disclaimers, attributions, usage restrictions or other terms in the EULA.

6. Is your EULA clearly written and reasonable? Traditionally, EULAs have been overlong, filled with impenetrable legal jargon and, frankly, hard to read, sometimes even for lawyers. An emerging best practice, especially for B2C apps, is to draft app EULAs that are understandable to consumers, and to minimize unnecessary legalisms such as “null and void,” “including without limitation” and the reflexive prefacing of sentences with “we hereby reserve the right” or “you hereby acknowledge and agree.” Moreover, because space on a mobile device screen can be limited, thought should be given to eliminating repetition in app EULAs wherever possible. Of course, even if a EULA is written in plain English, extremely one-sided provisions—such as a disclaimer of direct damages (rather than a cap on such damages)—may raise concerns with a court in any subsequent litigation involving the EULA. At the same time, the EULA is ultimately a legal document, and an app developer will want to make sure that any slimmed-down or simplified EULA still provides adequate protection for the developer.

Pin pain. As a primarily visual social media platform whose self-described purpose is to help users bookmark and save “good stuff you find anywhere around the web,” Pinterest has raised copyright infringement questions since it became explosively popular in 2012. In many cases, copyright owners are happy to have their images “pinned” on the site, particularly where the copyright owner posted the image for advertising purposes in the first place. Pinned images appear in the Pinterest feeds of the pinner’s followers, and can drive traffic to the copyright owners’ own websites. But it doesn’t always work that way, says Christopher Boffoli, a fine art photographer who is suing Pinterest. “Much of my work is pinned to Pinterest without attribution, which throws out the window the common trope about this kind of use gaining me ‘exposure’,” says Boffoli, whose images have been pinned more than 5,000 times. Boffoli further argues that, contrary to the platform’s promise to “respond expeditiously to claims of copyright infringement,” the site is still riddled with his copyrighted images. The photography blog PetaPixel reports that a trial date for Boffoli’s suit is set for early 2016.

Connecting the data deprived. A new messaging app called Jott is targeting text-message-loving teenagers who have iOS or Android mobile devices, but no data plans. And, judging by the app’s success—Jott is attracting up to 20,000 new users a day—the ranks of the data deprived are legion. Launched in March and already boasting half a million users, Jott allows users who have the app installed on their devices to text each other within 100 feet. Jott’s founder, Jared Allgood, started testing the app at a few schools and it took off, serving as an oasis for tech-deprived students in some of the many U.S. public schools that are practically mobile data deserts. The app eliminates the need for cell towers and Wi-Fi routers by turning users’ individual devices into “de facto cell towers,” Forbes explains, using a technology called mesh networking. Jott isn’t the first messaging app to circumvent the need for an Internet connection or data plan—FireChat, for example, does that too and has been used at events like Burning Man. But Jott is unique in that it allows users to send direct messages to individuals rather than to whole groups.

Only a social smoker? Here’s some news for those naysayers who are convinced that no good can come of society’s obsession with social media: According to a study from the University of Waterloo, 32% of the 19- to 29-year-old Canadian smokers polled were able to stop lighting up for 30 days after three months of using an app or online tool meant to help them kick the habit. Experts predicted the potential helpfulness of these smoking-cessation apps, whose features are varied. Some of the apps appeal to a smoker’s competitive side by pitting the user against fellow smokers who are also trying to quit, while others send signals to the smoker’s friends who can then intervene when the smoker approaches a potential trigger. Success, the experts say, may depend on finding an app that’s a good fit, so hopefuls should try several. The websites of both niche publications and mainstream media periodicals list and review several of the best. And, in other news, The Onion reports that smoking is fine as long as you only do it when you drink.