Netflix’s Facebook app could be illegal – Maybe.

Netflix’s Facebook app is up and running in all 46 countries where it offers service — all except America.  Because of a law referring to “prerecorded video cassette tapes or similar audio visual materials.”

The video streaming service is blocked from creating a Facebook app in America because of a 1980s law.  The law, Video Privacy Protection Act (VPPA), is meant to protect consumers’ privacy, and lawmakers are currently dealing with how to update it, but as of now it creates a difficult obstacle for video streaming companies like Netflix.

Oddly, the VPPA has no bearing in current times, as it arose during the  failed Supreme Court nomination of Robert Bork.  In 1987, while Bork’s nomination hearings were taking place, , a freelance writer for the Washington City Paper,  Michael Dolan, talked a video store clerk into giving him Bork’s rental history.  The city paper published the list – and Congress got upset and passed the VPPA.  The law prohibits “a video tape service provider” from disclosing its customers’ “personally identifiable information,” without written consent from the consumer.

While the VPPA may be focused on the VHS world, Netflix said the vague language leaves the present-day situation unclear. Steve Swasey of Netflix said they’d rather be in compliance than have a problem on their hands under VPPA.  Netflix is not a VPPA novice.  The company disclosed that it paid $9 million to settle a 2011 lawsuit by customers who alleged that Netflix didn’t delete their personal account data after one year (another VPPA provision).

Hulu, on the other hand, has developed a go-around to VPPA.  They allow users of their Facebook app to opt-in or opt-out of sharing their viewing history.  It’s unclear as to exactly why Hulu can have an app and Netflix can’t, though it is arguable that the difference lies in the fact that Hulu does not have a hard product (DVDs, etc.) while Netflix does.  Could that be the defining factor under VPPA?  Since streaming did not exist in the 80s, it may come down to the spirit of the law – until an updated law takes its place.

 

by: Sheheryar Sardar, Esq. & Benish Shah, Esq., Sardar Law Firm LLC

For more information on social media law, contact: Sardar Law Firm at sardar@sardarlawfirm.com.

Follow Sardar Law Firm on Twitter @sardarlawfirm

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Employers Asking for Facebook Passwords Could be Violating Federal Law (Really)

According to recent reports, certain employers across the country are demanding the social networking information from job applicants as part of the interview process — including photos and personal messages not shared with anyone else; they want user names and passwords for social networking and email websites from all applicants.

In one case, the Associated Press reported a statistician was asked for his Facebook user name and password so that the employer could review private components of his profile as part of the interview process for the job he was applying for.  The Maryland Department of Corrections has begun asking applicants to browse through their Facebook accounts in the presence of an interviewer.

At least two other cases were identified where individuals who were applying for jobs were required to turn over Facebook passwords and user names in order to be considered for the job they were applying for, as well as a city that, until recently, required job applicants to provide access to their email accounts.

The first thought here is:  is it okay for an employer to ask for my political views, sexual orientation, whether I’m in an inter-racial marriage or if I have kids, and so much more?  Generally speaking, the rational part of the mind screams that this cannot possibly be okay.

Even Facebook came out against this practice.  Facebook noted that the practice “undermines the privacy expectation and the security of both the user and the user’s friends” and could expose employers to lawsuits based on discrimination if the employer discovers the individual is a member of a protected group and then does not hire that person.

Turns out, that may actually be the case.

U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) today called on the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice to launch a federal investigation into this trend by employers.

They argued that this trends represents a violation of personal privacy and could set a dangerous precedent, while making it more difficult for Americans to get jobs.  It would also expose employers to discrimination claims because these social networking sites have information on things that employers are not supposed to ask about, or make a decision based on (religion, race, age, marital status, pregnancy status,, etc).

“I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks,” said Blumenthal. “A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy.

Facebook itself has warned employers that it would take legal action against them for these practices.  Citing “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles,” Facebook’s chief privacy officer warned that the company could “initiate legal action” against employers who do so.

In at least two states, Illinois and Maryland, lawmakers are pondering possible legislation to prohibit public employers from asking job applicants to turn over their passwords to their private Facebook accounts.

The question may be up in the air right now, but it seems that it would be better to err on the side of caution as an employer and let a potential employee’s private life remain private in an effort to avoid discrimination claims.

by: Sheheryar Sardar, Esq. & Benish Shah, Esq., Sardar Law Firm LLC

For more information on social media law, contact: Sardar Law Firm at sardar@sardarlawfirm.com.

Follow Sardar Law Firm on Twitter @sardarlawfirm

Follow Social Media Legal Twitter @socialmedia_law 

Uploading Images on Pinterest Can Get You Sued?

Pintrerest, one of the fastest growing sites in the social media world has created an interesting problem for users.  

While scouring the web, you found high quality images on the latest trends in gothic interior decoration that captured your aesthetic. You save them onto your computer and upload them on your Pinterest profile.  It immediately enhances your profile and attracts a legion of followers. Pinterest finds them unique enough to sell the images to third parties. In four weeks you are served with a demand letter by counsel for an interior decoration company that owns the photos for damages, threatening a lawsuit if you don’t pay up. What happened?

In a nutshell, you violated Pinterest’s User Agreement, and Pinterest isn’t responsible. The Boston Business Journal quickly determined it was better to be safe than sorry and within a day of posting images it used in its coverage of real estate development it deleted them. A quick analysis of Pinterest’s terms quickly leads to one conclusion: you must own or otherwise have the authority to grant Pinterest’s parent company “a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit” the image. In simpler terms, you must either be the original owner or else have permission from the owner to allow Pinterest to utilize the image in any of the ways the user agreement sets out.

By using Pinterest, you are agreeing to something that many people and companies don’t fully realize: copyright ownership or licensing. In the social networking era, it’s become far too easy to copy images strewn across the web and make them our own. The problem is that it may open you up to liability. With the courts imposing fines of up to $150,000 for each song uploaded that is otherwise owned by a record label or recording artist, it’s not entirely impossible for owners of images to request damages that match the commercial value and potential of the images used. The law is still evolving in this realm, but with service providers and platforms such as Pinterest shielded from liability arising from its users’ conduct, it’s become all too important to be careful. If not, you may be paying a steep price for your Pinterest profile.

Sheheryar Sardar, Esq., is a Partner at Sardar Law Firm LLC with substantial experience in entrepreneurship.