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Socially Aware Blog

The Law and Business of Social Media

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Commercial free content. Would you pay to diminish the number of ads that appear on your screen while you surf the Web? Google is testing a service that will allow users to do just that. The service, called Contributor, will give visitors to ten web sites that Google has partnered with the opportunity to pay a monthly fee of between $1 and $3 to avoid being subjected to on-screen promotions. In exchange for forking over the funds, a small portion of which will go to Google, readers of content on sites including Mashable and The Onion will see banners thanking them for their patronage in the spots where on-screen advertisements would otherwise appear. According to the New York Times, this isn’t the first time that the tech giant has tested Internet users’ willingness to pay for content, and it probably won’t be the last.

Flying less-than-friendly skies. The bankruptcy-plagued airline industry is finally turning to its customers’ personal information as a source of potential revenue. Airlines are late to the customer-data-mining party because, compared to traditional retailers, airlines need to track their patrons over a much longer time period to get a sense of their spending habits (most people purchase plane tickets a lot less frequently than they buy, for example, coffee). But, faced with ticket prices that barely cover costs, airlines are turning to tech-savvy global distribution service companies for several years’ worth of a customer’s transactions and information gleaned from patrons’ social media profiles and interactions. The airlines hope the information will allow them to deliver more targeted offers to air travelers, but—for frequent flyers—it poses yet another privacy concern. As if turbulence weren’t enough to worry about?

Status Updates

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  • A saving grace for search results. In the first case since 2007 to address the issue, a California state court judge recently held that Google’s search results are in fact protected by U.S. free speech laws, and that Google is therefore entitled to rank  the results it delivers in response to queries however it determines will be most useful to its users.  The California judge issued the holding in the context of dismissing a lawsuit filed by Louis Martin, the operator of a web site called CoastNews, who claimed Google’s exclusion of his site from search results is biased. The California court categorized Martin’s suit as a “SLAPP” case—a lawsuit intended to intimidate or censor critics. This move by the U.S. court system is in distinct contrast to what’s going on in Europe, where Google’s pervasive Internet presence is at risk of being curtailed as a result of regulators’ investigation into the search engine’s possible violations of antitrust law.
  • Picture perfect captions.  We’ve written about visual recognition software before.  Now Google has gotten into the act.  The company has developed new artificial intelligence software that can automatically produce captions that, according to Google’s research blog, “accurately describe images the first time it sees them.”  The potential practical implications are significant.  A blind person could conceivably click on a photo and have its contents described using voice technology.  The new software might also improve people’s ability to search on Google for photos that they vaguely remember but don’t recall in detail.

Big Data: Big Business, Big Privacy Issues

Posted in Privacy

Big data is now big business.

In recent years, due to the exponential growth of databases (spurred at least in part by social media and cloud storage) and of the capability of technology to undertake data analytics on a massive scale, organisations have started to appreciate the potential hidden value that could be derived from their data.

Indeed, in March 2014, Neelie Kroes (Vice President of the EU Commission responsible for the Digital Agenda) reflected this view when she hailed a “data gold rush… a new industrial revolution… a digital revolution fuelled by big data”.

It’s certainly clear that big data analytics can drive potential significant benefits. Information produced from analytics can help companies to forecast and make better decisions, make savings and efficiencies, and improve agility. However, big data can also produce significant legal risks, in particular, in terms of data privacy and security. In this blog post, we highlight how different data protection authorities around the world are addressing big data and discuss how organisations can best manage their privacy compliance when embarking upon big data projects.

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Monkey Selfie Redux

Posted in Trademark

This is the famous Monkey Selfie.

When we last examined the intellectual property issues raised by a self-portrait taken by a talented female Indonesian crested black macaque—popularly known as the “Monkey Selfie”—we concluded that there was unlikely to be any copyright protection in the work, under either U.S. law or U.K. law.

Following that analysis, the U.S. Copyright Office further clarified its views on the subject.  In its public draft of the third edition of the Compendium of U.S. Copyright Office Practices, the Copyright Office specified in Section 306 (“The Human Authorship Requirement”) that “[t]he Office will not register works produced by nature, animals, or plants. . . .  Examples:  A photograph taken by a monkey.”


Now there is yet another wrinkle in the saga of what may be the world’s most photogenic monkey.

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item).  The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken.  Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate.  But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.

This is the image from the trademark application.

We note that the application is in its very early stages, and has not yet been assigned to an examining attorney.

Having made an impact on copyright law, is the monkey now turning her sights to trademark law? What next? The right of publicity? A patent application? Will any area of intellectual property law be left untouched by this simian shutterbug? Stay tuned.

Status Updates

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  • Pay to play. Attention, marketing professionals: The free ride that Facebook has been giving to advertisers is coming to end. We’ve recently discussed Facebook’s recently ban on “like” gating. Now, inspired by its users’ dissatisfaction with the prevalence of promotional content on the Facebook platform, the social media giant will start lowering the priority of marketers’ unpaid posts in its users’ news feeds next year. To prevent a post from being relegated to a place where it’s unlikely to ever be seen, a company will have to package it in the form of a paid-for ad. What, at first blush, might seem like Facebook fans’ gain and the marketing world’s loss is actually a win-win, according to Brian Boland, a Facebook vice president who oversees marketing of ad products. “An ad maker doesn’t want to serve content to people who don’t want to see those posts,” he told the New York Times. Plus, paid-for ads are easier to track than regular content. The change might nevertheless result in marketers turning more often to Twitter, which doesn’t rank posts. But, with over 1.35 billion monthly active users and ad revenue at $2.96 billion, perhaps Facebook can afford not to care.
  • Car tunes. Uber is adding an intriguing new feature to its popular ride-sharing service – music. It has teamed up with Spotify to enhance the Uber experience by allowing riders to select the tunes they want to hear during the ride. Customers will be able to pause, skip, rewind or shuffle tracks in their playlist. Uber has reportedly already begun to ask its drivers to take the steps necessary to connect their Uber-provided phone to the car’s stereo system, so as to enable riders to access songs through Spotify. This idea fits well with Spotify’s strategy of making alliances to bring its music to customers in a number of different environments. For example, Spotify has made alliances with Ford and Volvo to include its music service in those companies’ vehicles. In any event, may we suggest Billy Ocean’s “Get Out of My Dreams, Get Into My Car” and The Clash’s “Brand New Cadillac” for your Uber playlist? And, by the way, is someone giving thought to potential public performance issues here?
  • Going private. Under the Privacy Act, Americans have a way to challenge the misuse or abuse of their personal information by the federal government – a right that hit the headlines after the disclosure by Edward Snowden of the National Security Agency’s surveillance programs. U.S. citizens also have the right to challenge breaches of information privacy by governments in the European Union. But EU residents don’t have any recourse against the U.S. government under our Privacy Act – an omission that several technology firms say needs to be corrected.  David Drummond, Google’s chief legal officer, recently wrote in a blog post: “Google supports legislation to extend the US Privacy Act to EU citizens. The Obama Administration has already pledged its support for this change and we look forward to working with Congress to try and make this happen.” Indeed, outgoing Attorney General Eric Holder Jr. did indicate support for this change in a speech in Athens last summer. But will there be any legislative action? Privacy and civil liberties advocates are adopting a wait-and-see attitude.

R.I.P.: The Facebook “Like” Gate

Posted in Online Promotions

Do you still “like” me? Companies with Facebook Pages will find themselves asking that question of their followers over the next few weeks, as Facebook brings an end to the popular practice of offering discounts, exclusive content and other incentives in exchange for liking a Page.

Facebook had previously facilitated this exchange by allowing Page operators to reveal certain content only to users who had liked the Page. This practice was known as “like gating.” The exclusive content might have included coupon codes, contest entry forms, voting buttons for polls and other content that would create an incentive for the user to like the Page. Even altruistic incentives have been offered, such as promises by brands to donate a dollar to charity for each like that their Page receives.

Like gating became a popular—and successful—way for companies to build followers for their Facebook Pages. We won’t know exactly how many of the 4.5 billion likes per day received on Facebook were due to like gating, but the number was certainly significant.

The like gate disappeared earlier this month almost as quickly as it had become widespread. Following a 90-day grace period, a new Facebook rule took effect on November 5, 2014, identifying three—and only three—specific actions on Facebook that users could be incentivized to perform. Companies quickly realized that liking a Page was conspicuously absent from that list of actions. (It remains permissible to provide incentives for users to log into a Facebook app, to enter a promotion on a Facebook app’s Page, and to check into a place.)

In a blog post announcing this change, Facebook made clear that companies “must not incentivize people to use social plugins or to like a Page.” Facebook also provided its behind-the-scenes reasoning on the change. Facebook believes that eliminating the practice of like gating will help “ensure quality connections and help businesses reach the people who matter to them” rather than building relationships on Facebook that are based on “artificial incentives.”

Companies will undoubtedly find ways to continue building their presences on Facebook without using the like gate. Indeed, many marketers had already been advising that like gating was quickly becoming an outdated practice, and that the followers generated by like gating were less valuable than followers generated organically.

The next time you log into Facebook, you may find your favorite brand asking you to engage with the brand in a more substantial way, such as by submitting user-generated content, instead of simply liking its Page. Known as “action gating,” this alternative practice is already being touted by marketers as a way to build a more valuable online fan base through more active types of engagement.

The like gate is dead. Long live the action gate.

Status Updates

Posted in Status Updates
  • Laundry time. Make sure you are getting what you’re paying for. That’s good advice in a lot of areas of human endeavor and it’s certainly true of online advertising. We wrote last month about efforts by the online advertising industry to impose standards on how viewable an ad must be.  Now advertisers have a new worry: “domain laundering,” a scheme in which online advertising exchanges represent to advertisers that ads will appear on legitimate sites, but actually place the ads on sites known for pirated content. Clearly, that’s not the environment in which an advertiser wants its message to be located. “This has become increasingly common as sophisticated perpetrators realize they can circumvent the manual, internal checks that many ad platforms have in place,” the senior vice president of corporate development at comScore, a digital analytics company, told the Wall Street Journal.
  • Valuable tweets. Twitter earned $361 million in the last fiscal quarter and has certainly carved out a place on the social media scene. Kurt Wagner of Re/code says this is a perfect time for the company’s leaders to define what Twitter aspires to become in the next few years. Does it plan to try to hit a billion users? (Its current count of active users is about 284 million.) Or is it thinking somewhat less broadly? Twitter starts with a smaller user base than Google or Facebook, but it provides an immediacy that distinguishes Twitter from many other major networks. According to Wagner, this is also a good time for Twitter to explain to advertisers what its true value is. One key may be for Twitter to find a way to count the people who don’t have accounts but still visit its site or see tweets on television.
  • Cops and robbers. There’s been a lot of discussion about law enforcement and social media: Are the cops keeping up with techniques that are being used by criminals? And are they making sure to stay within the framework of Supreme Court decisions that protect the rights of suspects? A new study from LexisNexis isn’t especially encouraging. It shows that 80 percent of law enforcement agencies in the United States use social media to catch criminals but that 52 percent of them don’t have a formal policy regarding the use of social media. Only 33 percent of the agencies have an assigned social media monitor, while the others leave such monitoring to individual officers. The study solicited answers from nearly 500 local, state and federal enforcement agencies.

Status Updates

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  • That’s a lot of latte. It turns out that Starbucks—not a company in the mobile payments business—was the first company to make in-person payments by mobile phone mainstream. According to recent statements by the coffee giant’s representatives, Starbucks shops handled seven million mobile payments weekly last year, accounting for a whopping 90% of all mobile payments to U.S. retailers in 2013. A Starbucks app available on Apple iOS and Android devices allows coffee aficionados to maintain, on their phones, a prepaid Starbucks card just like physical Starbucks payment card that the company’s fans have been carrying in their wallets for years. The coffee giant’s customers’ familiarity with a prepaid-card system likely contributed to the early popularity of mobile payments at Starbucks stores.
  • Social notworking. Workplace-related chatter on anonymous messaging apps like Whisper and Secret has inspired the creation of Canary—an anonymous messaging app that will feature threads authored exclusively by the employees of a particular company. The threads will be public, but only verified employees of a company that is the subject of a post will be able to contribute to that post. To make sure a poster is a bona fide employee of a company he or she is writing about, Canary will require the poster to provide his or her work email address. In order to contribute to a thread dedicated to gossip about the goings on at, say, General Motors’ offices, a Canary user would have to provide his or her GM work email address. Although Canary’s creators insist that its users’ anonymity will be protected, the pundits are skeptical about social media users’ willingness to gossip publicly about their employers. In any event, employers – you’ve been warned.
  • A picture’s worth 1,000 text messages. A lot of companies make Facebook or Twitter the center of their social media campaigns, but Katrina Craigwell, General Electric’s head of digital programming, has chosen to portray GE’s products in uniquely visual ways by focusing on GE’s Instagram and YouTube accounts. As a result of her efforts, a series of videos about GE products that might seem unlikely to generate clicks—we’re talking hydrophobic coatings, here, folks—actually drew eight million viewers. The secret: cutting-edge photography and GE scientists’ relatively simple explanations of the technology. Craigwell recently told Tech Republic, “If I give you a white paper PDF on a GE jet engine, your eyes might glaze over although it’s a beautiful piece of machinery. If I show you that engine rigged up in our test cell or on the wings of a Dreamliner plane, and it’s beautiful, it starts to get your attention.” OK, but can that hydrophobic coatings video truly compete with those photos of cute kittens in my Instagram feed?

Ninth Circuit to Reconsider the Curious Copyright Case Requiring YouTube to Take Down All Copies of Anti-Islamic Film

Posted in Copyright

Earlier this year, Socially Aware noted a peculiar decision out of the Ninth Circuit Court of Appeals holding that an actress owns a copyright interest in her five-second performance in a film and thus could demand the removal of all copies of the film posted to YouTube.

The actress, Cindy Lee Garcia, claims that she had been duped into appearing in the anti-Islamic film, called The Innocence of Muslims.

After the film went viral, Garcia received death threats for her involvement in the project.  While everyone generally sympathizes with her predicament, the Ninth Circuit’s decision creates serious issues for both the entertainment community and online distributors of user-generated content, two industries that seldom share common cause.

Shortly after the three-judge panel of the Ninth Circuit issued its decision, Google sought en banc review by the Ninth Circuit. In “friends of the court” briefs, a broad spectrum of interested parties such as Facebook, Netflix, Pinterest, Twitter, Yahoo!, National Public Radio, the Los Angeles Times, the Washington Post, and the documentary filmmaker Morgan Spurlock of “Super Size Me” fame joined with Google.

Now, eight months after Google first sought en banc review, the Ninth Circuit has agreed to rehear the case. In a procedure unique to the Ninth Circuit, the case will be heard by 11 of its 29 active judges, rather than the full court. The hearing is currently scheduled to take place during the week of December 15, 2014 in Pasadena, California. A decision will likely be issued sometime in early 2015.

Status Updates

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  • Tale of the tape. Remember the 1980s? Back then, watching a movie on demand meant visiting your local video store and renting the video tape version of the film that you wanted to watch (assuming it was available). During that era, Congress passed – and President Reagan signed into law – the Video Privacy Protection Act (VPPA), which generally prohibits any “video tape service provider” from disclosing, outside of the ordinary course of business, information regarding a customer’s rental and purchase of video tapes and similar audio visual materials. The law actually stems from the controversial, and failed, 1987 nomination of Robert Bork to the U.S. Supreme Court, when Bork’s opponents got hold of his video-rental records. As the video distribution industry has evolved, issues have arisen as to the application of the VPPA in this new era. Redbox is famous for its automated self-service kiosks at which customers can rent DVDs and Blu-ray disks; to handle customer inquiries, however, Redbox uses a third-party service provider, Stream Global Services (SGS). So that SGS can fulfill its obligations, Redbox makes available its customer records to the service provider. Does such disclosure violate the VPPA, or does it fall within the VPPA’s exception for disclosures made in the “ordinary course of business”? Several consumers sued Redbox because of SGS’s access to their rental information, but the U.S. Court of Appeals for the 7th Circuit recently found that Redbox is in the clear. The court noted that, in enacting the VPPA, “Congress contemplated customer service as part and parcel of the ordinary rental experience. That Redbox has replaced most live customer service interactions with a computer interface does not change this.” Nevertheless, if your company is in the business of distributing videos online, you will want to pay attention to potential VPPA issues; although narrowly focused, it’s a restrictive privacy law that can become a trap for the unwary.
  • All politics is social. While the 2014 mid-year election has concluded, the involvement of social networks in politics is far from over. A study by the Pew Research Center reveals that Americans are using their mobile phones, apps, and social media far more than ever before to keep up with politicians and elections. For example, whereas only six percent of registered voters reported following politicians on social media in 2010, that number is now up to 16 percent. Both Facebook and Twitter say they embrace this type of use of their networks and, indeed, they see part of their mission as fostering an increase in civic involvement and voter participation. There doesn’t seem to be any association between political party and the use of social media: CNN reports that Republicans and Democrats participate in approximately equal numbers.
  • Bad trip. A new report indicates that, in the United Kingdom, defamation cases based on comments in social media increased dramatically in the past year, from six to 26 – a 333% increase. Among the reasons cited for the surge in defamation complaints: some people’s failure to understand that what they post to social media platforms such as Twitter can be actionable, and some defendants’ concern that their reputation can suffer permanent damage because the Internet permits defamatory statements to be spread quickly and remain online. Not all these cases succeed, of course; for example, the owners of a Scottish bed and breakfast operation have been unsuccessful in their lawsuit against the travel website TripAdvisor over allegedly defamatory reviews hosted on the site. Earlier this year, a Scottish court refused to compel TripAdvisor to disclose who had written and posted these reviews, noting that the court lacked the “worldwide jurisdiction” needed to require U.S.-based TripAdvisor to produce the requested information. Of course, going forward, Europe’s controversial recognition of the right to be forgotten may offer an alternative means for dealing with allegedly defamatory posts.