FTC enforcement of its new blogger guidelines has involved typically high-profile actions against Anne Taylor LOFT (FTC ultimately taking no action) and Reverb Communications (for allegedly deceptive postings of positive reviews on iTunes for games produced by Reverb clients).

While premature to draw any broad conclusions on the enforcement environment for the new rules, a philosophical problem with the FTC’s new blogger framework is its willful ignorance of the advertising underpinnings of traditional media.

So, for example, while established newspapers like the New York Times and Washington Post depend for their credibility on perceived soundness of the journalistic “church-state” divide, readers are almost never proactively alerted to major advertising support from common story subjects in business and politics.  Disclosure more typically comes from investment or ownership relationships, in the form of “full disclosure” statements like that from Ezra Klein when reporting about Facebook (“Disclosure: Washington Post Co. Chairman Donald E. Graham is on Facebook’s board, and The Post markets itself on Facebook.”).  Not, though, from advertising relationships, even major advertisers.

At least not with newspapers.  PBS’ Newshour, NPR and other public news broadcasts commonly disclose underwriting relationships involving story subjects.  However, the same cannot be said of commercial television news broadcasts unless they involve investment or ownership relationships.

Since the underwriting structure of public broadcasting is substantively no different than the advertising relationships of newspapers, commercial television and most media websites, editorial disclosure of the financial support – of any kind – of such media outlets seems equally appropriate.

Citizen Media Law Project, in its coverage of Anne Taylor action, notes that the FTC guidelines limit disclosure to cases where the sponsorship relationship is not “reasonably expected by the audience”.

Put in the context of audience reasonable expectation, this seems rather generously written for the benefit of old-line media, which has relied for generations on the presumption of credibility by its readership much more so than disclosure.

Why then, shouldn’t bloggers be afforded the same benefit of the doubt that newspaper publishers have been given for generations?  Yes, there will always be egregious cases of paid-for “earned media” such as the Reverb case with iTunes.  But it used to be that time and dedicated readership was the ultimate arbiter of media influence.

This all begs the question of why the expectation of the relationship – rather than actual influence – is the measuring stick.

An interesting case comes out of the West earlier this month under Copyright law’s “first sale” doctrine, involving computer software under a license agreement.

Copyright’s “first sale” doctrine

The “first sale” doctrine involves this concept: If you buy a copyrighted work (say, a painting, or a book, or – as in this case – software – you have an unqualified right to transfer your copy of that work to anybody as you please.  That doesn’t mean you can make additional copies and sell those too, but generally it does mean that you are free to resell something that you purchase.  (As will be discussed below, the operative term is “purchased”.)

The doctrine was first recognized by the Supreme Court in a 1908 case, and later codified by Congress into the Copyright Act in the 1976 amendments to the Act. Continue reading

What is the legal significance of a website’s privacy policy?

That question lingers when reviewing such policies for legal compliance and for consistency with a company’s actual practices.  Problem is, lawsuits involving claims of breaches of privacy policies have failed even in cases of clear and egregious violations by the service provider, where there was an absence of a showing of actual damages.

Eric Goldman cites a number of cases in his blog, including a prominent class action in 2005 against Jet Blue Airlines for voluntarily turning over passenger names to a government contractor, in clear violation of the airline’s stated privacy policy.  Policies commonly permit the service provider to disclose information in response to a government demand.  Yet, Jet Blue won dismissal despite any such disclosure right in its policy. Continue reading

(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). Both these articles discuss the prominence of the website, podcasts and a new iPhone application, which may lead members of an older generation to put down the paper, go to their children or grandchildren, and ask, “How can I download a podcast?”

In this way, the rise of “All Songs Considered” represents a recurring cycle in our society today: the new media attracts the traditional media and the traditional media audience is intrigued to learn more about new media.

Stay tuned to see whether or not this leads to 20-year olds and their parents listening to the same music.

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