Behind the Scenes | Volume 3, Issue 1
Beastie Boys: (You Gotta) Fight for Your Right (To Fair Use!)
The Beastie Boys don’t play games when it comes to copyright infringement. The legendary hip hop band is waging an aggressive legal battle against a company called GoldieBlox that makes engineering toys for girls over what the band claims is copyright and trademark infringement related to its 1987 hit song “Girls.”
December 16, 2013
CFPB Reviewing Credit Card Rewards Programs
The Consumer Financial Protection Bureau (CFPB) recently announced that it is reviewing credit card rewards programs. Director Cordray has raised concerns that the rewards programs often involve “detailed and confusing” terms that consumers do not always fully understand. Therefore, the CFPB will be reviewing to determine if necessary disclosures are being made in a “clear and transparent” manner. Rewards programs are but one of the items listed in the CFPB’s Credit CARD Act report as a practice that poses a risk to consumers and one that may require additional scrutiny. The scope of the examination currently includes (a) the time required to redeem rewards, (b) the clarity of the terms and disclosures, (c) increased spending requirements for obtaining rewards, and (d) forfeiture and reinstatement of rewards. The outcome of the investigation may result in several enforcement actions against large name companies if the CFPB determines that rewards programs have been run in a deceptive manner. For more details, click here.
Deceptive Text Spammers Settle FTC Charges
Several affiliate marketers have agreed to settle charges brought by the Federal Trade Commission (FTC) over their practice of sending deceptive spam text messages to consumers and directing such consumers to deceptive websites. Specifically, according to the FTC’s complaint, the companies sent numerous spam text messages that offered consumers items such as free iPhones and gift cards for clicking on a link. However, those who clicked on the link were directed to websites that collected personal information and required the consumers to sign up for paid offers and subscriptions. Under the terms of the settlement, and among other things, the defendants are banned from sending unauthorized spam text messages, from advertising deceptive “free” offers, and from misleading consumers about the use of personal information. The defendants must also pay a monetary judgment of over $350,000. For more details, click here.
BBB Decision Highlights Need for Communication with Affiliates and Ad Servers
In a recent decision by the Council of Better Business Bureaus’ Online Internet-Based Advertising Accountability Program (BBB), the BBB noted that a recent campaign by a genetic testing company failed to comply with the industry’s transparency requirements. Specifically, ads served by a genetic testing company, 23andMe, targeted consumers who had previously visited the company’s website, but failed to display the AdChoices icon so that consumers could learn about targeted advertising and opt out. The advertising campaign was managed by 3Q Digital and the ads were served using the MediaMath platform. When contacted, all three companies indicated that each thought one of the others would arrange for the icon to be served. If nothing else, this recent decision highlights the need to monitor advertising and to provide clear guidance to service providers and ad agencies. For more details, click here.
Making a List and Checking it Twice: FTC Sends Warning to Online Retailers
Santa’s not the only one who is making a list this holiday season: the FTC is keeping a close watch on online retailers and is warning that misbehaving retailers will be getting lumps of coal in the form of FTC enforcement actions. The holiday dust-up stems from a series of letters that the FTC recently sent out to Internet retailers reminding them of their obligation to ensure that consumers have access to product warranty information before they make their purchases.
December 13, 2013
Data Security & Privacy
Never Mind the NSA, Privacy Groups Set Sights on Big Retail
With the proliferation of smart phones and other mobile devices, it has never been easier for brands and marketers to collect data about the habits and desires of their customers. But, as a group of major national retail stores recently discovered, the proliferation of data has also led to a renewed sensitivity to consumer privacy.
January 2, 2014
FTC Approves COPPA Consent Method
The FTC recently approved a verifiable consent method submitted by Imperium for compliance with the Children’s Online Privacy Protection Act (COPPA) Rule. Under the COPPA Rule, covered websites must obtain verifiable parental consent before collecting a child’s personal information. As a means of streamlining the consent process, Imperium submitted a knowledge-based identification method. Under Imperium’s method, parents are asked questions that they must verify—similar to the questions often asked on online banking websites. The FTC noted in the approval that Imperium must ensure that the questions are multiple-choice and difficult enough to ensure that the parent is likely the one providing the answer instead of a child taking guesses. Imperium’s new method likely provides a welcome alternative to website operators struggling to comply with the revised COPPA Rule. For more details, click here .
Google Wins Privacy Lawsuit, May Continue to Comingle
Android App Developer Settles FTC Privacy Charges
The FTC recently settled with Goldenshores Technologies LLC, a company that created an application for Android mobile devices that allowed the phone to act as a flashlight. The FTC alleged that the company collected geolocation information and shared that information with advertising networks and other third parties without proper notice and consent. According to the complaint, the app collected and shared precise geolocation information automatically, regardless of a consumers’ choice regarding sharing. Notably, the geolocation information was collected and shared even before the option was presented to consumers. Under the terms of the settlement, the defendants are banned from misleading consumers regarding how information is collected and the control that consumers have over the use of their data. The defendants are also required to provide just-in-time disclosures that notify consumers of when, how, and why geolocation information is collected, used and shared. Consumers must then provide affirmative express consent before the information can be accessed. This requirement provides a signal to the FTC’s preferred method of consent in mobile interactions. For more details, click here .
Fashion & Entertainment
Posthumous Celebrity Images and Right of Publicity Issues
Earlier this fall, the late Julia Child's charitable foundation sued retailer Williams Sonoma for allegedly capitalizing on her image by using her name in a marketing campaign. Companies that seek to utilize an iconic deceased celebrity's image for marketing purposes should be aware of possible legal restrictions. Right of publicity laws often extend to the celebrity's estate and heirs who have control over how a celebrity’s image, voice or name is used posthumously.
December 13, 2013
NFL and MLB Urge Supreme Court to Declare Aereo’s Live Broadcast Transmission Service Illegal Under the Copyright Act
On October 11, a group of networks including Fox Television Stations, Inc., Univision Television Group, and American Broadcasting Companies, Inc. (the Networks) petitioned the Supreme Court to reverse an unfavorable decision by the Second Circuit Court of Appeals in its ongoing dispute with Aereo, Inc. (Aereo). Specifically, the appellate court affirmed the denial of the Networks’ request for a preliminary injunction barring Aereo’s wireless broadcasting service as a violation of the public performance right under the Copyright Act. In a significant development, the National Football League (NFL) and Major League Baseball (MLB) recently collaborated to file an amicus brief urging the Supreme Court to hear the case, claiming that “[t]he Court’s intervention is now necessary to restore clarity and certainty in this area and to prevent the unraveling of a marketplace built upon the licensing of rights rather than the expropriation of such rights through technological chicanery.”
FTC Focuses on Consumer's Waist Lines
The Federal Trade Commission will hold a press conference on Tuesday, January 7, 2014, at 11:00 a.m. ET, to announce an initiative against deceptive advertising of weight-loss products.