These kinds of disclaimers, disassociating the tweets from the people who retweet them, are common. The Twitter bio belonging to Brian Stelter of the New York Times (@brianstelter) notes, “RT & links aren’t endorsements.”

A Social Media Policy Addressing RTs and Linking

But for some, those disclaimers are not enough.  Last fall, the Associated Press introduced an updated social media policy for its reporters and editors.  As recently reported in Yahoo! News, the AP memo advised reporters and editors that “Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.” The guidelines note, “[W]e can judiciously retweet opinionated material if we make clear we’re simply reporting it.”

Members of the media might want to be careful, however, that statements like “No comment” or “without comment” before tweets do not take on meanings of their own. Often, retweeting something “without comment” can indicate an unwillingness to comment due to an either enthusiastic support for of disapproval of the content of the original tweet.

Take, for instance, this example, where a user named @ProgressiveMich, whose bio indicates that he (or she) is against corporate money and for progressive politics for Michigan, retweeted “without comment” a tweet by conservative political commentator Dick Morris (@DickMorrisTweet) that said, “To gain the younger vote I think Republican candidates need to pick up Cain’s 9-9-9 plan.” In retweeting “without comment,” @ProgressiveMich might be saying (who knows?) that the content of the tweet is not worth commenting on. Rather than using “without comment” to avoid expressing an opinion, the retweet-er is in fact expressing an opinion.

A Broader Perspective

This may be just the application of an old-school standard to a new medium. Just because you throw up a vanilla disclaimer of “nonendorsement” on your website or in the fine print, that may not cut it as effectively communicating nonendorsement.

In consumer protection law, this is the analogous problem with buried, “fine print” legal disclaimers, which have generated a whole rash of regulatory responses requiring “clear and conspicuous” disclosures.  So, for example, California’s recently amended security breach notification law requires disclosures be made via “conspicuous posting” of breach information “written in plain language”.

Various state Attorneys General have initiated legal actions against consumer websites, magazines and other subscription-type services, claiming deceptive practices from insufficient disclosure of billing practices, particularly automatic credit card renewal billing of subscriptions and other service purchases. American Journalism Review reported in 2002 on Florida’s Attorney General looking into Time Inc.’s re-enrollment practices that often forced subscribers to re-subscribe without their knowledge.

And perhaps most directly on point, the Federal Trade Commission (FTC) last year issued extensive rules requiring more prominent disclosures of commercial endorsements and affiliations by bloggers and other social media endorsers of commercial products.  The FTC’s blogger rules make clear the Commission’s view that the inadequacy of prior disclosures wasn’t limited to misleading or insufficient disclosure statements, but equally so the common practice of burying disclosures.

Big Pharma is quite familiar with this problem, which is why you find such seemingly awkward disclaimers (i.e. taking this drug may put you at risk of death!”) blithely stated by wistful lovers at the ends of Viagra and other sexual performance drug ads.  The US Food and Drug Administration requires “clear, conspicuous and neutral” presentation of risk information in pharmaceutical advertisements. And not leaving things to chance, the FDA has published highly detailed commentary on these practices, with examples such as this:

A seven-page sales ad devotes the first six pages to effectiveness claims, which are prominently presented with colorful graphics, abundant white space, and large, colorful headers. Three of these pages also include a footnote referring readers to “Important Information on page 7.” The seventh page summarizes some risk information from the PI in single-spaced paragraph format without headers or other presentation elements to emphasize to the reader that it is important risk information.  Such a presentation creates problems regarding the adequate presentation of risk. The important risk information about the drug should instead be integrated into the piece and presented with similar prominence to the effectiveness claims.

Back to RTs

Does a catch-all “RTs and Links aren’t endorsements” (per Brian Stelter of the New York Times) really make the case?  In my post last year about the FTC blogger guidelines (“FTC Blogger Rules: Why Not Disclose Advertising?“), I noted that the guidelines limit disclosure requirements to cases where the sponsorship relationship is not “reasonably expected by the audience.”  And perhaps followers on Twitter should really know better than to assume a RT is an endorsement.  But in that sense, the AP’s guidelines are quite reasonable, especially for professional writers for whom care is assumed to have been taken with choice words.

Kate Tummarello, a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly, contributed to this post.

Despite the fact that this practice is officially frowned upon in the Federal Trade Commission’s 2009 endorsement guidelines, companies will often engage paid individuals – either employees on the payroll or outside bloggers who receive compensation in the form of a free sample – to post positive reviews online, including to places like Twitter, personal blogs, or online public forums without identifying the connection between the commenter and the product being commented on.

The FTC’s endorsement guidelines seek (among other things) to ensure that unbiased positive reviews online can be considered credible, while also ensuring that positive reviews that are partially the result of some sort of compensation be acknowledged as such. The FTC’s guidelines encourage not just that bloggers acknowledge compensation, but also that the companies offering the promotion notify bloggers of the guidelines and then ensure that the guidelines are followed.

The New York Times reported last summer on a settlement reached between the FTC and Reverb Communications.  According to the report, employees of Reverb, a public relations firm, were posting positive iTunes Store reviews about Reverb client products. “[Reverb] engaged in deceptive advertising by having its employees write and post positive reviews of clients’ games in the Apple iTunes Store, without disclosing that they were being paid to do so,” according to the article.  The FTC’s settlement with Reverb reportedly included an agreement to remove all inadequately identified iTunes Store reviews, but no monetary penalties or admission of illegal activity.

Also last year, as reported in a post on the Citizen Media Law Project blog, clothing retailer Ann Taylor LOFT sent invitations to bloggers, offering a “fall fashion preview” and “special gift” to bloggers who agreed to write about the event.  The FTC commenced an enforcement proceeding against Ann Taylor LOFT for violation of the blogger guidelines, but ultimately chose not to pursue action, instead noting that the company had incorporated a written policy prohibiting similar conduct in the future.

K&L Gates’ blog on technology, media and technology, ”TMT Law Watch”,  reported earlier this year on another FTC enforcement.  As reported, a musical instruction company called Legacy paid “Review Ad Affiliates” to give positive reviews for site’s musical instruction services.  Those affiliates subsequently failed to provide adequate notice of their material connection with the promoter. “Affiliates received substantial commissions (20-45%) on sales of each product resulting from a referral,” TMT Law Watch reported.  Although Legacy required affiliates to sign a contract committing to follow FTC guidelines, there was no monitoring system in place to ensure that the guidelines were followed.  In its enforcement complaint the FTC stated “that the Affiliates’ reviews were false and misleading, that the failure to disclose the financial relationship was a deceptive practice, and that these acts and practices constituted unfair or deceptive acts or trade practices in violation of Section 5(a) of the FTC Act,” according to the post.

Under its administrative settlement with the FTC, Legacy agreed to monitor and conduct monthly reviews of 100 of its “Review Ad Affiliates,” including the top 50 review producers and a random sampling of 50 more affiliates. Legacy must also institute a system through which payment will be stopped to any affiliate that does not adequately disclose its material connection to Legacy when posting reviews. In addition to a civil penalty of $250,000 and a requirement to notify its employees of the settlement, the Legacy must carry out these reviews of its affiliates and report them to the FTC for the next 20 years.

Some companies have taken measures to preemptively ensure compliance with the FTC guidelines. For example, AdAge reported earlier this month on an undertaking by the social media influence ranking site Klout to provide free products to people with significant social media influence. Aan ccording to AdAge, the initiative would provide products, or “Perks,” to those with large influence on social media outlets. “Klout addresses the FTC rules by sending a card along with the ‘Perk’ that states that recipients aren’t required to do anything at all,” AdAge reported, “but they should disclose that they’ve received a sample if they decide to write about it.”

A question is whether this kind of passing the buck to bloggers (“you’re on notice that you shouldn’t do anything we wouldn’t do”) really complies with the guidelines, much less the spirit of the guidelines.  The Legacy case raises the specter of enforcement proceedings against companies for failing to adequately monitor compliance.  But generally, evidence of compliance should be able to be found in actual resulting conduct. As Forbes noted last year, it can be difficult to measure the impact of the guidelines when the intent isn’t clear. An FTC director was quoted by Forbes, “Our goal is not to bring enforcement actions. [Our goal is] to help people be educated so we don’t have to bring enforcement actions.”

***

Kate Tummarello, a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly, contributed to this post.

By definition, citizen journalism’s inherent difference from the traditional editorial process is the dispersion of responsibility for editorial choice.  Nonetheless, “trustiness” in journalism is a concept still heavily dependent on a reporter’s or editor’s reputation.  Is the New York Times trusted because it’s trustworthy?  Or is it trustworthy because it’s trusted?

The “Generated By Users” journalism blog recently reported the results of its reader poll, “Do you TRUST user generated content in news?”

[O]verall we like [user-generated content] but remain skeptical and need to know that it is trustworthy and adding value and perspective to reports. In an ever more connected world we can rely on UGC for immediate breaking news, but we want experienced journalists to sum up the day; if that requires using some UGC then we are fine with that, but it must be combined with original professional content.

Crowd-sourced citizen journalism attempts to bridge the gap between the historical (back to 2003 or so) understanding of “citizen journalism” and more recent efforts to create “virtual” news operations.  So, for example, in 2007 the US State Department’s blog America.gov wrote thoughtfully about the movement of established news organizations – the BBC, CNN and Le Monde were favorably cited – to integrate video, blogging and other raw reporting coverage of breaking news events into regular news reporting.  This trend had “becom[e] more of a dialogue between the providers and receivers of information, rather than an imposition of opinions and perspectives by an elite caste.”

Still, reporting is being collated (an unfair characterization?) by established media into seemingly traditional reporting.  Or, better yet, the explosion of number, variety and depth of sources of news could make the producing of established reporting – digesting, analyzing, summarizing and storytelling – that much better-sourced in the hands of writers, reporters and editors who know how to bring it all together.

Crowd-sourced journalism is not without downsides.  From America.gov’s 2007 report:

On the negative side, the Internet has opened up extraordinary new possibilities for the widespread and sometimes dangerous manipulation of information, which is difficult, if not impossible, to stem.  This phenomenon will increasingly place a heavy responsibility on professional journalists to maintain high standards of fact-checking, honesty, and objectivity. Editors are already spending enormous amounts of time verifying and authenticating user-generated pictures and text, and this will only become a more time-consuming part of their jobs. Blog posts and comments require careful and regular scrutiny.

It is true that the explosion of sources of information – just like the avalanche of the raw information itself via wide, public availability of data – makes the jobs of journalists more complex, but that may not be all that much of a change.  Reporting has always required judgment calls by reporters on the quality of and proper weight to be given to sources.  The difference now is the number of sources of where information is coming from, and who has the ability to monitor how it is used.

If a structural problem for “citizen journalism” is an inability to generate consistency in quality – “editorial standards” – why not remedy that problem with some of the same technology that makes citizen journalism possible in the first place?

That is the approach of a number of projects discussed in a recent Columbia Journalism Review article, including “Citizenside”, “Digital Journal” and “NowPublic”.  These sites use concepts from online gaming, including point tallies, rankings and accompanying cash and non-cash rewards.

Borrowing these techniques from online gaming may prove advantageous to reward those who produce quality content.  A recent panel during Washington, DC’s “Digital Capital Week” (DC Week), on “The Future of Publishing”, featured Washington, DC-based NewsIt, a self-described “mobile sharing network for creating and sharing news”.  Like its competitors discussed by CJR, NewsIt espouses the “gamification” of news, using math to rank “top citizen correspondents”.  The technology is built on an algorithm, and the distinguishing characteristic seems to be the strength (or weakness) of that particular algorithm to discern quality reporting.

Such an algorithm necessarily chooses different factors from the comparable calculi of competing services, and then weights those factors in whatever unique way chosen by its proponent.  The idea is terrific for setting up predictability for news sourcing, though it seems also vulnerable to its own being “gamed” (irony not intended) by users who can figure out the system.  Of course, that, too, is hardly news, as demonstrated by other algorithm-based services like Google Search, constantly tweaking its formula to stay ahead of the gamers.

Kate Tummarello, a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly, contributed to this post.

Ebbole claimed that Demented Needle owner Paul Averette had been telling customers and others that Ebbole’s shop used equipment infected with diseases such as Hepatitis C and HIV, claiming also that Averette had told the world that Ebbole had infected herself.

Ebbole also reported that Demented Needle boasted at least two defamatory objects in the parlor: a poster displaying an image of one of Ebbole’s tattoos, meant to discourage customers from visiting Ebbole’s shop, and a body cast decorated in demonic symbols and used to model Demented Needle’s apparel.  Ebbole claimed that Averette told customers the body cast was supposed to be Ebbole.

In his defense, Demented Needle owner Averette claimed that the poster was not defamatory because it was protected commercial speech and the body cast was not recognizable as Ebbole. The court held that Averette did not present adequate evidence to prove that the poster was protected speech. The court also held that, because Averette routinely told customers that the body cast was supposed to represent Ebbole, his speech was defamatory.

Ebbole also claimed that a co-defendant of Ebbole had defamed her through a MySpace posting, which included a video of Ebbole performing a body piercing.

The MySpace post read:

I came across this video during my recent health inspection of all [things]. I was certified to do microdermal anchoring in October of 2008…. [Ebbole's method] is disrespectful to what I do and what I love … allegedly. I ask you, people of the interweb … what should I do about it?

FYI: [Ebbole's method] is NOT the method I use or would suggest to be used for any implant procedure.

The post was followed by comments from third party MySpace users, some of which contained threatening and defamatory language.

In his commentary about the case, Eric Goldman questioned the court’s malice finding: “The court ruled the plaintiff was a public figure, so the plaintiff [would have] had to show defendants’ malice to support the defamation claim.  I am especially interested in its application to [the co-defendant’s] MySpace posting.” Goldman then questioned evidence of malice based on the MySpace posting.

Goldman discusses the specifics of the MySpace posting, wondering who had originally posted the video and noting that the statements that seemed to be most defamatory were made by third party commentators, not any defendant.  And in any event, Goldman thinks defendants’ MySpace comments were clearly opinion, not factual.  “I’m failing to see anything defamatory in this statement at all,” he concludes.

Goldman then discusses the case in light of 47 USC 230, the Communications Decency Act of 1996 (CDA). Section 230 of the CDA states that no user of an interactive web service can be held responsible for the postings or another user.  Goldman argues that this principle should have applied here. “Inferring malice from a site operator’s failure to remove third party comments should be preempted by [CDA Section 230] because it treats the operator as a publisher/speaker of those comments,” he writes.

“My vision for our city is to become the technology capital of the world….  We want to attract and retain leaders in the fields of e-government, e-commerce, e-business, and technology,” said then-mayor Anthony Williams.

New E-Conomy Transformation Act

The District’s final rulemaking for the Act, setting out terms of qualification for the Act’s various tax benefits to qualifying businesses, can be found here.

Among many other tax incentives, the Act granted tax benefits to “Qualified High Technology Companies” (QHTCs), those DC-based, for-profit organizations that make most of their revenue from the sale of products and services related to information technology.  The category includes a large list of broadly defined “high technology activities”, for example (from the Act):

“Website design, maintenance, hosting, or operation; Internet-related training, consulting, advertising, or promotion services; the development, rental, lease, or sale of Internet-related applications, connectivity, or digital content; or products and services that may be considered e-commerce”.

Other qualifying activities include:

“Internet-related services”, “Information and communication technologies”, “operating and application software”, “Advanced materials and processing technologies”, and “Engineering, production, biotechnology and defense technologies that involve knowledge-based control systems and architectures”.

DC Tax Credits

QHTCs can claim tax benefits related to the “high technology” aspects of their businesses.  Those aspects include employees, and specifically “disadvantaged” employees of these companies, defined by the Act as District of Columbia residents who currently receive or have recently received benefits under the District’s “Temporary Assistance for Needy Families” program or who were released from prison within 24 months before gaining employment at the company.  Also included are employees who qualify for the District’s “Welfare to Work Tax Credit” or “Work Opportunity Tax Credit”, background on both of which can be found here.

QHTCs may claim tax credits for training programs completed by disadvantaged employees, including programs at accredited colleges and universities and programs conducted by nonprofit organizations.  These credits are limited to $20,000 per qualifying employee during the first 18 months of employment.

QHTCs may also claim tax credits for relocation expenses provided for employees, not limited to disadvantaged employees.  The amount of the credits varies from $5,000 to $7,500, depending on whether the employee relocates his or her residence to the District in addition to employment with the QHTC.

In addition, QHTCs may claim tax credits for up to 50% of wages paid to disadvantaged employees, capped at $15,000 per year per employee.  Similar credits may be claimed by QHTCs for up to 10% of wages paid to non-“disadvantaged” employees, capped at $15,000 per year per employee.  The credits are limited to the first 24 months of employment.

Most of the above credits apply only for employees working at least 35 hours per week, may be taken only after the relevant employee(s) have worked at least 6 months with the company, and require at least 2 employees for eligibility.   In addition, the above credits are not available with respect to employees who are “key employees”, including owners of the business (or relatives) or members of a company’s board of directors.

Reduced Corporate and Franchise Taxes

Another benefit for QHTCs is a reduced DC corporate franchise tax rate of 6%, and complete exemption from the corporate franchise tax for the first 5 years of business for QHTCs located in certain defined geographic areas known as “High Technology Development Zones” (listed geographically in this DC Government publication).   QHTCs that are LLCs and other non-corporations are exempted permanently from the District’s unincorporated franchise tax.  QHTCs also need not include capital gains from sales of capital assets in gross income for purposes of DC’s corporate income tax.

Exemption from DC Sales Taxes

Lastly, QHTCs are exempt from most sales taxes, including most purchases of computer software and hardware of all kinds.

Additional Materials and Applying for Credits

Businesses that wish to qualify for QHTC status and applicable credits and reduced taxes should review and complete the information and forms available through the District’s Office of Tax and Revenue, particularly Publication 399, available here.

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.  Andrew Mirsky of Mirsky & Company contributed to this post.

Trademark protections give their owners the right of exclusive use to the trademark, but only when used “as a trademark”.  If the use of the mark is for any purpose not a “trademark use”, that use does not fall within the exclusive rights of the trademark owner.

The Good and The Ugly – Trademark Use Examples

Some examples illustrate the point:

1. A magazine story features a photograph of a woman wearing a tee-shirt with picture of a Marvel Comics character.  The story is about the woman and her battle with a difficult disease, having nothing to do with the Marvel trademark.  The trademark is clearly incidental to the photo and to the story.

2. A cash-for-gold jewelry dealer in Toronto (featured in a New Yorker profile this past week) promotes his business through television commercials featuring the character “Cashman” dressed in a red cape and pair of blue tights and dollar signs on his chest.  “Cashman” bursts out of telephone booths to frighten desperate Torontonians into parting with their family heirlooms.  The owner of the Superman trademarks felt compelled to ask – nicely at first, not so nicely in the subsequent lawsuit – that “Cashman” stop trading on the Superman goodwill.

Nominative or Fair Use of Trademarks

What I referred to above as “not a trademark use” is also sometimes called “nominative” use, and sometimes “fair use”. 

One commentator cites “nominative” trademark use in a fictional work to describe or identify products or services, including “shopping for books at Walmart”, “playing a Playstation game”, and “wearing Oakley sunglasses.” As I previously wrote,

In (hopefully) plain English, the defendant makes no argument to counter a trademark owner’s typical claims of trademark infringement such as likelihood of confusion or dilution of trademark and so forth.  Instead, the use of the trademark is permitted as a fair use since the use simply (and only) identifies the trademark.

There, I was specifically commenting on a court decision involving Toyota and a broker of Lexus cars, where the broker-defendant had (without Toyota’s permission, obviously) used Toyota’s name in its website domains to promote its business.  In that case, Toyota did not dispute the legality of the brokerage’s business nor its authority to broker and sell Lexus vehicles.  The Lexus auto brokerage could therefore successfully argue that use of the “Lexus” was necessary to identify the product being sold.

No Endorsement or Sponsorship – Express or Implied – by Trademark Owner

Critical, also, to a claim that a use of a trademark is “not a trademark use” is lack of a statement – implied or express – of endorsement by the trademark owner.  This goes back to the most common ground for a claim of trademark infringement, namely likelihood of confusion as to the source of the goods or services being promoted.  The ultimate value of trademark is the association of a logo, brand, product or service with a particular individual or company owner.  The absence of that association in a third party’s use of a trademark – “Oh Lord, won’t you buy me … a Mercedes Benz / My friends all drive Porsches, I must make amends” – (see Joplin, Janis) undercuts an infringement case while supporting a “nominative” use argument.

There’s talk out there about being able to use HTML5 to get around Apple’s App Store ban on charging for in-app purchases.  In other words (I think), somehow HTML5 allows content producers to get around this problem by making apps (and other things) downloadable directly through web browsers.  So … how is it that HTML5 allows getting around this issue?

Some background: Apple announced a policy change earlier this year, specifically in Section 11.14 of its App Store guidelines, prohibiting charging fees for in-app sales of content:

Apps can read or play approved content (specifically magazines, newspapers, books, audio, music, and video) that is subscribed to or purchased outside of the app, as long as there is no button or external link in the app to purchase the approved content. Apple will not receive any portion of the revenues for approved content that is subscribed to or purchased outside of the app.

(See Wired’s discussion of these changes here).  “In-app sales” means just that: Sales or subscriptions for content or services from within an app, typically via use of external links taking a user to a purchase screen on the publisher’s website.  Apple takes a cut of revenues from subscription sales, but only for in-app sales.  Publishers had been directing traffic for premium services via links – within their apps – to the publisher’s transactional pages outside of the apps.  Apple now takes the position that any such transactional sales traffic originating from within the app remains an “in-app” sale.

My question to Steininger involved understanding the growing use of HTML5 as a method – intended or not – to circumvent this restriction.  But first I wanted to understand what exactly was “restricted” by this restriction.

Used to be – and perhaps often still is – that Apple could enforce this ban through its control of the apps themselves: In-app purchases of premium services and content simply couldn’t be made other than through additional access through the App Store.  Further, mobile platforms didn’t support any ability to download, install, and run a fully loaded application that was self-contained.  That was the state of technology until somewhat recently.

So first question … why (or how) was that so?  Or in other words, what capability does Apple’s App Store make possible that – previously – browsers by themselves could not do?

Further background: Through Apple’s open source Webkit project, the mobile browsers Safari and later Chromium were developed to offer application cache.  Or as Steininger put it, “when you load the app once, all the files necessary are going to be in a special place on your computer” – device-based local storage, permitting interactive and engaging user interface without needing any page loads.

“Rather than buying an app in the app store, you just go to a URL [READ: not Apple’s App Store] and you’ve got an app ready to go.  For example, once you load [a book] on the iPad, you’re good to go if you lose connection – even if you close the browser, reboot the iPad and go to the same URL without a connection.”

And so that is what the Financial Times recently did.  As MacWorld reported in June,

In recent months, [the FT has] been directing its subscribers to an iOS-specific, HTML5-based Web app that it’s developed. The Web app provides an iOS-like interface, with the ability to tap on articles to view them, adjust text sizes, and even share content via email, Twitter, and Facebook. The publication is also making video content available in its app, and it even prompts users to place a shortcut on their Home screen; that allows the app to run full-screen without Safari’s interface. And, of course, content can be locked down to just subscribers and registered users.

What changed recently?  HTML5, with its (now) robust ability to “build interactive engaging UI without needing any page load” – as Steininger described it – using JavaScript in its now revitalized (or vitalize) application-building fullest form.  As Steininger explained, “Now … the browser in effect replaces the platform.  Or the browser IS the platform.”

Second question, what does it mean to say – and what significance – that the browser supplants the platform, or that a browser now facilitates local storage on the device?  “No longer iOS, Android, etc.  The [WebKit-based] browser is the platform:

• Storing all necessary files needed to run the application in “application cache”
• Storing arbitrary data off-line – there is no “local storage”, “webSQL” and other less widely implemented storage mechanism like indexdb.

What does this do for the FT or for Amazon?  Users technically don’t need to go to Apple’s App Store to download an app, buy subscriptions, buy premium content and so forth.  And publishers aren’t therefore limited in any way by Apple’s subscription rules, or revenue sharing.  And if that much is true, as MacWorld noted, Apple cannot claim any interest in subscriber data, the big plumb for many publishers.

This raises obvious questions, not the least of which is how has Apple reacted to the move by Amazon and others away from the App Store?  How have other major publishers reacted, and what should we expect to see?  Answers to these questions may be more nuanced than might seem warranted at first glance.  More on that separately.

The court’s opinion denying the preliminary injunction can be viewed here.  The preliminary injunction was denied on the grounds that the plaintiff was unable to show that its case was likely to succeed in court – the standard required to obtain a preliminary injunction.  (To be clear, inability to show “likely to succeed” does not mean “likely not to succeed”.  It is simply that the courts require a high threshold for a process involving a shortcut to a judgment where the plaintiff would be spared from actually arguing its full case before getting any remedy.)  According to the ruling, the Pennsylvania operation it remained an undecided issue of fact whether the Pennsylvania operation had made continued and exclusive use of the name “Field of Screams” in the Maryland market since before the Maryland operation was started in 2002.

This point was of course significant for a trademark case seeking an injunction, even a preliminary one, since the Pennsylvania claim of trademark exclusivity would be subject to challenge by a party claiming prior use.

As some additional background, it should be noted that neither litigant owns any federally registered trademark.  The Pennsylvania plaintiff is therefore claiming rights of trademark for an unregistered trademark under federal and state common law.  Many of the arguments of trademark validity by a plaintiff seeking trademark enforcement – in particular, brand distinctiveness – would generally be unnecessary, where the federal Lanham Act gives registered trademark owners a presumption of validity which a defendant challenger must overcome.

The ruling also raised doubts about the ability of the Pennsylvania operation to prove its national recognition, explaining that intermittent appearances on national media and in industry media were not enough to prove the potential for confusion among consumers. Additionally, the ruling expressed doubts regarding the ability of the Maryland “Field of Screams” to impact the business of the Pennsylvania “Field of Screams,” because there was evidence indicating that very few of the customers of the Pennsylvania operation came from the Maryland operation’s market.

On the other hand, the court denied the Maryland house’s motion to dismiss the case, and in doing so rejecting at least two basic trademark arguments by the Maryland defendants.  The first involved intent: although Maryland’s “Field of Screams” may not have intended to mislead anyone in using the same name as Pennsylvania’s haunted mansion, the Maryland proprietors could still be guilty of infringement. The court also rejected an argument that the difference in quality between the two operations undercut the plaintiff’s a trademark claim.

Finally, the court noted that the distinctiveness of the name “Field of Screams” and its associations, while perhaps subject to permitted use by the Maryland operation due to prior use, may still be strong enough to be recognized in the operation’s home market of Pennsylvania.

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.  Andrew Mirsky of Mirsky & Company contributed to this post.

According to Franken’s bill summary, current law prevents disclosure of user location during telephone calls without user consent. Currently, no similar legislation protects user location when a user accesses information through a mobile web browser or mobile application. Franken claims that his bill will close loopholes in the Electronic Communications Privacy Act that allow for this distinction.

If S. 1223 passes, companies will be required to obtain permission not only to collect mobile user location information but also to share that information with third parties. Additionally, the bill seeks to put in place measures to prevent stalking through location information.

As of this writing, Franken’s bill has been assigned to the Senate Judiciary Committee and is being cosponsored by Sens. Blumenthal, Coons, Durbin, Menendez, and Sanders.

Original Post (published 9/8/2011)

When was the last time you read a license agreement after installing software or downloading an app on your smartphone? If you’re like most people, the answer is probably never.

According to some estimates, fewer than 8 percent of us actually read the entirety of those agreements, despite rising concerns about digital privacy and data collection. This past June, for example, Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) introduced legislation entitled the Location Privacy Protection Act of 2011, which, if enacted, would require mobile device users to consent before application providers and other companies could obtain location information of those users.

As users are becoming more concerned about digital privacy but less likely to read the legal agreements touching on their privacy, private companies are finding new ways to approach this digital divide.

The New York Times reported earlier this month on PrivacyChoice, a company that aims to do just that. One way it is doing this is its Mobile Policymaker, a feature that allows developers (in PrivacyChoice’s words) to “build a better policy in less than ten minutes,” reducing license agreements and privacy policies into bite-sized, digestible sentences, and forever replacing the multi-page, small-font, legal-intensive agreement.

PrivacyChoice charges a $40 annual subscription fee for its Mobile Policymaker, but the company is currently offering the service for free as a promotion for early adopters.

According to its website, PrivacyChoice also offers tools for web users. For no charge, you can find out which companies are collecting your information, see how those companies target ads based on online content you consume, opt-out of ad targeting and more.

All of this begs the question of what purpose legal agreements and policies have where the terms are the mobile app industry’s equivalent to insurance boilerplate.  Imcomprehensibility may be a lesser evil than the problem known in contract law as “adhesion”.  Transparency is nice, but contracts that are nonnegotiable, waive many common consumer rights and grant users the limited recourse of legal action in far-away places do little to reflect privacy principles of user “choice”, short of simply not using the application or service.

And that becomes a true “choice” when the marketplace offers competitive options not only on products but also on rights such as privacy protection.

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.  Andrew Mirsky of Mirsky & Company contributed to this post.

Apple’s App Store is full of subscription-based content providers. Whether you’re watching a movie on the Netflix app, reading a book through the Kindle app or streaming a TV show using the Hulu Premium app, you’re probably used to paying for the app and then paying more for the content.

But that’s changing, thanks to Apple’s new policy, which will prohibit developers from requiring users to make a second purchase to access content once they have purchased the app itself.

Apple rumor website MacWorld reported earlier this summer that Apple was planning on this new policy. The article quoted Section 11.14 of Apple’s App Store guidelines:

Apps can read or play approved content (specifically magazines, newspapers, books, audio, music, and video) that is subscribed to or purchased outside of the app, as long as there is no button or external link in the app to purchase the approved content. Apple will not receive any portion of the revenues for approved content that is subscribed to or purchased outside of the app.

Previously, developers could charge one price for the app and then offer more content for a second price within the app. Unlike purchases made through the app store, where Apple receives 30 percent of the profit, profits made from purchases within the app itself would go entirely to the developer. In eliminating the possibility for in-app purchases, Apple is ensuring that it retains its 30 percent.

But developers are looking to find ways around this policy. According to MacWorld, Netflix has found a loophole in instructing users to “visit Netflix.com” without providing a button for users to do so.

Others are turning to the much anticipated HTML5. According to Piotr Steininger, co-founder of Tapangi Consulting [http://tapangi.com/] based in Washington, DC, HTML5 may open floodgates for apps that are accessed through a device’s web browser rather than through an app store.  Or in other words, “Rather than buying an app in the app store you just go to a URL and you’ve got an app to go,” Steininger says. “You load it once on the iPad and download a book locally, and you’re good to go.”

Amazon has already unveiled an HTML5-based Kindle app that works within a device’s browser, including on the iPad. The app synchronizes with a user’s Kindle library, and users can shop for Kindle content within the app. According to many reports, other content providers, including Wal-Mart, are similarly attempting to use HTML5-based apps to avoid the Apple App Store and its rules and fees.