This week the Federal Trade Commission (FTC) announced that it is contemplating a settlement agreement with online advertiser ScanScout to bar the company from misrepresenting how it tracks consumers’ online behavior through cookies. ScanScout uses online video advertisements embedded with Flash cookies to track and record consumers’ browsing habits. The company’s privacy policy stated that consumers could opt out of receiving cookies by changing their browser settings to prevent cookies. Yet, as the FTC alleged, changing browser settings did not “remove or block the Flash cookies used by ScanScout.”

As the FTC describes, a cookie is “information that a site saves to [a user’s] computer using [a] web browser.” Cookies track and record a user’s browsing activities, including the sites a consumer visits, the search terms a consumer uses, and whether a consumer clicked on an ad. A Flash cookie, in comparison, uses Adobe Flash technology to store information about browsing activities, including settings and preferences. As the FTC explains, using browser settings to delete cookies “won’t necessarily delete the Flash cookies stored on your computer.” Therefore, consumers who followed ScanScout’s directions to delete cookies were allegedly deceived into believing that they had successfully deleted cookies from their computer. Continue reading →

Lindsey Davis

Can a state regulate a public school teacher’s Facebook “friending” powers? In case you missed it a few months back, the Missouri Legislature in July sought to do just this when it passed Senate Bill 54, designated §162.069.4 RSMo. Legislators repealed the bill less than two months later, but as originally written, it held that “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” The bill would have extended to any social networking site, not just Facebook. The purpose: to prevent inappropriate contact, especially sexual misconduct, between students and teachers, according to online commentators. More specifically, the bill would also have required school districts to develop written policies about interactions between students and school district employees that “…include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child’s legal custodian, physical custodian, or legal guardian.”

The bill would have gone into effect Aug. 28, but the Missouri State Teachers Association jumped on a lawsuit against the State and Governor Jay Nixon. On Aug. 26, a Cole County, Missouri, judge issued a preliminary injunction preventing teacher discipline for not complying with the statute. Judge Beetem found the bill a violation of teachers’ First Amendment rights. “Even if a complete ban on certain forms of communication between certain individuals could be construed as content neutral and only a reasonable restriction on ‘time, place, and manner,’ the breadth of the prohibition is staggering. …The Court finds that the statute would have a chilling effect on speech,” Judge Beetem wrote. Given the fundamental right implicated and finding that the plaintiffs had a substantial likelihood of succeeding on the merits, the court found sufficient support for the preliminary injunction. See Missouri State Teachers Ass’n v. Missouri, No.11AC-CC00553 (Mo. Cir., Aug. 26, 2011). Continue reading →

CC Image Courtesy Flickr User Velo_City

While there is high demand to license the publicity rights of professional athletes for use in products such as apparel and video games, obtaining these licensing rights can be a confusing process because of the many players, corporations, and organizations involved. In the past, the process was so overwhelming to some major licensors, such as the players of the National Basketball Association (NBA), that they sold their group licensing rights back to their respective athletic associations rather than managing the rights themselves.  A Seattle-based startup company launched last week purports to offer a new model for granting these group licenses. Playmark, Inc., claims to offer a Web-based portal for interested parties to license the rights of National Football League (NFL) players for various commercial applications.

NFL players have not sold their publicity rights back to the NFL. That means that the NFL itself has the rights to license team names and logos, but not the images, likenesses, and signatures of NFL players.  The scope of the NFL’s licensing rights has been a subject of recent litigation (notably in the Supreme Court case American Needle, Inc. v. National Football League, 130 S.Ct. 2201 (2011)).

The National Football League Players Association (NFLPA) acts as a union for NFL players and has a subsidiary, Players, Inc., that is responsible for the marketing and licensing of groups of players.  See Parrish v. National Football League Players Association, 2008 WL 3287030 (N.D.Cal., 2008).  Individual players still have the ability to license themselves as individuals, make appearances, make endorsements, and sign autographs, but Player’s Inc. approves licenses involving six or more players. Continue reading →

Staff Writer

The question of allowing patents on isolated human genes may be headed to the Supreme Court.  A recent Federal Circuit ruling, Association for Molecular Pathology v. U.S. Patent and Trademark Office, allows companies to patent specific sequences of separated DNA. Myriad Genetics, one of the defendants in this case, currently holds the patents on isolated BRCA genes.  Mutations of these genes correlate to an increased risk of ovarian and breast cancer and women with these mutations sometimes have a preventative mastectomy. As the law currently stands, Myriad Genetics is the only company allowed to test whether a woman has these mutations and the patient is unable to obtain a second opinion by having the test done by another company.

At first glance, it seems odd that a company might seek to patent an isolated human gene, because patents are not allowed on laws of nature or physical phenomenon. However, Myriad claims that the patent refers only to the isolated DNA segment that has been separated from the native DNA for genetic testing.  This isolated DNA is not found on its own in nature.  The Federal Circuit agreed with Myriad, stating that the patent “cover[s] molecules that are markedly different—have a distinctive chemical identity and nature—from molecules that exist in nature.” 653 F.3d 1329, 1351 (2011). Continue reading →