Tag Archives: Content

Facebook’s Responsibilities As A Content Platform

bubblesIt is time for Facebook to look itself in the mirror and decide who it wants to be when it grows up.

In the wake of the 2016 US elections there are volumes of conversations taking place over our possible future, the ongoing tension and conflicts, and the root causes of the election.  The causes are numerous and not simple to categorize–your perception of the election’s results may make you view one cause as a positive or a negative, for example.  But the causes are out there and, if they did not have the impact they desired, then the results of the election compel those causes to re-examine their purpose and impact.  Facebook is one of them.

The New York Times ran an excellent article about Facebook’s possible impact and how different groups within the organization are thinking about the issue.  If you’re unable to read that article because you don’t have a subscription to the New York Times, I’d suggest you subscribe.  The article also points out the conflicting viewpoints even within Facebook, as Mark Zuckerberg has publicly posted that he believes Facebook’s involvement is minimal.  Unfortunately, I believe Mr Zuckerberg’s comments have missed the forest for the fake tree.

Mr Zuckerberg’s post talks about the potential impact of fake stories that circulated on Facebook.  He believes those stories had no impact, but that also once you go down the road of trying to mark stories as true or fake you get into dangerous territory.  Even mainstream reports may omit details or sometimes get stories wrong.  That is entirely valid criticism and it is entirely hogwash.

Certainly you can draw the line at marking what is a real or fake story and you can argue about moving that line.  Right now, no such line exists.  That allows completely fabricated stories to gain widespread circulation perpetuating their untruths.  Once that bad information has taken hold it is almost impossible to eliminate their impact, as Facebook well knows with the constant resurgence of Facebook untruths (Facebook is going to start charging you, if you post something then you keep control of your content, they now own all of your photos, etc.).  Even if another true story circulates right after the original fake story you will still have a large number of people who think the fake story may have had a detail wrong but the overall theme is true.  And of course that has an impact.

Facebook and other social media sites have become widely popular for lowering the barriers of distributing content.  We can now connect with people and share information with simplicity and ease.  That has powerful positive effects but it also has some drawbacks.  The widespread dissemination of fake news is one drawback and that can be addressed by Facebook if it wanted to do so.

But there’s a bigger picture here, one that I fear Facebook is missing by only talking about fake news.  Because the true impact of Facebook and all of social media isn’t just about fake news but rather that these platforms designed to increase communications between people may be doing the opposite.  There is a wealth of articles and research about how the same technology that gives us access to so much content may also force us into a bubble of only content that we agree with.  The most recent iteration is how this may have impacted the election, such as this New York magazine article points out, but this is an older concept as this fantastic 2011 TED talk points out (carve out 9 minutes to watch it if you can).

 

This is where Facebook can best start looking in the mirror.  Because Facebook doesn’t just set up bubbles for its users, it is a bubble generating machine.

Facebook stays successful by making sure you keep coming back.  It wants to give you content you find compelling and enough new material so you visit the site many times a day.  It also can’t give you too much content or you’ll get frustrated and leave.  And it also can’t give you content that will make you never come back–whether because you found it offensive or distasteful or any number of reasons.

This is the entire reason for Facebook’s Edgerank algorithm and why you sometimes see articles complaining how Facebook users don’t see all their friends’ posts.  Facebook constantly tweaks and plays with this program to maximize your time on Facebook.  More time on Facebook means you keep coming back and you’ll see more ads that they can sell to fund the platform.  That makes sense from a platform and business perspective.

But as a content and media company, Facebook also needs to ask if maximizing user bubbles is truly in the best interests.  Compare this to a snack food company that discovers if they add more sugar then people like the snacks more, they consume it more, they buy more of it.  That makes sense from a business perspective and yet it may not be the best possible outcome.

Facebook and others need to look themselves in the mirror and decide who they want to be.  They can take the all business approach of doing what is the best for profits or they can decide there is a greater responsibility at play.  I don’t know how to burst those bubbles if Facebook chooses to do so.  I do know that Facebook has some of the most brilliant content engineers, data scientists, and platform designers on the planet.  If they want to address this problem, they can start coming up with solutions.  Because bursting those bubbles may be vital in helping to bring people together, to help us increase understanding of problems and come up with solutions.  Popping those bubbles may help heal the polarizing partisanship that has only grown over the past years.

Those bubbles may be nice to live in, but they may choke us in isolation.  It’s time to figure out whether they’re worth keeping.

Either way, Facebook needs to look at their role in defining public conversations and make a decision.  Sticking their head in the sand and pointing at the other causes is irresponsible.  No, Facebook isn’t entirely to blame.  It also is not blameless.  Where it goes from there is entirely within their control.

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Filed under Facebook, Social Content, Social Platforms, Social Tracking, Technology

7 Legal Issues For Pokemon Go: Gotta Read Them All!

pogologoPokemon Go has taken the planet by storm.  In its firstweek it surpassed Twitter for daily active users, it became the top grossing US iPhone app in just 13 hours (despite being a free to play game with optional purchases), and mobile users are spending more time on Pokemon Go than on Facebook.  Pokemon Go has become the most popular Android app for daily users, surpassing the previous leaders by nearly 300%.  And it did that in a span of days.

Not only have you likely heard of Pokemon Go, you’re also statistically likely to have played it if you have a mobile phone.  If you haven’t played there are plenty of guides out there (here’s a video I thought was a good intro) or you can just go to any public place where you see people looking at their phones and ask them.

Given the meteoric rise of Pokemon Go, it is only a matter of time before the game crosses over into doing promotions and marketing activity.  There are already reports that the game includes code to run a test promotion with McDonald’s in at least one Asian country.  With this many people and brands interested in the hot new game (and eventual platform), my friend and fellow social media lawyer Jim Dudukovich and I wanted to present the seven legal issues you should know around the game for now.  This isn’t specific legal advice, just us thinking about the intersection of new technology and the law.  And an excuse to play.

1. Pokemon Go isn’t a platform…yet

While Pokemon Go provides an intriguing mix of real world and virtual world entertainment, the interaction between players is currently very limited.  Players do not see other players while wandering their virtual map overlays on real world maps.  The only interaction with other players is in lures dropped by players and battling/training at Pokemon Gyms.

The

The swirling purple flowers are caused by lures dropped by players–you can see the lures dropped by other players but cannot see the players themselves.

This is all certain to change in the future.  The Pokemon Go terms discuss the ability to trade items with other players even though that functionality does not yet exist.  Trading items with other players will possibly come with the ability to communicate with them as well, or perhaps there will be the ability to chat with other members of your team (one of three alliances you join upon reaching level 5 in the game).

While Pokemon Go has currently inspired people to get together and communicate, it is neither required for the game nor supported by it yet.  So the game is not a social media platform…yet.  But given the rise of players and pop culture awareness, it is almost a certainty that the game will either evolve to become a platform or players will start to congregate around another platform in order to communicate.  This places the app more in the realm of just a game for now, but as it expands functionality and brands start to get involved there will be a number of common social media platform legal issues that emerge.  So stay tuned.  And level up in the meantime.

2. Sponsored content is coming

Where there’s a game, there’s an opportunity for brands to get involved (with varying levels of legality).  The model for Pokemon Go has yet to mature (or at least to be announced publicly), but the ways brands can get involved will likely include not only some “conventional” methods, but also some integrations that are possible only with augmented reality.

Going forward, we are likely to see “official” partnerships whereby businesses can become sponsored locations or some other formally identified type of destination with yet-to-be-determined perks (and costs).  In order to distinguish the haves from the have-nots, the benefits of paying for participation will need to really break through the clutter of the free-riders in order for businesses to invest (see #3 below).  One would assume that part of that bundle of rights would be co-promotional rights, whereby those partners can produce advertising materials featuring elements that only official partners can use.

And with augmented reality comes the ability for brands to buy virtual advertising space; clearly Niantic – should it opt to pursue this revenue stream – will need to be thoughtful so as not to chase away users by overly commercializing the user experience.  When users start having to walk around a virtual billboard in order to capture a Jigglypuff, they might begin to revolt.

3. But businesses are already cashing in

As things currently stand, some businesses are near Pokestops, which attract players to their locations to load up on Pokeballs and other virtual supplies and (hopefully) lead those players to buy something from the brick-and-mortar business; at the very least it breeds familiarity and exposure.  We’ve also seen businesses buying and dropping lures to attract players, as well as putting up social posts that play off of the game’s name, notoriety, characters, and imagery, including using #PokemonGo.  There are even online articles telling business how to take advantage of this claim, like this rather creative one from Shift Communications.

Some examples:

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

This Brookstone in the Houston Galleria invites players in with a discount.

This Brookstone in the Houston Galleria invites players in with a discount.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go, although this has not been verified.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

From a legal standpoint this raises some interesting questions.  For instance, if businesses are leveraging the game to attract consumers, would Niantic not have a potential claim for false association/false endorsement?  One would think so, but since it’s already been over a week and we haven’t seen any claims, uhm, wait – how long until some form of laches or abandonment defense would attach?  But seriously – we don’t know if Niantic has any inclination to attempt to aggressively enforce its trademark rights – it’s making plenty of money from in-app purchases that are attributable to these uses and will likely make plenty more once it launches official branding opportunities.  In light of that, so long as the participation by unaffiliated businesses doesn’t interfere with Niantic’s business opportunities to sell official partnerships, and so long as those unofficial users don’t hold themselves out as official sponsors or otherwise engage in behavior that could dilute or undermine Niantic’s trademark rights, we probably won’t see widespread aggressive policing.

4. Does Pokemon Go create attractive nuisances or encourage trespass?

Pokemon Go is not the first geolocation game to exist, but it’s the first to breakout in such a significant way.  Having millions of people, many of them under the age of 18, wander around trying to collect virtual property brings some real property issues up in unique ways.  These next three topics are just a few of those interesting overlaps between the real and virtual world.

Adults know not to trespass on private property (or the law infers they do) but children are typically given a free pass when it comes to attractive nuisance law.  This is the body of law that covers situations when a child illegally enters private property and is injured while on that property.  While originally laws in this space required the nuisance itself (piles of lumber, swimming pools, trampolines) to cause the injury, the law has also broadened the landowner’s culpability to include conditions that the owner could foresee would cause injury.  Imagine a very visible giant pile of lumber that a child would want to climb and a ravine covered by grass on the way there–that’s covered.

The Pokemon Go terms do imagine this potential risk area.  There’s an entire Safe Play section which discusses avoiding physical harm while playing and obeying all laws including trespassing.  That doesn’t mean much to the 13 year old who won’t read these terms (and 99% of all other players), but it provides the developer with some protection around players being injured.  The terms do not shield property owners, who now may face a slightly greater risk of some injury on their property by players looking for Pokemon.  The game is designed to be played by walking around and the game informs players when Pokemon are nearby but not where they are–the only way to track them down is to try walking in different directions and seeing if they are closer to the Pokemon as indicated by the number of footprints near the Pokemon’s picture or outline.

Since Pokemon are placed randomly, it is possible the game could inadvertently provide clues that lead children onto dangerous property or near a dangerous condition.  These clues are left vague on purpose, to make it more of an exploration game, but that also can lead children onto private or dangerous property.  When the Pokemon finally appears you can click on its location in the map, but getting it to appear can be random.  The game also gives you visual clues of where Pokemon might be with rustling leaves–players chasing those leaves may not realize where they are going.

The game itself doesn’t intend this risky behavior, nor can it be prevented currently.  It’s also debatable if a landowner would be liable for a harmful condition when they did not create the attraction that drew a child onto the property in the first place.  If a landowner is already in a densely populated area and is concerned about children being injured, they probably have already taken action (on the condition itself, preventing access, posting signs).  If they are in a remote area it’s hard to imagine local Pokemon Go players entering their property as opposed to visiting areas of attraction (PokeStops which provide virtual items to players).  But landowners in the space between may want to be aware of this risk and if they were debating taking action in the past, perhaps now is a time to do so.

While it may be difficult to pin responsibility on Pokemon Go for an attractive nuisance or trespass, it certainly creates an environment where those actions may be more likely to take place.  So both players and landowners may want to consider the risks when playing.

5. Pokemon Go and the idea of appropriate play

Outside of the physical risks that players may be subjected to while hunting Pokemon, there is also a growing concern of whether playing the game is appropriate in certain locations.  Within the first week of the game’s launch a story circulated about the Holocaust Museum in Washington, DC asking people not to play the game in the museum.  Arlington National Cemetery also asked players to refrain from using the site as a playable location.  The sites said they would reach out to the game creator to see about excluding the sites from the game but so far there does not appear to be an easy way for property owners to exclude their land from the game.

The idea of whether a location is appropriate or not is not limited to large national sites, though.  Because Pokemon Go is based on work done for a previous geolocation game, Ingress, much of the previous game’s data are used for this new iteration.  And because Ingress was based on a storyline involving spiritual energy, many of the featured locations in the game can have a spiritual element such as churches or monuments.  Or take, for example, this PokeStop in Austin, Texas:

faniapokestop

This happens to be the headstone for my wife’s great-grandmother Fania Kruger–a woman who immigrated to Texas when she was 15 and later became a well-known poet.  Is her headstone being a PokeStop a good or bad thing?  Is it a celebration of her life to have players intentionally seek out her final resting place and perhaps learn a bit of who she was or learn her name?  Or is it a desecration of a place of remembrance for her and the other families whose relatives are nearby?  While this may not present a direct legal issue, the reaction to a real world location with emotional interest becoming a game location can cause strong reactions.  And those reactions may turn into legal issues as cemeteries, museums, or other public spaces must now develop a position on Pokemon.

6. Are Pokemon Go players loitering?

Laws vary on the subject, but generally speaking most jurisdictions have laws that allow authorities to prevent people from hanging around with no apparent purpose.  Typically these laws were used to prevent gang activity or break up groups that might lead to trouble.  With small or large groups suddenly appearing in public places, wandering around while staring at their phones, authorities might be curious or concerned.  Within the first few days of the game being launched, a story appeared on Imgur of a white man searching for Pokemon in a park late at night only to encounter two fellow players, black men, and while the three of them talked the police were called about a suspected drug deal.  The story ended happily enough, with the policeman downloading the game and playing, but under scrutiny the original poster deleted the story.

It is true that Pokemon Go is drawing out populations that were previously playing games indoors.  While many people have long bemoaned the lack of America’s youth playing outdoors, society is also shocked and confused when exactly that happens.  While businesses seem to be getting in on the action, some even advertising if their stores are PokeStops or Pokemon Gyms (areas where Pokemon are trained and players battle for control of the location), some other locations may be less open to random strangers driving up or wandering around.  And authorities may be suspicious of large groups gathering at night.  Is it a gang fight or a Pokemon Go meet-up?

The actual definition of loitering may differ by jurisdiction, but it is generally defined as remaining in one place without apparent purpose.  Whether playing Pokemon Go provides that apparent purpose or not is debatable and may be up to the discretion of police officers depending on time and location.  Shopping malls or other private property that have posted No Loitering signs are possible more sensitive to this kind of activity, so players may want to consider the area before conducting extensive searches or meeting up with other players.

7. Are Pokemon Go players targets for criminals?

In the wake of the game’s popularity came another rash of articles suggesting that players were at risk of being targeted by criminals.  There was a report in St Louis of some teens who robbed players, possibly drawing them to their location by dropping a lure (virtual items which other players can see and increase your chances of finding Pokemon).  It’s hard to imagine this is an actual spike in crime though–or if so it is by some of the worst criminals imaginable.  Targeting Pokemon Go players seems far less lucrative than, say, staking out an ATM where people withdraw money.  On the flip side, using a remote PokeStop may yield less rewards but have less chance of getting caught.  Unless you’re in St Louis.

There’s also one story that made the rounds of a player who was stabbed while collecting Pokemon but elected not to go to the hospital so he could keep playing.  You can read the full account here but I thought the more interesting (and usually ignored) part of the story was how he was out at 1 am, saw another man wandering around, and immediately asked him if he was playing Pokemon.  This apparently triggered the man to attack the player with a knife.  So maybe the lesson here is to not wander around after midnight playing Pokemon, or not to assume some other person stumbling around in the dark is doing the same.  It may also be a lesson to the developers that hopefully they won’t create specific Pokemon that can only be found in urban centers, particularly near bars, in early morning hours.

More to come

Pokemon Go has certainly taken the country and world by storm but these are the very early days of the game.  Will it fizzle in the upcoming months, or will it continue to draw a healthy crowd and new functionality as time goes on?  We’ll keep our eyes peeled for any nearby rare Pokemon new legal issues around this game and let you know.

 

 

 

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Filed under Consumer Protection, Copyright, Fair Use, Identity, Kids, Laws, Pokemon Go, Privacy, Social Gaming, Social Platforms, Social Tracking, Technology, Terms and Conditions

Top 10 Social Media Legal Concerns For 2014 (Plus A Bonus!)

2014 legal risks include the very real possibility that you drop a crystal ball on your foot. This will hurt.

I’ve been privileged enough to be connected with a variety of brilliant, articulate social media attorneys around the country.  Recently one of them asked the group for their top social media legal concerns (not necessarily those of their respective employers) and in great blogging tradition I thought “I can totally steal that and make a blog post out of it!”  But, being all lawyerly, I asked for their permission first.  And then I turned it into a list because the moment you put a number on something the lizard part of your brain takes control of your clicking finger and you cannot resist.  You know it’s true.

All links are provided by me to help provide some context or background or additional reading.  But I didn’t make any links a numbered list because then you’ll never come back.

Without further obligatory filler text, here are the top 2014 social media legal concerns.  Read the whole thing and you’ll get a special bonus at the end.  It’s like the extra scene at the end of a Marvel movie except there’s no Nick Fury.  Probably.

1. Use of Other’s Content

Jim Dudukovich, Coca-Cola (and proud Vespa owner): The recent $1.2MM jury verdict in favor of Daniel Morel regarding the use by Getty and Agence France-Presse of photographs Mr. Morel had posted to Twitter regarding the Haiti earthquake could be a seminal case regarding the danger of relying on a platform’s terms of service to re-use others’ content; the fact that the media was held liable certainly doesn’t bode well for marketers, who are not entitled to as great a license as the press.

Ryan Garcia, Dell: This is a big one because there are two areas where clients can get confused.  First, when content is marked “Public” by a platform that doesn’t mean the information is truly public.  At least not all the time.  Sometimes it means that, mostly it means the content can be freely shared within that platform.  Second, the convergence of social platforms such as Facebook purchasing Instagram leads some people to think that the content can be freely shared between platforms and that’s just not the case.  They are both teachable moments but you have to remove that misunderstanding quickly.

2. Changing Promotional Rules

Chris Irving, Publishers Clearing House: Keeping abreast of ever changing Facebook promotional rules and making sure Marketing understands the “relaxed rules” are not an invitation to do everything and anything.

Jim Dudukovich, Coca-Cola: Although this one goes in the opposite direction from Facebook’s, imposing greater restrictions on marketers’ ability to conduct promotions on the platform [Pinterest].

Ryan Garcia, Dell: It’s always important to keep up with the latest changes in platform promotion requirements.  Lucky for all my readers I have guides to Facebook’s latest changes (September 2013) and Pinterest’s latest changes (October 2013).

3. Disclosures for the Convergence of Social with Mobile

Brian Abamont, State Farm: How do companies go about ensuring compliance with all of the disclosure and notice expectations, not just in terms of actually including them but also the expectations as to how they are presented in a form factor that puts real estate at a premium and has more limited presentation capabilities (e.g. just in time notification and proximity of disclosures to content). How can this be addressed with little standardization across the mobile OS environments for these types of things?

Chris Irving, Publishers Clearing House: Helping internal clients interpret and understand scope of FTC ‘s updated Online Disclosure Guidelines (while at the same time trying to fully understand what they really mean myself!)

4. Privacy, Privacy, Privacy

Chris Irving, Publishers Clearing House: Working with cross sectional compliance teams on all things Privacy.  As our digital footprint continues to grow,  expanding efforts to insure that privacy is baked in at design and that best practices can keep pace with fast growth. Issues include online behavioral advertising, keeping privacy polices current,  keeping privacy highlights pages current, understanding changes to polices and what accompany disclosures are necessary . . . . .

Brian Abamont, State FarmI would also place a strong “seconded” support behind Chris’ point about privacy and add that the rules are changing at a rapid pace across not just federal/national levels but also various states and provinces across North America and the rest of the world.  Furthermore, in some cases, the rules have been created after an alleged offense and seemingly applied retroactively, at a minimum from a reputational standpoint.

Daniel S. Goldman, Mayo Clinic: Probably less a legal  issue (at present), though I think there will be increasing regulation over time.  I think the issue is the public’s increasing concern about the data that is being collected/monetized by social platforms and by commercial entities and what can be divined about them from that data.  This plays out across many spectrums.  The most obvious is the negative reaction to targeted/behavioral ads, but also reflects a concern about analytics that is done on data that is collected (e.g. the “Target Article”).  I think there is a growing public perception that there is a digital “permanent record” about all of us that companies are mining to sell them stuff.

5. Fraud Fighting

Chris Irving, Publishers Clearing House: Expanding efforts to fight scammers and fraudsters on the internet who would use our name to deceive. Efforts include enhanced consumer education, public private partnerships and supporting stronger criminal penalties in Jamaica where a majority of these scams are originating.

6. Increased Attention to “Commercial Creep” and Transparency

Jim Dudukovich, Coca-Cola: This manifests itself in a few ways, from the FTC’s workshop on native advertising and the search for answers as to what consumer expectations are and the scope of consumers’ ability to distinguish between editorial/creative content vs. sponsored content/branded integration, to the NY AG’s “Operation Clean Turf” (investigating and penalizing the practice of publishing fake reviews).  Not to mention the attention the NAD has placed on native advertising/transparency (eSalon and Mashable/Qualcomm).

7. Social Behavioral Advertising

Brian Abamont, State FarmTypically, [behavioral advertising] has applied to web based activities and were easily covered by privacy policy and “About our Ads” information pages.  As the level of information from social is much deeper than a typical web site visit and marketers looks to make more advanced use of that information, how do businesses present proper consent/disclosures in the social platforms?

8. Reputational Public Relations and Marketing on Social Media

Jim Dudukovich, Coca-Cola: We’ve seen more and more instances in which the speed of social media marketing has trumped judgment, and major brands, either directly or through agencies, and sometimes even accidentally, have pushed out messaging that they later regretted (and perhaps wouldn’t have published had they engaged in a more rigorous internal review process).

Jessica Fredrickson, Walmart:  Blurred lines between marketing and reputational PR. Our clients are increasingly using reputational “advertising” to promote our good works (#RealWalmart). Whether these messages translate into sales isn’t clear and how these messages should be managed through a review process and with appropriate disclaimers is not consistent. 

9. Changes to TCPA Express Written Consent Rules

Chris Irving, Publishers Clearing House: Providing internal guidance to clients on the changing TCPA consent requirements applicable to text messaging campaigns as well as the necessary vetting for third party ads appearing on our sites where there is phone collection.

10. Crowdfunding

Ryan Garcia, Dell: The JOBS Act changes continue to come in and we have a market where many more people are comfortable with Kickstarter and other crowdfunding platforms.  The possibility of actual equity investment for the masses, as opposed to paying for items that help fund a project, has huge positive and negative ramifications.  People getting upset over late deliveries for a Kickstarter project are one thing–thousands of equity investors being upset over the direction of a brand new company is another altogether. Here’s a longer post on the subject from Perkins Coie.

And here’s your bonus as promised in the headline (and at no extra charge to you!).  Here’s a list of the top social media legal issues as presented by Mark Bisard (here’s his Twitter because he’s social!), social media and general digital guru for American Express.  These are all the details he provided or else he could have been incorporated into the main list, but instead it’s a bonus list for you. And there’s 16 things here, which makes it approximately 60% longer than the list above!  Enjoy and happy holidays!

  • Year of the Hashtag
  • Selfie is word of the year (see reputational risk parallels with Obama photo)
  • Internet of Things  (TRENDnet and FTC workshop)
  • Virtual Currencies (Largely BitCoin but also push to have VC like Farmville regulated like other FIs)
  • Mobile-Social Convergence results in Net Domination (or staggering blow in battle between search and social)
  • Real Time Marketing (Oreo-SuperBowl and West Jet type marketing, Multi Screen viewing consumption trends, internal agile and lean ux organizational changes)
  • Evolution of Cause Based Marketing to Issue Based Marketing (I made this up, but think Haiti relief on over to the surge of woman’s issue ads like Pantene, Goldblox, and  etc)
  • Data Security (spooky Aaron’s rental case, Blackberry’s death means more BYOD, President’s Exec Order, zip code cases, Hacks on big social platforms, Living Social’s 50 million person breach, the largest financial data breach in history (160 million credit card numbers stolen, but damages still hard to prove for consumers)
  • Rise of Snapchat and rejection of FB offer (new kid in town?)
  • Reed Hastings – Netflix- SEC response
  • Platform, rules and feature changes (FB, Pinterest – FB buys Instagram, Yahoo buys Tumblr, Google buysWaze – iOS7, new gTLDs and wearables – offers and gaming platforms like Groupon and Farmville struggle)
  • Regulators do their best to catch up and evolve (FTC, FFIEC, SEC, TCPA, California, State Password Protection laws, and even P-1A Visa issues for professional gamers signal evolution)
  • Transparency is clear trend (Operation Clean Turf, Native Advertising workshop, FTC’s renewed interest in black hat search practices, FTC action against spammers
  • OPP – “Public” – AFP & Getty case, GoldiBlox v The Beastie Boys saga (we were right—there’s a difference between publicly “accessible” and “publicly available for any damn thing I want” – shocker I know)
  • Big Surveillance – Big Data (big news, little in the way of change – Big data becoming legit biz practice but still fighting rep battle, Tech Titans letter to President is interesting, Path case and use of ECPA’s Wiretap Act and Store Comms Act to attack Google and others also interesting)
  • The Wallet Wars I think are the biggest news of the year.  Huge array of players/participants, consumer options.  Ready to burst.  Regulators are weighing in.  Bigger than VHS vs. Beta.  Hopefully beta wins this time.

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Filed under Commercial Activity, Consumer Protection, Copyright, Crowdfunding, Facebook, FTC Endorsement Guidelines, Google, Identity, Instagram, Laws, Pinterest, Social Content, Social Marketing, Social Media and the Law, Social Media Lawyers, Social Media Risks, Social Platforms, Social Tracking, Terms and Conditions, Twitter

My Five Bold And Totally Baseless Social Media Predictions For 2013

Look…into the FUTURE!

Not since Nostradamus first tweeted about the McRib sandwich will you find a post filled with more bold and totally baseless predictions for the future. Bold because I’m not going with the obvious (for example, an obvious prediction would be a platform will change its terms of service/privacy policy and some people will be really upset for no good reason, or a major brand will do something incredibly stupid on a social network, or I will eat some bacon) and baseless because, you know, they’re predictions.  I’ve also included a brief discussion on the legal risk that might follow such a bold and baseless prediction if it came true.  Because that’s what I do.

Facebook will announce the end of Timeline

It’s been a year since the announcement/rollover from the Wall to the Timeline. In vase you’ve forgotten, this was heralded as the worst Facebook move of all time and it was going to allow Google+ to take over. Not by me–even I’m not so bold. But a year later and your Timeline is basically a two column Wall. Some people built out some photos, added some events, but it didn’t revolutionize the way we interact with our personal information.

This is a problem for Facebook. Now that they’re public they need to make more money and the best way to do that is through advertising. Facebook also knows that the highest rates for ads are the most personalized ones–and wouldn’t the user’s Timeline be the best place to present highly relevant, micro-targeted ads? Problem is that most people spend time on their stream of news, not their Timeline. That’s why we see ads in our feeds now. But Facebook will change that.

I predict Facebook will announce a new personal gateway in Facebook in 2013 designed to be your landing page rather than your feeds. It will incorporate items posted by your friends (that’s why you’re on Facebook, after all) but also present more topical news, local information, even highlight some of your relationship activity when a friend pops up. All designed to keep you glued to the page and see the lucrative ads Facebook will display. You may be outraged and you will be swamped with petitions to bring back Timeline, but ultimately you will change over and forget about it by 2014.

Legal risk: Little given Facebook’s terms, but if they alter Timeline enough to lose life events that people want tracked without a way to export that data, there could be some nuisance lawsuits over the lost functionality.

Twitter will focus on users who don’t tweet with new notification system or content aggregation

Twitter continues to grow and there’s a huge population who send a barrage of content into the Twitterverse. But the majority of activity on Twitter is reading, not posting. And there is a sizable population that don’t post any content but just read other tweets. Some projections have that group as high as 40% of all Twitter accounts.

Given Twitter’s increasing advertising revenue and a large group that are just consuming content, it makes sense for Twitter to offer new features for these users. Not that they’ll focus exclusively on these consumers–you have to keep the content rolling in–but I expect to see a more robust notification system to replace the current minimal approach. Perhaps a merging with the Discover tab (Twitter’s first attempt at content aggregation) or an expanded effort to show users what information is trending based on who they follow or topics they’re interested in. We’ve seen growth over the years of content aggregation social platforms like paper.li and storify. Twitter has a giant amount of content–if they can figure out how to present it in expanded ways to their consuming population, we could see some huge changes in the platform next year.

Legal risk: Also little here, although I could see some groups within the Twitter consuming community that might get upset if their usage data is being sold to advertisers.  There’s no predicting who will get upset over something (well, there is–everything will upset somebody) but a group who publishes less information on a platform may have a greater expectation of privacy (realistic or not) that could result in more hurt feelings if something changes.  And hurt feelings is the first step to nasty lawsuit.

Groupon will go out of business

Groupon famously brushed off a $6 billion buyout offer from Google just two years ago. At the time, prospects seemed high and one year later Groupon went public and saw its shares rise over 30% the first day.

And when was the last time you bought one?

A flood of copycats combined with all the interesting deals getting used up that first year has turned social coupons from cool to exhausting. Add more focus on regulations and a mix of class actions and I think Groupon is one large mistake from disappearing.

I predict that mistake will happen in April when they mistakenly publish a deal to a large retailer who didn’t approve the offer leading to so many refunds, complaints, and lawsuits that they’ll shut down for good.

Legal risk: Groupon has been the single throat to choke when their deals go wrong thanks to a local business going under or a deal getting fouled up.  If Groupon goes under leaving no way for the local businesses to redeem the offers I could see a slew of extra lawsuits over the leftover Groupon crumbs.

Foursquare will enter the mobile payment business

Foursquare has connected with American Express and local businesses to offer promotions when you check into a business and make a purchase. With enough experience under its belt, Foursquare will start providing its own mobile payment service. Probably in partnership with another provider because payment tech is a lot of work.

This will open up a number of interesting offers beyond the convenience. Imagine checking into a local store, paying from your smartphone screen, then being offered the chance to post about your purchase for 50 cents off the total. Or a special 10% coupon broadcast to all your friends within a few miles of the store.

Legal risk: Thinning the line between purchasing and marketing/endorsing a product/store can be dangerous.  While such seamless activity could provide some unique revenue streams, it could also create some legal risks if a security setting goes amiss or offers are sent out without consent.

Google will buy Pinterest

Google has done some great things with Google+.  The problem is that not enough people know about it.  The +1 button has great metrics–the rest, not so much.  And while the site design is clean and modern, the content is a bit stale outside of tech and social media topics. Pinterest, on the other hand, has engaging content but not great ways to interact with it.  And it attracts a demographic that Google+ probably doesn’t have a lot of.  All good ingredients for an acquisition.

Google would gain the references that Pinterest famously produces, not to mention the content that could feed into search results.  Pinterest could also break through into a major network as opposed to a site for wedding dresses, craft ideas, and recipes.

Legal risk: Pinterest has a number of copyright concerns and if it expands more than those issues could be brought to the forefront.  Google is best equipped to address those concerns, however, but the resulting lawsuits could be large and expensive.

 

So those are my predictions for 2013.  Another prediction: None of these five will actually happen in 2013.

What’s your bold and baseless prediction for social media in 2013?

 

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Filed under Commercial Activity, Consumer Protection, Facebook, Google, Pinterest, Privacy, Social Content, Social Marketing, Social Media Risks, Social Platforms, Twitter

The Craigslist Content Prenup

“And do you, Craigslist, take this Content, to license and use however you choose for the rest of your life or until the owner gets really upset and starts a Twitter flamewar against you?”

Terms and Conditions.  Just those three words probably give you the creeps.  Show of hands: how many people have actually read all 40+ pages of the iTunes Store Terms and Conditions?  Yeah, I’m the only one holding up a hand.  Which makes it a bit hard to type this blog post so I hope you don’t mind if I put it down.

Ah, better, thanks.  We’ve talked before about why those terms and conditions can be so long and difficult to read but at the end of the day I do think most of them can be read without falling asleep.  This doesn’t prevent people from misinterpreting them, and it certainly doesn’t prevent the vast majority of people from just clicking through without trying to understand what they’re signing up for.  But those terms matter.

Take, for example, the recent change Craigslist has made to the terms on the page where you submit your ad.  At the bottom of the page, just above the button to continue, is this one line:

Clicking “Continue” confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.

There’s an interesting history about why Craigslist made its change which can be found over at LifeHacker (h/t to my friend @MisterHub for pointing out the story to me).  I find this change interesting for two reasons.  First, the change violates the overall site terms; and second, it shows some of the problems dealing with ownership and licensing of social media content.

Craigslist has general Terms of Use which has language on the issue of user generated content:

You automatically grant and assign to CL, and you represent and warrant that you have the right to grant and assign to CL, a perpetual, irrevocable, unlimited, fully paid, fully sub-licensable (through multiple tiers), worldwide license to copy, perform, display, distribute, prepare derivative works from (including, without limitation, incorporating into other works) and otherwise use any content that you post. You also expressly grant and assign to CL all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).

Just reading that first sentence would surprise most people.  When you post an ad on Craigslist you let them copy it anywhere.  They can perform it (a dramatic reading, perhaps).  They can even make a derivative work out of it–granted, your ad selling an old iPod for $50 isn’t likely to be easily converted into a movie script, but there have been many creative Craigslist postings over the year (they even compile them in the Best of Craigslist section).  And Craigslist has those rights everywhere, forever, and there’s nothing you can do about it.

But now there’s more because in the short line on the posting page they added an important word: exclusive.  Craigslist uses it twice in the short summary.  The second use isn’t that big a deal–they say Craigslist is the only one who can sue someone for using it improperly (this way they’ll have standing if they decide to sue the company or similar entities mentioned in the LifeHacker story) and is essentially the same thing as in the general terms.

However, the first use of exclusive is huge and it comes down to the issue of who owns content on social media.  Every once in a while you’ll come across a story on how Facebook wants to own your photos or Twitter wants to own your tweets or Foursquare wants to own your location or something silly like that.  The fact is virtually no social platform wants to own your content.  Because with ownership comes risk–risk that you infringed someone’s copyright, risk that you’re defaming someone, risk that you’re advocating violence against someone or something, etc.  And the owner bears the brunt of that risk.  So why own the content when you can just get a license to do whatever you want with it?

That’s what a license is after all, permission to do something without owning it.  You don’t buy software, you receive a license to use it and make limited copies of it.  You don’t buy a movie at the movie theater, you buy a ticket which is a license to watch the movie that one time.  You don’t buy music, you obtain a license to listen to it (this one gets thornier if you start talking about physical CDs and such, so we’ll just leave it there).

It’s perfectly natural for Craigslist to want a broad license to your content.  After all, you’re posting it there so that Craigslist can then present it to a lot of people in various ways.  What is interesting and dangerous is the exclusive license they seem to now want.  Let’s leave aside the issue of whether it’s enforceable given the conflict with the main terms–assume it is an exclusive license.  What does that mean?

Technically, it means you can’t let anyone else use that content.  So you can’t copy your ad and post it on another platform because, in all likelihood, you would be granting that other platform a license to the content.  But now you can’t give someone else a license because you promised Craigslist that you’d be exclusive to them.  You’re now content-monogamous and your content isn’t allowed to see other platforms without violating your contract.  You’re signing up for a content prenup.

There are some ways you could get around this limitation:

  • Don’t license a copy to other platforms but just give it to them.  You don’t care, it’s an ad.  But it would be difficult to negotiate individual terms  with a platform and you’re unlikely to find one whose terms say you’re giving them the content.
  • Just make a different ad for Craigslist as everyone else.  Annoying, but at least you’re following this new term.

But if you don’t want to go around the limitation, you could just go through it and risk violating Craigslist terms.  Meaning you post the ad on Craigslist and then you copy it onto another platform.  The worst they could do is take your content down if you post it on Craigslist and a few other sites.  I suppose they have a potential claim to sue you for breach of contract by not giving them the exclusive license, but their damages are minimal to none and, let’s face it, the public backlash over such a suit would kill them.

In fact, just the backlash over this language may do some damage.  LifeHacker is already taking up the cause, urging its readers to contact Craigslist about the change.  Perhaps more users and sites will take up the cause as well.  More likely is that people won’t care unless Craigslist starts taking down posts that appear on other sites or starts sending some nastygrams to users over the issue.

This situation does illustrate how the terms and conditions of a site matter.  Before today you probably never thought that copying and pasting an ad onto Craigslist and another site could put you at risk of a breach of contract lawsuit.  It does.  It’s a low risk, but it’s a risk.  So, if you’re feeling particularly rebellious today, you can Copy/Paste your way into potential exposure.  Enjoy.

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Filed under Commercial Activity, CopyFUD, Copyright, Facebook, Social Content, Social Media Risks, Social Platforms, Terms and Conditions