Wednesday, January 27, 2010

Temporary Hiatus

Dear Readers:

Over the next few weeks, I will be limited in what I can publish to this blog, but the interruption will only be temporary. I am in the process of writing two articles relating to trademark practice, which are both due at the end of February.

The first (with a working title of “Intent to Defraud: The New Standard for Finding Fraud on the PTO in a Trademark Prosecution Practice”) will be presented during the American Bar Association’s Intellectual Property Law Section Meeting in April, within a larger presentation about ethics in trademark and patent prosecution practices. My co-presenter will focus on the patent prosecution aspects of this analysis. The papers are due, however, in four weeks.

The second (with a working title of “Top 10 Ways to Preserve Your Trademark”) will be prepared jointly with my co-presenter during the Pennsylvania Bar Institute’s 4th Annual IP Institute, also in April. Again, the papers are due at the end of February.

As much as possible, I will try to post about relevant developments in these areas during the coming weeks. If I am silent, however, be sure to check back at least at the end of February, when I should be back to a more active posting schedule.

Christina Frangiosa
Privacy and IP Law Blog

Thursday, January 14, 2010

Netflix Sued for Alleged Privacy Violations

Part 2 of the “Two New Privacy Lawsuits Filed” Topic

Also on December 17, 2009, (see prior post about Facebook complaint), a Jane Doe plaintiff and three other individual plaintiffs filed a Class Action Complaint in the Northern District of California against Netflix and John Doe defendants 1-50, alleging violations of the Video Privacy Protection Act (18 U.S.C. § 2710), various California consumer protection statutes and common law claims for unjust enrichment and public disclosure of private facts in connection with Netflix’s “Prize” offered to the computer developer who succeeded in creating computer algorithms that improve Netflix’s recommendations tool by the largest margin. Valdez-Marquez et al. v. Netflix, Inc., et al., Case No. C 09-05903 (N.D. Cal.); see also WSJ Law Blog, “Did Netflix Violate Subscribers’ Privacy? Lawsuit Says Yes,” posted Dec. 18, 2009.

As the company’s web site explained, “The Netflix Prize sought to substantially improve the accuracy of predictions about how much someone is going to enjoy a movie based on their movie preferences.” Netflix Prize (last visited Jan. 14, 2010). The best algorithm would win the $1 million grand prize, and indeed was awarded on September 21, 2009.

A copy of the complaint can be found on the Wall Street Journal’s site, and an article about the complaint (with a separate link to the complaint) was also published on’s Threat Level Blog: Ryan Singel, “Netflix Spilled Your Brokeback Mountain Secret, Lawsuit Claims,”, Dec. 17, 2009.

Interestingly, a university professor identified a problem with the anonymizing tools Netflix used in 2006 and argued that Netflix should not move forward with its newest contest, “Netflix Prize 2”, which would again release “anonymous” data on which the new algorithms would be based. See Paul Ohm, “Netflix's Impending (But Still Avoidable) Multi-Million Dollar Privacy Blunder,” posted on Freedom to Tinker (hosted by Princeton University's Center for Information Technology Policy) on Sept. 21, 2009.

Professor Ohm’s analysis identifying potential risks of data breach was further discussed in an article on Network World. Ian Paul, “Netflix Prize 2: What You Need to Know,” Network World, Sept. 23, 2009.

Apparently, Netflix has not yet rolled out the data associated with Netflix Prize 2 – at least, according to its web site, the details of the contest would be announced “shortly,” and prizes would be awarded for the “best results at 6 months and 18 months” instead of the 3 years associated with the original contest.

Thursday, January 7, 2010

Two New Privacy Lawsuits Filed -- Part One, Facebook

Within the last few weeks, two major companies have been sued for alleged violations of privacy laws – one filed before the Federal Trade Commission seeking an investigation into Facebook’s privacy settings and the other filed in federal court, styled as a class action against Netflix. (The Netflix suit will be analyzed separately, in Part 2 of this topic.)

Facebook Complaint

On December 17, 2009, privacy advocates filed a complaint with the Federal Trade Commission, requesting that “the FTC open an investigation into Facebook’s revised privacy settings.” In the Matter of Facebook, Inc., Docket Number ---- (FTC); see also EPIC’s Press Release, “EPIC Defends Privacy of Facebook Users: Files Complaint with the Federal Trade Commission,” Dec. 17, 2009.

Facebook announced its privacy policy revisions in a December 9 Press Release, “Facebook Asks More Than 350 Million Users Around the World To Personalize Their Privacy; Service Gives Users New Tools to Control Their Information” – which suggested that the changes would actually benefit users, and help them protect their information. In fact, however, these changes potentially undo the restrictive settings that users may have applied to keep their profiles closely guarded and viewable only by “friends.”

A copy of the Complaint, Request for Investigation, Injunction and Other Relief can be found on EPIC’s site, but EPIC is not the only plaintiff. Nine other consumer protection organizations have joined, namely the American Library Association (see also their privacy resources), The Center for Digital Democracy (see also a Dec. 17 blog post that explains CDD’s reasons for joining the complaint), Consumer Federation of America, FoolProof Financial Education, Patient Privacy Rights (see also their Dec. 11 criticism of Facebook’s privacy policy changes and their Feb. 18 analysis of the Complaint Almost Filed Against Facebook), Privacy Activism, Privacy Rights Now Coalition, The Privacy Rights Clearinghouse and the U.S. Bill of Rights Foundation. (If the organization name is not hyperlinked, it’s because I could not find an updated web site for the organization. If you find one, please post it in the Comments section below.)

Other Information about Facebook’s Privacy Policies

* EPIC has also developed an “In Re Facebook” page, on which it summarizes all of the actions it has taken to date relating to privacy issues faced by Facebook participants, provides a background to the debate, and chronicles various articles that have been written about the complaint. (Last updated on Dec. 30, although it appears to be kept current, so keep checking back.)

* The Electronic Frontier Foundation (EFF) has also posted (Dec. 21) an interesting article on its Deep Links Blog entitled, “Who Knows Who Your Facebook Friends Are?”, discussing how Facebook’s changes to its privacy policies have exposed users’ list of friends – thus causing real problems for political activists operating under oppressive regimes. Another EFF article worth reviewing in detail is “Facebook's New Privacy Changes: The Good, The Bad, and The Ugly” (Dec. 9).

* The New York Times’s Brad Stone blogged about the lawsuit in an article entitled “Privacy Group Files Complaint on Facebook Changes,” (Dec. 17) which has been updated to include Facebook’s response to the Complaint. The response notes that Facebook “discussed” the revisions to its privacy policies with regulators, including the FTC.

FTC Releases its Staff Report on its 2/09 Fraud Forum

On December 29, 2009, the Federal Trade Commission's Division of Marketing Practices released its “Staff Report on the [FTC]’s Fraud Forum.” See Report. The report analyzes the recommendations and conclusions made during the FTC’s February 2009 meeting on the topic of preventing consumer fraud. See 12/29/09 Press Release.

The report analyzes the types of scam artists, some of the common scams that have been (at least marginally) successful, the types of victims, reasons why these crimes might be unreported or underreported, and upcoming challenges such as payment system frauds or phishing, spoofing and keystroke logging. The report also makes several proposals for improving the FTC’s anti-fraud program.