Privacy Wars: Netflix, Facebook and the 'Brokeback Mountain Effect'

By Eriq Gardner

Will "Brokeback Mountain" shape rules concerning the responsibility of websites to guard user privacy?

The debate over privacy on the Internet got much louder yesterday when a group of privacy advocate organizations filed a complaint with the FTC over recent changes made by Facebook to user information seen by the public. Meanwhile, a class action lawsuit was filed yesterday against Netflix for breaking various privacy codes when the video rental service held a contest and released information about its users' preferences.

Let's take the Netflix case first — a possible path-breaking piece of litigation that has the potential to influence the Facebook debate.

The lawsuit was filed by a group of individuals lead by a Jane Doe who identifies herself only as a lesbian. In the complaint, the plaintiffs take issue with a contest that Netflix ran in October 2006 where the company offered $1 million to anybody who could come up with an algorithm to improve upon its movie recommendation engine by 10 percent. Netflix opened the contest to the public and gave participants a lot of data, including 100 million subscriber movie ratings.

A few weeks after the contest began, researchers at the University of Texas published a paper entitled, "How to Break Anonymity of the Netflix Prize Dataset," describing a method of unmasking that compared Netflix ratings with those made on Internet Movie Database. The researchers wrote they were able to uncover political preferences and other sensitive information of its users. 

The plaintiffs call this the "Brokeback Mountain Factor," referring to an idea that anybody who has the movie in their queue is more likely to be homosexual. (Last year, we wrote a cover article for Psychology Today describing how scientists were using taste preferences to glean revealing information about individuals.) 

The lawsuit argues that Netflix broke its own privacy policy, seeks $2,500 in damages for each of its more than 2 million users, and asks for an enjoinment from launching a second contest that will give out user data including ZIP codes, age, and gender with movie ratings.

The same day this lawsuit was filed, the FTC got a complaint over recent changes made by Facebook that has opened up to the public user information including names, friends and fan pages. The filing includes quotes by aggrieved users but is somewhat short on real examples of the damage potentially caused to Facebook's users.

We're guessing that some will soon connect the dots here and push the FTC to recognize threats of data mining in the alleged privacy breach.

Why Ron Livingston didn't sue Wikipedia

By Eriq Gardner

Actor Ron Livingston and his lawyer may be in the process of showing others how to fight anonymous Internet pranksters.

On Friday, the actor best known for "Office Space" filed this lawsuit in Los Angeles Superior Court. At issue is an anonymous individual who keeps changing Livingston's Wikipedia profile and creating Facebook pages to create the appearance he's in a gay relationship. Livingston is alleging that his unidentified troublemaker committed "despicable acts," including libel, invasion of privacy, and misappropriation of name and likeness.

One might wonder why Livingston isn't suing Wikipedia. 

Here's the problem: Section 230 of the Communications Decency Act gives broad protections to web hosts on libel claims by stating, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

We figure that Livingston's lawyers at Santa Monica's Kinsella Weitzman firm realize that battling Wikipedia directly wouldn't be the best strategy.

We're guessing that Livingston will next attempt to subpoena Wikipedia and Facebook for the identification of the user, followed by a request for an injunction against the user from making further updates. 

This might be the best legal recourse available for Livingston — and anybody targeted by anonymous defamation on the web. Unfortunately, the litigation is going to come at a price. The litigation is now part of Livingston's official legacy—and is, of course, fair game for his Wikipedia page.

Case Tracker: Letterman's YouTube problem; Apple's Eminem problem; Jack Thompson's Facebook problem

Here's a roundup of some stories we've been following:

• We covered the legal ramifications of David Letterman's admission to having an affair with "Late Show" female staffers last week. This appears to be a sensitive topic for CBS as the network is doing everything in its power to keep clips of Letterman's admission off YouTube and other media websites.
• Apple has wisely settled its beef with Eminem. The rapper's publisher claimed it was due more money from digital sales, but the trial won't reach any conclusion after the parties reached an undisclosed settlement.  
• Remember Jack Thompson, the zealous Florida attorney who went after video games for violent content and eventually lost his law license for obstruction of justice? Thompson has now filed a lawsuit against Facebook for hosting hate groups on the social networking website. He believes the groups have threatened him.
• According to an story by ABC News, peephole victim Erin Andrews' "own detective work was integral in helping investigators track and arrest her suspected stalker." And what did that detective work consist of? Identifying the exact room, date, and location where she wore a pair of blue jeans that appeared in the video.

Is the Facebook movie asking for litigation?

By Eriq Gardner

The forthcoming movie about the founding of Facebook is becoming more intriguing by the second.

The movie is being written by Aaron Sorkin, produced by Scott Rudin, Michael De Luca and Dana Brunetti for Columbia, and may be directed by "Curious Case of Benjamin Button" helmer David Fincher.

So the question is what Facebook story is being told. There are unconfirmed reports that the script will be based on a just-released book by Ben Mezrich called "The Accidental Billionaires," which according to a review in The New York Times this weekend, is largely based upon the account of early Facebook employee Eduardo Saverin. We can't confirm that Sorkin is using this book as source material, but if he is, the project could ruffle some feathers.

The controversy surrounding the founding of Facebook is well-chronicled, especially the lawsuit over whether Facebook founder Mark Zuckerberg stole the original Facebook code when he was a student at Harvard. Before that case was settled, embarrassing documents came out from Zuckerberg's past, and the litigation became quite nasty. According to CNet, those documents included revelations that Zuckerberg had sued Saverin for allegedly trying to freeze the company's bank account. Severin responded with a countersuit.

New York magazine points out that Mezrich has a history of being somewhat of a non-fiction fabulist — the Columbia film "21" took liberties on his book, "Bringing Down the House," which was said to contain some inventions — and according to the NYT review, "'The Accidental Billionaires' is so obviously dramatized, and so clearly unreliable, that there's no mistaking it for a serious document."

If Mezrich is getting into trouble over taking liberties and using someone with a legal axe to grind, we're wondering whether Sorkin will avoiding these same pitfalls. Will he acknowledge the legal wrangling that makes ascertaining the truth difficult? Will he make a movie full of Rashomon-type perspective? Will lawyers working on the movie have any say in what's being portrayed on screen?

Google: Viacom's own employees uploaded videos on YouTube

By Eriq Gardner

Remember that massive copyright lawsuit Viacom filed against Google over video uploads on YouTube?

Still going. Justicia has recently uploaded a number of discovery motions and documents entered into the record in the $1 billion case.

One thing in particular caught our eye: On February 27, Google's legal team introduced into evidence an internal e-mail that seems to make a shocking charge -- that Viacom has sent DMCA takedowns on material its own employees have uploaded. 

Here's an e-mail from one Google employee to another that expresses a bit of confusion about what to do with a DMCA takedown notice received on "SpongeBob SquarePants" episodes on the website:

Hello,

We received a DMCA from Viacom with a request for the removal of 19 Spongbob URLs. However, when I looked them up, they were uploaded by joe.ruffalo at nick.com and are marked Premium. Before I noticed, I took down the two links, but immediately reinstated them so they should stay up. Still, Mark probably received two email notifications that we took down a video, just fyi.

Any suggestions on what to do in this case? Perhaps we can reach out to the partner and have them get in touch with their copyright team?

For reference, I've pasted the DMCA request below.

Thanks,

Sarah Kate

Google/YouTube are claiming that they can't be expected to do a perfect policing job if even Viacom gets confused on these matters. Google wants more information from a piracy protection company that Viacom has hired. A bit of gamesmanship that should explain why the pre-trial phase is taking so long and some of the legal battles happening behind the scenes. 

Others, including lawyers at Facebook, should pay attention because a lot of very good questions are being asked about a website's duties under the DMCA to police for infringement. 

Go ahead and put Coldplay on your MySpace page

By Eriq Gardner

Allowing users on social network sites like Facebook and MySpace to embed music into their profiles was a fast-growing business until some of the major record labels started shouting about copyright infringement and demands to be paid royalties.

Now one of the popular embed music services, Project Playlist, is climbing itself out of a litigation ditch by making some crafty deals. After finding some respectability by hiring former Facebook executive Owen Van Natta as its CEO in November, the company signed a license agreement with Sony BMG the following month. Still, Project Playlist faced lawsuits by Warner, EMI, and UMG and had its widgets banned by Facebook and MySpace.

Now, Project Playlist has announced it has settled with one of the plaintiffs, EMI, allowing EMI artists like Coldplay and the White Stripes to be embedded by the some 10.4 million Playlist fans. Figuring out a way to monetize the embedding of music is another story. Competitor Last.FM has struggled with this, announcing yesterday that it would be charging subscriptions to international users.

Meanwhile, in other Facebook news, the company has hired a former ACLU privacy lawyer, Timothy Sparapani, to counsel on the company's many privacy issues. 

Litigators of America have added Facebook as a friend

By Eriq Gardner

In the past year, Facebook has faced a library's worth of nasty ink. 

First, Scrabble-gate. Then Harvard-gate. Let's not forget law-firm-gate.

The social-networking, user-generated, lawsuit-gathering hub inspired the most wrath when it recently tried to change their terms of service for users so as to appear to claim ownership over any photograph and personal updates posted to its site. Faced with a a user rebellion and the threat of a formal legal complaint by a coalition of consumer advocacy groups, it backed down.

Now, Facebook might be getting a taste of its own medicine.

Madison Avenue, home of Don Draper wannabees, is all a-twitter over a new marketing campaign by Mars Snackfood US. 

Mars has launched a website for the popular candy, Skittles, that apes the look and feel of Facebook. (Actually, Mars is also stealing the idea from another company, but that's another story.)

There's something deliciously ironic about Skittles' new brand campaign, but we can't imagine the suits at Facebook will be taking too kindly to this development. After all, they sued a German website last year for similar trademark hijacking.

Yes, things were a lot simpler in Draper's time.

Lawyers and Word Games Coming To Facebook

By Eriq Gardner

For those still pining over the loss of Scrabulous on Facebook, some good news.

One of Scabulous' founders reports that an Indian Court has ruled that game itself doesn't violate Mattel's intellectual property rights. The ruling was a mixed one, however, as the court also enjoined the company from using the "Scrabulous" name due to trademark infringement. Mattel filed the lawsuit back in February 2008.

In other news, Facebook has recruited a bonafied legal heavy to its team. Ted Ullyot, a partner at Kirkland & Ellis and ex-chief of staff to former U.S. Attorney Alberto Gonzales, has joined the company as general counsel.

The Legal Art Of Backing Off

Posted by Eriq Gardner

Just a couple of updates to some stories we've been following.

It first appeared that Facebook had decided to shut down Scrabulous after Hasbro sued the makers of the widget. But it turns out that Facebook has taken a cautious approach, forwarding Hasbro's take-down notice to Scrabulous, who decided to pull the plug on their own to the popular application. So no need to read any implications in how social-networking sites are responding to DMCA threats from this...just yet.

In other news, the lawyer who sued his hometown newspaper for fraud after they cut news staff has dropped the suit. Seems like he made his point, and after meeting with the newspaper's management, he's in the process of writing an opinion piece about the state of the newspaper industry for the same newspaper.

Hasbro Finally S-U-E-S Over Scrabulous

Posted by Eriq Gardner

Hasbro looked hard at the board and after more than a half a year of squabbling, finally figured out how to spell "lawsuit." The maker of Scrabble is suing two Indian brothers behind the popular Facebook application Scrabulous, claiming the game infringes the company’s intellectual property. It's hoping for triple-word-score damages.

Scrabulous, which let its users play an online simulation of the popular board game Scrabble, has earned a devoted following of more than 840,000 users and its removal sparked a tremendous “Save Scrabulous” backlash.

Legal experts point to the Copyright Office’s guidelines on the copyrighting of board games to note that the “underlying idea of a game can’t be copyrighted.” Certain bits of expression, like the board game diagram and the tile pieces, are copyrightable,  but Hasbro’s best claim may be on trademark rights.

The key question is what happens to Facebook. Hasbro asked Facebook to remove the game under the Digital Millennium Copyright Act. For a while, it seemed the company had complied but the game popped up again.