This is significant because in the past, platforms have utilized federal laws such as CAN-SPAM, which prohibits sending misleading electronic communications, to punish the most egregious spammers. If Twitter prevails in this lawsuit, it puts all users on notice that there is monetary liability for breaching a platform's TOS, which significantly expands the ability of a social media company to reign in prohibited activity by users.
Nowadays, a news story on privacy is out of place if it doesn't mention Do-Not-Track (known as "DNT") or Big Data. While these hot topics represent key concerns for privacy professionals, advocates and regulators, there is no clear agreement on what they mean or how to address the privacy issues they raise. In this post, we consider recent developments on these topics, including how the Federal Trade Commission has sought to focus on and connect these new issues.DNT or DNC DNT is in the midst of a multi-faceted identity crisis, starting with a disagreement over the definition of DNT. Self-regulatory organizations and the advertising industry assert that DNT stands for "Do Not Target," referring to the use of consumer data for the purposes of targeted advertising. The FTC, buoyed by privacy advocates, appears to take the view that DNT means not only "Do Not Target" but also "Do Not Collect" (DNC). FTC Commissioner Brill elaborated at the 2012 IAPP Summit that she doesn't view the current DNT efforts as entirely sufficient because the choice DNT offers does not give consumers appropriate protection against what Brill characterized as "limitless, unmitigated" data collection. But Brill does not argue for wholesale implementation of DNC, and has indicated that the details of the implementation of DNT/DNC will continue to remain a key focus for the FTC.
The Ninth Circuit's recent analysis in MDY v Blizzard Entertainment examined contributory/vicarious ("secondary infringement") copyright issues, the "essential step" defense, the important and often highly disputed contractual covenant versus copyright license issue, and last, but certainly not least, the DMCA's role. I recommend you read the full opinion to gain the complete picture, but for this post we'll be focusing on the copyright covenant vs. copyright license issues and touching on the DMCA's role.
As of late there has been a great deal of news and discussion concerning "web scraping." Web scraping is the practice of using computer software to extract information from a website. In short, a wealth of information exists on the Internet and companies of all stripes are interested in collecting it from websites, compiling and combining it, and using it to further their business.Scraping raises a multitude of legal issues, including issues related to privacy and security intellectual property, and laws concerning unauthorized access to computers and trespass to chattels (in fact, the overlapping issues raised by scraping represent a very good example of what we call "information law"). Many companies attempt to stop scraping of their websites from occurring in the first instance. This can be achieved by implementing technologies such as CAPTCHA (which are becoming ubiquitous) that are intended to ensure that a human is entering the website rather than a computer software program or bot. If technologies like CAPTCHA are evaded by scrapers, some websites might pursue an action under the anti-circumvention provisions of the Digital Millennium Copyright Act (the "DMCA"). The DMCA provides for potential statutory penalties and even criminal sanctions for violations of its anti-circumvention provisions. This post explores how the DMCA might be used in this context and looks at some cases addressing whether circumvention of CAPTCHA (and similar protocols) might result in violation of, and liability under, the DMCA.