(Thomas Yarnell contributed research and writing to this blog post.)

Copyright law preempts certain state law personal rights, including misappropriation of someone’s likeness or identity.  For example, the right of an individual to prevent a third party from exploiting that person’s image or voice is trumped when that third party purchased the rights to the sound recordings (i.e. the copyright) of that person’s voice.

Similarly, someone like celebrity blogger Perez Hilton might argue (and did argue in a recent lawsuit, somewhat successfully) that he had protection under copyright law (as “fair use”) to copy someone else’s copyrighted photographs.  And Hilton might further argue (and did argue in that same lawsuit, although not as successfully as his fair use argument) that his copyright claim preempts any attempt by that aggrieved copyright holder to pursue other legal arguments against Hilton.

And THAT, in beautiful incoherent summary, is how Perez Hilton might make some very good law and teaching on federal copyright law!  Like OMG! Continue reading

[Thomas Yarnell contributed to research and drafting on this post.]

Google’s popular and dominant advertising service, AdWords, allows companies to place auction-style bids on search keywords.  If a company bids the highest amount on a keyword, that company’s ad comes up first when someone searches the keyword.  The company then pays Google on a pay-per-click basis.  In many countries, including the United States, Google lets companies advertise next to search results from use of their competitors’ trademarks.

Let’s say you want to buy a Louis Vuitton bag.  You know it’s expensive, so you might not want to buy it directly from the company’s website.  Instead, you might search “Louis Vuitton bags” on Google and assess other options.  As you can see in a search of “Louis Vuitton bags”, you may find some “Sponsored links” to the right of your search.  Sponsored links such as the “Louis V. Bags Handbags” come from the AdWords service. Continue reading

Imagine you’re in the company boardroom, and you propose to let every single one of your thousands of employees offer advice to customers… on the Internet.

Although most of your employees may offer advice in the company stores on a daily basis, isn’t allowing all of them to do it on the Internet a huge risk?  Wouldn’t everyone in the boardroom look at you like you were insane?

Best Buy decided to take this risk using Twitter.  One year later, the gamble appears to have paid off.

This July marks the one-year anniversary of Best Buy’s “Twelpforce” (i.e. Twitter help force), a social media experiment in customer service.  Any Best Buy employee can sign up using his or her own personal Twitter account, and whenever they add the hashtag “#twelpforce” the tweet gets added to the Twelpforce feed.  No tweet is added to the feed without the hashtag.

To ensure employee accountability and allow customers to build a relationship with a specific employee, each tweet posted on Twelpforce includes a signature at the end indicating the personal Twitter account of the employee.   Continue reading

NPR’s “All Songs Considered” is a show representative of the station’s embracing all things new media. Through digital tools like podcasts and streaming video, and social media sites like Facebook and Twitter, the show has gained serious clout with both fans and musicians. While much of NPR’s older audience may stumble upon “All Songs Considered” between radio news programming, the new media tools enable NPR to reach a younger audience. This audience comprised of multiple generations attracts musicians to the show, as they see the potential for new fans and national exposure.

“All Songs Considered” was recently featured in The Washington Post as gaining the reputation of an indie rock tastemaker. Though perhaps not as scientifically sound as other methods, a comparison of the show’s Facebook page to that of other indie music blogs affirms this characterization. Indie music blogs Indie Rock Café and Stereogum respectively have 4,098 and 3,622 “Likes” on their Facebook pages. “All Songs Considered” has 12,839.

Is such a comparison even fair when considering NPR’s advantages? Probably not. Most indie music blogs do not have national radio shows, fully equipped studios, and salaried employees. NPR has clearly learned, though, from how these popular blogs engage an audience. Both Facebook and Twitter enable fans to comment on what songs they love or which new artist should be featured, while web polls allow NPR to track what listeners are enjoying the most. One recent episode of “All Songs Considered” focused on listeners’ picks for the best music of 2010 so far. Fans cast thousands of votes on the NPR Music website.

With “All Songs Considered” embracing a new media model and receiving a good deal of exposure for it, NPR helps to bridge a generational gap between young people and their parents. For those of older generations who do not download podcasts to their iPhone, they may end up reading about “All Songs Considered” and NPR music in The Washington Post or The New York Times (read the New York Times article here). The articles discuss the prominence of the website, podcasts and new iPhone application, so they may put down the paper and go to their children and grandchildren, asking, “How can I download a podcast?”

In this way, the rise of the program represents a recurring cycle in our society today: the new media attracts the traditional media and the traditional media audience is in turn drawn to the new media.

Stay tuned to see whether or not this leads to 20-year olds and their parents listening to the same music.  Fondly do we hope, fervently do we pray ….

I wrote last week about the proliferation of the law of libel on the internet, but the same explosion of opportunities for litigation – and risks to would-be publishers – applies via the internet to all forms of speech.  Libel is still libel, but more cases are pushing arguments that speech is conduct that can be sanctioned and criminalized.  And for much the same reasons.

As I wrote:

Because like a lot of things that the internet did not change, it did not change the law of libel.  In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published.  And second, and sometimes of even more significance, the removal of barriers to entry.  Or put another way: Everyone is a prospective publisher.

Several recent stories vividly illustrate the point, including an article in last Thursday’s New York Times about suicide chat rooms and prominent recent lawsuits in New Jersey and Louisiana involving attempts to “out” the names of anonymous online authors.

The Times reported that a Minnesotan named William F. Melchert-Dinkel was charged with aiding the suicide deaths of a British man in 2005 and a Canadian woman in 2008.   Continue reading

I recently wrote about the dust-up following the awarding of a Pulitzer for political commentary to online cartoonist Mark Fiore, when it was revealed that Apple had rejected Fiore’s proposed iPhone App several months before Fiore’s Pulitzer fame.  As had been widely reported, Apple subsequently invited Fiore to re-apply, which Fiore promptly did and now, evidently, Fiore’s cartoon app is available for download through the store.

Commentary on the episode leaned heavily to the view of “what gall!” of Apple to presume rights to regulate content.  So, for example, Rob Pegoraro wrote in the Washington Post last week:

If this conduct seems arbitrary, that’s because Apple gives itself that liberty.  The Cupertino, Calif., company’s iPhone developer agreement, as published by the Electronic Frontier Foundation, says Apple can reject an application “at any time” if it thinks rejection would be “prudent or necessary.” Continue reading

Eric Felten brilliantly skewers the supposed credibility of the online “marketplace of ideas” when he recently wrote last week in the Wall Street Journal:

Spend any time on the Internet and – like the naif in the ‘Casablanca’ gambling room dumbfounded when the wheel comes up 22-black twice in a row – one’s bound to ask, ‘Say, are you sure this place is honest?’

This sort of thing seems oddly hilarious and at the same time naïve in the same way as the fool in Casablanca, in whose defense one could at least say it was a different time.  Last I checked, there was no giant sign over the entrance to the internet saying “tread warily here”, although Felten’s point about the sensitivity of individuals to words being written about them is hardly a new concept.  Just one small point of reference: I handle a fair amount of pre-publication review of publications for libel (i.e. in advance of actual publication), and one thing I usually drill into my publishing clients is being somewhat sensitive to the litigatory likelihood of the person about whom words are being published.

I’m not saying shy away from controversial journalism, and it’s advice that probably did not compel the muckracking vision of Woodward and Bernstein or the “American Century” mantra of Henry Luce.  Nonetheless, don’t ask a libel lawyer for advice unless you’re willing at least to consider whom you’re writing about if one of your goals is simply to avoid getting sued.

Continue reading

Trumpets Ryan Chittum in the Columbia Journalism Review, “Yes, this is that serious. [The news media] needs to wrest back control of its speech from Apple Inc.  It’s easy to do it now while the press has leverage over Apple.  If the iPad becomes a significant driver of media revenue, and Apple decides to crack down, it will be too late (yes, the iPad has a Web browser, but the monetary leverage it could gain with apps is what’s concerning).”

Here’s an interesting dilemma for a potentially dominant technology or communications platform: Early Twentieth Century Supreme Court cases found a “public” (and therefore “government” and therefore subject to regulation) role of company towns and their attempts to enforce “private” laws through company-supported police powers.

Continue reading

I will be moderating 2 separate panels on Monday and Tuesday at the 2010 Politics Online conference spectacular here in Washington.

The first will be Monday April 19th at 2pm, and called “Is this Barack Obama’s Real Facebook Page? Domains, Twitter Handles, Online Presence – real or fake? Intellectual Property, Cyber Identity, and More!”.  I will be joined on the panel by Jason Torchinsky of Holtzman-Vogel, Matt Sanderson of Caplin & Drysdale and Neal Seth of Baker Hostetler.

The second will be Tuesday April 20th at 10:30am, and called “Laws Affecting Digital Communications – Copyright, Privacy, Elections/FEC, Advertising, Libel, Contract Law, etc.  Rules, Regs, Fines and Community “Standards” Applicable to Communicating in Digital Media.”  On this panel, I will be joined by Jason Torchinsky of Holtzman-Vogel and John Stewart of Crowell & Moring.

Details at polc2010.com/.

NPR’s Lynn Neary reported last week on the value of e-books (“No Ink, No Paper: What’s The Value Of An E-Book?”), illuminating the nuance about pricing of electronic books.  Because books – electronic or otherwise – are still almost entirely issued by old-line publishing houses under the same decades-old operational model, a publisher’s cost of operations still has to be recouped.  And for publishers, the sole source of that recoupment remains the consumer purchaser of a book, regardless of the medium of a book’s distribution or purchase or presentation.

From this perspective, a more alarming (from the publishing industry’s perspective) competitive threat on the market today is the low-cost pricing of hardcover books (including current bestsellers) at places like Target, Costco and Walmart.  The fact that Amazon agrees to raise the basic Kindle book price helps alleviate publishers’ pain only so long as the electronic book market seriously impacts the book purchase market and – which is nowhere near the case – and only so long as Amazon (and a very few smaller competitors) dominate electronic retail – which they do.

And this is precisely the point book industry veteran Jason Epstein makes in his March 11th essay in The New York Review of Books, “Publishing: The Revolutionary Future.”  For the book publishing industry has been reeling since well before the appearance of the Kindle or Sony Reader or, for that matter, since well before the digital migration.  Admits Epstein, “This historic shift” of digitalization “will radically transform worldwide book publishing, the cultures it affects and on which it depends.”  However, why the shift remains so difficult for traditional book publishers has much to do with decades-old trends:

“Meanwhile, for quite different reasons, the genteel book business that I joined more than a half-century ago is already on edge, suffering from a gambler’s unbreakable addiction to risky, seasonal best sellers, many of which don’t recoup their costs, and the simultaneous deterioration of backlist, the vital annuity on which book publishers had in better days relied for year-to-year stability through bad times and good.  … The resistance today by publishers to the onrushing digital future [arises] from the understandable fear of their own obsolescence and the complexity of the digital transformation that awaits them, one in which much of their traditional infrastructure and perhaps they too will be redundant.”

Epstein thoughtfully weighs consumer misperceptions about e-books with the publishers’ dilemma.  Consumers, not surprisingly nor unreasonably, might think that electronic book pricing should benefit from the avoidance of the physical costs of publishing, most obviously inventory, manufacturing, paper and distribution.  Of course the industry wants to maintain or even increase profits, which includes covering losses from poor sellers in both print and electronic.  Whether true or not, it is not the whole story.  The reality of publishing still very much involves the huge majority of bookselling in print, via physical retail stores or online sellers.  Put another way, one great obstacle to the evolution of publishing is the lack of evolution in the buying market.

As Epstein later told NPR for its story, “One thing that publishers do have to consider in thinking of pricing is that they don’t want to liquidate their existing retail structure by making it so inexpensive to get an e-book that people won’t go to bookstores at all and then publishers will have no place to sell the 90 percent of the books they do create in the physical form.”

On the other hand, Epstein’s own writing on the subject – a much broader futurism on the limitless possibilities of a digital publishing landscape – seems quite a bit more sanguine about publishing’s future than might be gleaned from the quotes in his subsequent interview for NPR’s story.

Nonetheless, his sympathies obviously lie with a stodgy but (in his view) celebrated industry generally apoplectic about both present and future.  He doesn’t seem to lack any confidence that the industry can survive and thrive (“The more adaptable of today’s general publishers will survive the redundancy of their traditional infrastructure but digitization has already begun to spawn specialized publishers occupying a variety of niches staffed by small groups of like-minded editors ….”).  But he offers compelling economic and cultural arguments for why the market publishers currently resist basement-rate pricing for e-books as well as why, inevitably (if not immediately) the market will absorb and reflect the business reality “with or without the cooperation of [publishing’s] current executives”.