The FCC proposal to deregulate cable and satellite television set-top boxes is facing heavy headwinds as powerful interests line up in opposition. The current proposal is itself a compromise to its original proposal to require providers to give access to their information streams to other set-top box makers. In response to powerful opposition, the proposal was modified to require content to be delivered through apps instead, which the FCC says will give providers end-to-end control over their content. The change does not, however, seem to have mollified the proposal’s opponents.

woman-girl-remote-watchingCharter Communications, a leading cable and broadband provider, issued a statement that the current proposed rules would force it to charge customers a fee to rent their broadband modems. In a blog post, the company, which identified itself as the only major broadband provider that doesn’t charge modem rental fees,  said that “deep within” the FCC proposal is a requirement t
hat internet providers charge a modem rental fee and include it as a line item in customers’ bills. The blog continues, “This bears repeating–even if Charter doesn’t currently charge a modem fee and does not want to charge a modem fee, the FCC would require us to do so.”

Also weighing in were the AFL-CIO and the Association of National Advertisers (ANA). The labor organization repeated the criticism that the proposal amounts to a compulsory copyright license that will give third parties access to copyrighted content without having to pay for it. The ANA’s concern was that any proposal “must ensure that advertising is transmitted whole and intact, so that contractual terms can be honored and enforced.”

Perhaps the biggest dog to come out against the proposal is Texas Republican Senator John Cornyn, who asked the FCC to hold off on adopting the regulations until the Judiciary Committee, of which he is a member, has a chance to consider their effect on privacy and copyright law. In a letter to FCC Chair Tom Wheeler, Cornyn expressed concern that third parties delivering content would not be subject to the same regulations that limit cable providers’ access to user data. Cornyn also suggested that the FCC was exceeding its authority, including by creating what appears to be a compulsory copyright license, which is something only Congress has the power to do.

This battle over set-top box deregulation shines a spotlight on one of the most dramatic disruptions in the entertainment ecosystem as a result of the transition to digital delivery. The current system is deeply entrenched. Transition may be inevitable, but it will also be necessary for the FCC to treat existing players with respect so as to retain a rational balance of their economic incentives with the consumer benefits it seeks.

From cast to crew, there is little question that age discrimination still exists in Hollywood.  While stereotypical example is that women of a certain age suddenly stop getting casts for parts; this discrimination may indeed be more prevalent among crew members who are passed over for jobs in favor of younger, albeit less experienced, employees due to concerns that older employees are out of touch or no longer able to put in the long hours required of film and television.

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Copyright: atic12 / 123RF Stock Photo

In an effort to combat this discrimination, SAG-AFTRA, together with the Teamsters, WGA-West, the Association of Talent Agents, and the AARP of California, lobbied the California legislature to require subscription entertainment database websites, specifically IMDb.com, to remove a professional’s age upon request.  The proposed bill, AB-1687, was introduced by Majority Leader Ian Calderon (D-Whittier) and passed into law by Governor Jerry Brown on September 24, 2016.

The law does not apply to general information gathering websites. Only websites that “provide specified employment services” to “paid subscriber[s]” are required to remove the subscriber’s age from his/her profile upon request. Proponents of the law believe that subscribers should be able to control what of their information is disseminated to potential employers and that the elimination of age/DOB will reduce the occurrence of actual or implicit age discrimination in the industry.

The media and technology communities have raised concerns with the new law, specifically questioning whether it is a violation of free speech to suppress the publication of factually accurate information.  Formal challenges to the law have not yet been filed, but are anticipated.

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Having an embarrassing photo posted on FaceBook is bound to happen to everyone. In fact, it is such a common occurrence that FaceBook even created a feature to allow the subject to “untag” his/herself from the photo in order to keep it off of his/her own Facebook feed. But what happens when someone is habitually posting embarrassing photos of you on Facebook? An 18-year-old Austrian woman is testing how privacy laws apply in this age of social media by suing the users that she claims have posted more than 500 embarrassing photos of her on Facebook, without her consent.  The culprits – her parents.  The images – childhood photos.

The woman is claiming that the photos are “violating her rights to a personal life” because they depict stages of her life including getting her diaper changed as a baby, potty training as a toddler, or running around naked as a young child. Despite having asked her parents to take down the photos and cease from future posts, her parents have taken that position that because they took the photographs they have the right to reveal them to the world.

Although this case will be decided under Austrian law, it is likely that similar suits will be subsequently filed in the States. Most states have laws which afford individuals legal privacy rights and the ability to take independent action if those rights are violated. These laws typically include the “public disclosure of private facts” as a privacy violation provided that the subject had a reasonable expectation of privacy regarding those facts.

That is where this case, and future cases, could get complicated. The question raised is whether someone has a reasonable expectation of privacy when they consent to have an embarrassing photograph taken knowing that they picture may very well end up on social media. The more complicated question will also have to be answered as it applies to minors – if a child under the age of consent is photographed by their parents, those legally allowed to consent on the child’s behalf, can the child argue later argue that she or he had a reasonable expectation of privacy or revoke consent? Simply stated, the courts will soon face the task of determining where the line exists between private family or childhood moments and the present social media culture of publically sharing every aspect of our lives.

Until these questions are answered, this case should serve as a cautionary tale for parents, siblings, or friends that like to post embarrassing photos of others. If the subject asks you to remove the photograph, consider abiding by such request.  If not, you could find yourself facing the next social media privacy lawsuit.

With social media applications such as Instagram, SnapChat, and Facebook, it seems like people document almost every moment of their lives online. But what the social media savvy may not know is that these posts could expose them to criminal liability.

A Playboy Playmate is learning this the hard way after taking photographs in a gym locker room and uploading them to SnapChat. One of the photos captured a naked woman using a gym shower.  After the photograph went viral, police began investigating whether the Playmate’s conduct violated California’s “Disorderly conduct: invasion of privacy” law.  The law holds that:

“[A]ny person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person is guilty of disorderly conduct, which is a misdemeanor.”

Despite the Playmate not knowing the woman, and claiming that her post was not meant to be malicious, her actions fall within the conduct penalized by California’s law.  The woman, who remained anonymous for nearly two months, was identified this past weekend and has agreed to cooperate with the police in pressing charges. If convicted, the Playmate could face up to six months in jail.

This law was enacted in 2013 in response to the rising number of instances of revenge porn– that is, distributing a sexually explicit image of another, typically an ex-lover, without the person’s consent.  To date, 34 states have similar laws.  But, as this situation shows, the laws are not limited to malicious conduct and can be imposed on anyone who publishes a photo of another in a state of undress if that person is in a place where he/she has a reasonable expectation of privacy and has not consented to the photo.

Continuing the process that began earlier this year, FCC Chair Tom Wheeler has issued a proposal to the Commission to implement the deregulation of cable set-top boxes.

woman-girl-remote-watchingWheeler’s proposal will require cable and satellite system operators (MSOs) to offer subscribers access to their services by means of a free app. Consumers could keep their boxes or download the app to an alternative device such as a smart TV, Apple or Roku box, or an XBox or Playstation console. In an LA Times op-ed piece yesterday, Wheeler cited two key benefits to cable customers of his proposal . First, he noted that 99% of customers pay an average of $231 annually to lease their set-top boxes, even long after the provider has recouped its cost. The second benefit is that an app-based system would permit integrated search, in which a single search would show the availability of a program over all platforms, whether broadcast, cable or streaming.

Wheeler also addressed the concerns expressed by opponents of the plan that it would harm copyright owners. Wheeler argued that because the MSOs will maintain control over program delivery from end-to-end, they will be able to manage their obligations to their program suppliers.

Wheeler’s proposal does not end the controversy, which now goes to the full FCC for consideration.

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Years ago, photographer Carol Highsmith gifted her photographs to the Library of Congress for its public use. But, as any savvy artist should do, she retained the copyrights to her works.  It then came as a surprise when she later received a letter from a Getty affiliated entity accusing her of copyright infringement for using one of her own photographs.  The letter demanded $120 to settle Highsmith’s “breach.”

Highsmith did some investigating and learned that Getty had been selling thousands of Highsmith’s photographs. The photographs had false watermarks and did not reference Highsmith.  Highsmith turned around and sued Getty for copyright infringement for the 18,755 of her images it is selling on its website.

The lawsuit for $1 billion, alleges that “[t]he defendants [Getty Images] have apparently misappropriated Ms. Highsmith’s generous gift to the American people…. [They] are not only unlawfully charging licensing fees but are falsely and fraudulently holding themselves out as the exclusive copyright owner.”

This is not the first time that Getty has been sued for copyright infringement. In 2013, a jury found that it had willfully infringed on Haiti earthquake photographs.  This prior willful infringement would likely increase the damages owed to Highsmith should this case go to trial.  Analysists expect this case to settle, but do not rule out the possibility that Getty may take this case to court in order to determine whether Highsmith’s photographs are in the public domain and change the rules for stock photo agencies using photos under similar circumstances..

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Decades ago, a corrections officer met a teenage painter in a corrections facility.  He later purchased a painting from the teenager for $100, allegedly to stop the teenager from going back to selling drugs.  The painting was signed “Pete Doige 1976.”  In the 2010s, the corrections officer tried to sell the painting claiming that it was authored by “Peter Doig,” a respected painter whose works sell for millions of dollars.  Doig refused to authenticate the painting and stopped it from being sold at action.  He was sued in 2013 by the corrections officer for a declaration that the work is authentic.

On August 23, the Illinois federal judge presiding over the trial held that Doig was not the author of the painting.  To prove his case, Doig actually tracked down the painting’s true owner. However, since that Pete Doige passed away in 2012, it was the deceased’s sister who testified about the painting’s origin and Doige’s past.

This dispute, which was considered one of the first of its kind because it involved an artist who is still living, had the art world on edge.  Critics were concerned that if the judge ruled against Doig, it would create a presumption that artists do not have the ultimate control over their name, brands, and affiliations and would open the door to an influx of similar lawsuits.  Many believe that the right ruling was reached. As said by Doig in a public statement released by his attorney:

“That the plaintiffs in this case have shamelessly tried to deny another artist his legacy for money is despicable.”

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Copyright: ldprod / 123RF Stock Photo

Pokémon Go, the augmented reality application that has swept the nation under the guise of getting today’s youth away from their computers and outside socializing with one another, is also changing how businesses learn about and target their consumers.  Like most applications, Pokémon Go collects a variety of information about its users, including the user’s email address, IP address, the web page used before logging into Pokémon Go, username, and location.  This information is then shared with “third-party service providers,” and “third parties” to conduct “research and analysis, demographic profiling, and other similar purposes.”  However, unlike previous applications, because of Pokémon Go’s sophisticated map data, which gives block-by-block detail instead of stating the user’s general area, this could be some of the most detailed social data currently available.  Third parties who receive this data will not only be able to determine user demographics, but also analyze where and when their target demographics congregate.

Even without this information, businesses are already capitalizing on the Pokémon Go success by incorporating it into their own advertising strategies.  Storefronts are paying Niantic, the application’s creator, to turn their locations into places to catch, train, or battle Pokémon.  This in turn creates additional foot traffic to the store which the businesses are hoping will in turn create customers.

But not everyone is happy with how Pokémon Go is being used gain information about its users.  It was recently uncovered that users who log into Pokémon Go using a Google account had to agree to provide Niantic with full access to their Google account – including their emails – in order to use the account.  Niantic claims this access was in error and that a patch is being created to end this access.

The creators of Pokémon Go spent over five years scrutinizing map data and historic markers in order to determine where exactly to put its Pokémon portals – the places where its users collect, train, and battle Pokémon.  Despite their best efforts to pick the perfect locations, Pokémon Go is now facing backlash from historic memorials and private property owners about the trouble the portal locations have caused.

pexels-photo-105254Historic memorials, such as the National 9/11 Memorial or Washington DC Holocaust Museum, have seen a steady increase in people at the locations to catch Pokémon.  The representatives of these memorial sites have requested that the locations be excluded from the game so that true visitors are not disrupted.

The portals are not just exclusive to public locations.  Private residences are also susceptible to housing Pokémon locations. Although Pokémon Go claims to warn its users to use common sense and follow all applicable laws, instances have occurred where users have purposefully entered private property without permission or will disrupt a property owner to request access to a backyard or other private area to catch a Pokémon.  One New Jersey resident has taken extreme action to protect his property.  He filed a class action lawsuit against Niantic, the application’s creator, for nuisance and unjust enrichment.  It is unclear whether Niantic could be held responsible for its users’ actions, but the message of this lawsuit is loud and clear – there is a time and place for Pokémon portals and private residences and memorials are not it.

The battle lines are hardening in the controversy over the FCC’s proposal to deregulate cable set-top boxes.

The USwoman-girl-remote-watching Copyright Office recently weighed in against the proposal, on the grounds that it would undermine the ability of cable multi-system operators (MSOs) to enter into stable license agreements with copyright owners. This, the Copyright Office declared, would create a disincentive for the MSOs to pay for content, ultimately harming both creators and consumers. The copyright lobbying group Copyright Alliance promptly issued a statement in strong support of the Copyright Office, defending it against attacks from Public Knowledge and the Electronic Frontier Foundation that the Copyright Office is in the pocket of copyright owners at the expense of the general public.

FCC Chair Tom Wheeler, for his part, said at a press conference that he values the input of the Copyright Office, but that the FCC will fulfill its congressional mandate to ensure set-top box competition, while protecting copyright, privacy and network security.

As I’ve noted before, this is a complicated issue with both economic and policy issues on both sides. One can only hope that the FCC will undertake to balance these interests and promote a genuine compromise.