Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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The First Circuit Court of Appeals’ recent decision in Yershov v. Gannett Satellite Information Network, Inc. may carry important implications for mobile app pr

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First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps

First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps | Socially Aware

The First Circuit Court of Appeals’ recent decision in <a href="http://media.ca1.uscourts.gov/pdf.opinions/15-1719P-01A.pdf" target="_blank" rel="noopener">Yershov v. Gannett Satellite Information Network, Inc.</a> may carry important implications for mobile app providers seeking to navigate federal privacy laws—in particular, the <a href="https://www.law.cornell.edu/uscode/text/18/2710" target="_blank" rel="noopener">Video Privacy Protection Act of 1988</a> (“VPPA”). Although Yershov is not the first case to consider how the VPPA applies to mobile apps, the opinion contains two key holdings regarding (1) the scope of protectable personally identifiable information and (2) the treatment of free app downloaders under the statute.The VPPAThe VPPA was passed in 1988, after the video rental history of then-Supreme Court nominee Judge Robert Bork was disclosed in a newspaper article during debate over his nomination. Quoting the VPPA, the Yershov opinion explains that the statute is intended to preserve personal privacy in connection with the rental, purchase or delivery of video and audio materials and creates a “civil remedy against a ‘videotape service provider’ for ‘knowingly disclos[ing], to any person, [personally identifiable information] concerning any consumer of such provider.’” Of relevance in Yershov, the statute defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a videotape service provider.” The VPPA defines personally identifiable information to “include[] information which identifies a person as having requested or obtained specific video materials or services from a videotape service provider.”Case BackgroundAccording to the allegations in Yershov’s operative complaint, which were taken as true for purposes of the First Circuit’s opinion, Yershov downloaded the free USA Today mobile app (“the app”) on his Android mobile device in late 2013. The app is offered by Gannett via the Google Play Store and allows the user to access various USA Today media and content, including videos, on the user’s mobile device.Yershov claims that he watched numerous video clips on the app. Each time, Yershov’s operative complaint states, Gannett and its third-party marketing and analytics vendor collected three pieces of data: (1) the title of the video Yershov viewed; (2) the GPS coordinates of the device Yershov used; and (3) Yershov’s unique Android ID. According to Yershov, the vendor used this information to create “digital dossiers” for Yershov and similarly situated users, which Gannett in turn used to provide targeted advertising. Yershov says he never consented to the collection of this data. He filed a putative class action lawsuit as a result, claiming that Gannett’s actions violated the VPPA.Gannett successfully moved to dismiss Yershov’s VPPA claim. The district court held that the information Gannett collected and disclosed to its vendor constituted personally identifiable information, but nevertheless concluded that Yershov was not a “consumer” with a right of action under the VPPA because he failed to allege that he was a renter, purchaser or subscriber of Gannett’s video content. Yershov appealed.First Circuit Revives Yershov’s ClaimThe First Circuit reversed the district court’s dismissal order and remanded for further proceedings.First, the panel agreed with the district court that the information conveyed to the vendor by Gannett constituted personally identifiable information under the VPPA. According to the panel, the VPPA’s “abstract formulation” of personally identifiable information does not require the information at issue to “explicitly name[] a person” to come within the ambit of the statute. Rather, it is sufficient if the information “effectively reveal[s] the name,” or identity “of the video viewer” without too much uncertainty or “yet-to-be-done, or unforeseeable detective work.”Because Yershov alleged that Gannett’s vendor could connect the GPS coordinates and Android ID with a given person’s “name, address, phone number, and more,” the panel concluded that he sufficiently alleged a “firm and readily foreseeable” link between the data collected and the user’s identity.Second, the panel addressed the “closer question” of whether Yershov is a “subscriber” and, therefore, a consumer under the VPPA. Lacking a clear statutory definition, the panel evaluated various dictionary definitions of “subscribe,” which “include as an element a payment of some type and/or presume more than a one-shot transaction.”The panel expressly rejected the notion that the term “subscriber” incorporated a monetary payment requirement. Requiring monetary payment as an element, the panel reasoned, would render “subscriber” superfluous since the statute also lists “purchaser” and “renter” under its definition of “consumer” and those terms necessarily imply the payment of some monetary amount. According to the panel, “Congress would have had no need to include a third category of persons [i.e., subscribers] protected under the Act if it had intended that only persons who pay money for videos be protected.”The panel also found it significant that, in 2012, Congress considered the impact of the VPPA on video content in the age of the Internet and left the definition of “consumer” untouched—an indication, according to the panel, that “Congress understood its originally-provided definition to provide at least as much protection in the digital age as it provided in 1988.”In the end, the panel concluded that qualifying as a “subscriber” requires some kind of relationship between the individual and the video provider that gives the individual some form of special access to the video content. As the panel stated:[B]y installing the App on his phone, thereby establishing seamless access to an electronic version of USA Today, Yershov established a relationship with Gannett that is 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.Looking AheadThe Yershov decision is not without its critics. Its holdings conflict with the opinions of other courts that have considered similar issues.For example, federal district courts including the Northern District of California and the District of New Jersey have concluded that a unique, numerical device identifier is not personally identifiable information under the statute. Yershov does not address these contrary decisions.Further, in the 2015 case <a href="http://www.leagle.com/decision/In%20FCO%2020151009060/ELLIS%20v.%20CARTOON%20NETWORK,%20INC." target="_blank" rel="noopener">Ellis v. Cartoon Network, Inc.</a>, the Eleventh Circuit adopted a narrower reading of “subscriber,” requiring more of a “commitment” than that which arises from downloading a free app. Yershov distinguished the process associated with downloading and installing the apps in the Ellis case, but the Yershov and Ellis courts’ diverging conclusions could indicate a more fundamental disagreement aboutwhat it means to download and use free software.Yershov shows the continuing split among courts interpreting the scope of the VPPA. As a result, B2C website operators and mobile app developers that deal with video and audio materials will want to continue to monitor VPPA case law developments, and to seek to identify and address associated legal risks.*          *        *For other Socially Aware blog posts on the Video Privacy Protection Act, please see <a href="http://www.sociallyawareblog.com/2015/09/30/su/">Court Nixes VPPA Claim</a> and <a href="http://www.sociallyawareblog.com/2014/05/02/if-you-host-videos-on-your-website-read-this-blog-post-regarding-the-video-privacy-protection-act/">If You Host Videos on Your Website, Read This Blog Post Regarding the Video Privacy Protection Act</a>.