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Groundbreaking App Privacy Ruling
There's been a wave of class actions alleging that video companies such as Hulu and Viacom have violated the federal Video Privacy Protection Act (VPPA), which prohibits companies from sharing personal information about video “subscribers” with third parties. Plaintiffs have struggled to get these cases off the ground, but that could change in light of a groundbreaking decision issued by the U.S. Court of Appeals for the First Circuit. Yershov v. Gannett Satellite Information Network Inc., 15-1719.
In its ruling, the First Circuit revived a class action lawsuit alleging that Gannett unlawfully disclosed information to a third party about a user of its USA Today app. The lead plaintiff in the case, Alexander Yershov, alleged that Gannett violated the VPPA by disclosing “the title of the videos he had watched, his unique Android ID, and his GPS coordinates” to Adobe Systems, which uses data analytics to create user profiles for its clients.
VPPA class actions have two major legal questions. First, whether an app user is the sort of “renter, purchaser, or subscriber” to which the law applies. Second, whether “personally identifiable information” has been disclosed to a third party.
The First Circuit panel, which included former U.S. Supreme Court Justice David Souter, found on the first question that while Yershov did not pay for the app, the relationship was “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.”
Turning to the second question, the appeals court held that “while there is certainly a point at which the linkage of information to identity becomes too uncertain, or too dependent on too much yet-to-be-done,” that was not the case with Yershov's video titles, GPS coordinates and Android ID.
' Jennifer Williams-Alvarez, Corporate Counsel
Songkick Injunction Bid Over Presales Rejected
Concert ticket seller Songkick lost its bid for a preliminary injunction to block Live Nation Entertainment Inc. and Ticketmaster LLC from charging hefty fees on “presale” tickets provided to artists and then sold on the Songkick.com platform. Complete Entertainment Resources LLC v. Live Nation Entertainment, Inc., 2:2015cv09814 (C.D.Calif.).
Complete Entertainment, which does business as Songkick, sued Live Nation and Ticketmaster in the U.S. District Court for the Central District of California The complaint alleges that the two hold a monopoly on venue ticketing, and use that market power to pressure artists to sell their allocated tickets ' so called presale or fan-club tickets usually totaling 8% to 10% of the house ' at prices equal to those charged by Ticketmaster.
In March 2016, Complete Entertainment filed for the preliminary injunction, accusing Live Nation of retaliating against the lawsuit by threatening to withhold artists' ticket allocations if they did not charge higher service fees.
In rejecting the preliminary injunction request, District Judge Fischer wrote that Complete Entertainment had not shown that Ticketmaster was acting outside of contract terms governing presales and definitions of fan clubs. Complete Entertainment's “logic is basically (1) defendants have a large market share in the ticketing services business, (2) defendants are preventing plaintiff, a competitor, from doing something it wants to do, therefore (3) defendants should be stopped by this court,” Judge Fischer wrote. “That is not an antitrust analysis.”
The district judge also noted “that plaintiff has room to continue to operate either with venues not related to defendants or by cooperating with defendants' fan club policy.”
' Cheryl Miller, The Recorder
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