Case Study Analysis: Lawsuits Against Google and Electronic Arts

This case study analyzes two legal cases: Gmail Litig. v. Google, Inc. and Keller v. Electronic Arts Inc. The Google case examines allegations of wiretapping law violations and data breaches related to Gmail's operation, focusing on issues of user consent and the scope of business practices. The analysis explores the court's ruling on implied consent and the definition of 'ordinary course of business'. The Electronic Arts case involves a right of publicity claim by student-athletes whose likenesses were used in video games. The analysis examines the application of California law, the defense of transformation, and the Lanham Act, and the court's decision on the transformative nature of the work. Both cases are analyzed in light of the potential for data breaches and the impact of the use of likenesses, with the student expressing their disagreement with the court's ruling in each case from a Christian perspective.

Running head: CASE STUDY
CASE STUDY
Name of the Student
Name of the University
Author Note

1CASE STUDY
GMAIL LITIG. V. GOOGLE, INC. (IN RE GOOGLE INC.)
Facts:
In the present case, a multi-district class action has been brought by plaintiffs of
different states, against Google Inc., who is a user of Gmail service provided by Google. The
plaintiffs alleged that the defendant company has breached the provisions of state and federal
anti wiretapping laws to implement the operation of Gmail. The plaintiffs in this complaint
seek damages on behalf of several Gmail and non-Gmail users stating the reason for the
company's continuous interception of emails from several years which happened at the time
of sending or receiving emails by using Gmail service. However, the U.S District Court
denies the suit stating that all the allegations of the plaintiff against Google are not identical
to each other, therefore cannot bring under a single suit.
Issue:
The issue, in this case, was whether Google Inc. was guilty of violating the state and
federal anti wiretapping laws mentioned under ECF No. 38–2. Furthermore, another issue is
that whether the interception over user's moments is falling within the ordinary course of
business of Google Inc in their dealing with Gmail service and whether such definition falls
within the purview of exclusion of the definition of the device mentioned in ECF No. 44 at 6–
13. Another issue to be discussed in this regard is that whether Google has intentionally
violated the provisions of the Wiretap Act in its function of the Gmail system by an interrupt
with the substance of emails which said to be in conveyance to make profiles of Gmail users
and further to provide aimed advertising. Furthermore, it is to be seen in this case whether
such interruption by Google Inc in the user's email amounts to a data breach on the part of
Google or not.

2CASE STUDY
Analysis:
Google Inc. Contended that while using Gmail services, the plaintiffs gave their
consent to the privacy agreement provided by Google to modify the contents such as those
originating from the translations, alterations or from other necessary changes to ensure the
better working of the client's content while using the service and clients (plaintiff's in this
case) by consenting to the privacy policies and terms of Service, unintentionally gave the
company requisite authority to spook over the same. Therefore, the plaintiff has consented to
Google to read their emails as mentioned in ECF No. 44 at 14–16. Google further claimed
that even if the non–Gmail users did not give their consent to the terms of Service or privacy
policies envisaged by google, their implied consent comes into picture while they send or
receive an email from the Gmail user id (Rushe, 2013). The court in the case of United States
v. Van Poyck, held that characteristics of a consent regarding interception can both be explicit
or implied provided it must be actual. Therefore, the court opined the view that if parties have
consented to an interception, then it cannot be held to be a infringement of the Wiretap Act.
18 U.S.C. § 2511(2)(d) (Rahavy, 2003). Furthermore, while giving their opinion about
another contention of Google regarding interception is natural as an ordinary course of
business, the court of law held that few of the acts such as spam control, can be considered as
an activity during the ordinary course of business in respect to an electronic communication
service provider, but the scope of the same is very narrow due to their instrumental
characteristics to the stipulation of email service (Dunbar v. Google, Inc.).
Conclusion:
It can be concluded from the fact of the case that, I cannot agree with the ruling of the
court as this is a case of a data breach and therefore it can be contended as stealing of data
which is a threat to the Christian Perspective. Therefore, the court should consider the facts of

3CASE STUDY
the case by interpreting and understanding the risk factor of public data breach associated
with the use of the service.
Student-Athlete Name & Likeness Licensing Litigation v. Electronic Arts,
Inc.
Facts:
The defendant EA Inc was said to be a developer of video game which has developed
a football game named NCAA Football. The videogame characters were made keeping in
mind the students of Arizona State University and the University of Nebraska, who were
actual football players. Furthermore, the avatar portrayed their actual physique, jersey
number, same position, and name of their state. Keller, the plaintiff was a student of both the
universities and the 2015's game displayed the same video game avatar like him and the 2008
version also portrayed the same, though the number of the jersey did not complement with
the Plaintiff’s because he got it change beforehand. The Plaintiff instituted a putative class
suit in federal court stating that the defendant did not take his permission to use his video
game avatar as well as did not compensate for the same. The plaintiff alleged that the
company has infringed his right of publicity envisaged in the California law.
Issue:
The issue, in this case, was whether the defendant was bound to take permission from
the plaintiff before using his look-alike in the video games repeated times to comply with the
provision of California law.
Analysis:
The California Law contains a defense of transformation which thrives to balance
between the First Amendment Provision of the Law with the right of publicity of the plaintiff.

4CASE STUDY
However, the defense is only applicable where there is a positive assertion about the fact that
the transformation is more than a sheer similarity or imitation. The court looks into the
following factors while determining such cases,
 Whether the similarity is merely materialistic or substantial,
 Whether such work is the sole expression of the defendant,
 Whether the actual work has been dominated by the imitative nature of the work.
 Whether the popularity of the work comes from the fame of the illustrated person,
Therefore, in this case, the court after applying the above-mentioned factors held that the
defendant's act was lack transformative. The defendant however claimed for defense
envisaged in the Lanham Act. The court promoting the decision of In Rogers v. Grimaldi, the
court held that the title of this type of artistic work is less deceptive comparing to the names
of usual commercial merchandises. Therefore, the Lanham Act's defense works less
diligently over these kind of acts. Therefore, after so many differences of opinion, the ninth
circuit court opined the view that EA is liable to get the protection of the First Amendment of
California Law as its work was transformative enough (Charles, 2003).
Conclusion:
I do not agree with the decision of the court as this type of highly identical
transformations can be harmful to the people whose image is being portrayed over the video
game. Furthermore, it is a sin according to the Christian view. Therefore, this video game
maker must ensure sufficient dissimilarity so that video games, especially violent ones do not
cause harm to those people whose figure is displaying thereon.

5CASE STUDY
Reference:
Charles, G. U. E. (2003). Racial Identity, Electoral Structures, and the First Amendment
Right of Association. Calif. L. Rev., 91, 1209.
Dunbar v. Google, Inc., No. 10–CV–00194– MHS, ECF No. 61 (E.D.Tex. May 23, 2011).
Gmail Litig. v. Google, Inc. (In re Google Inc.), Case No. 13-MD-02430-LHK (N.D. Cal.
Feb. 11, 2016)
Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litig.),
724 F.3d 1268, 2013 U.S. App. LEXIS 15649, 107 U.S.P.Q.2D (BNA) 1629, 2013
WL 3928293 (9th Cir. Cal. July 31, 2013)
Rahavy, S. K. (2003). The Federal Wiretap Act: The permissible scope of eavesdropping in
the family home. J. High Tech. L., 2, 87.
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989),
Rushe, D. (2013). Google: don't expect privacy when sending to Gmail. The Guardian.
Retrieved Dec, 19, 2014.
U.S. v. Van Poyck, 77 F.3d 285 (9th Cir. 1996)