Content, Control and Socially Networked Media

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Presentation on consequences of deep linking, social networking, curatorial audiences, and behavioral advertising

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Content, Control and Socially Networked Media

  1. 1. Professor Jon M. Garon Hamline University School of Law February 2009 Content, Control and Socially Networked Media Intellectual Property Scholars Roundtable Drake University School of Law
  2. 2. Trends breathe new life into old issues of privacy <ul><li>The harnessing of social trends for public predictions and consumer behavior </li></ul><ul><li>The growing role of the curatorial audience </li></ul><ul><li>The expansion of behavioral advertising </li></ul><ul><li>The development of tools to search “the deep web” </li></ul>
  3. 3. Social Networking and Subjective Relevance change both development and distribution <ul><li>Social relevance -- determining the importance of goods or services based on social rather than objective criteria -- dominates consumer behavior (e.g., hot tickets, premium seats, designer brands, etc.) </li></ul><ul><ul><li>Social relevance sets the value of many otherwise non-scarce goods </li></ul></ul><ul><ul><li>Social networks can be used to harness the subjective relevance in the development of new goods </li></ul></ul><ul><ul><li>May reduce the transaction cost for research and development </li></ul></ul><ul><li>Combine subjective relevance with active and passive data collection </li></ul><ul><ul><li>Moves beyond the consumer product testing common to industry </li></ul></ul><ul><ul><li>Allows for much earlier and more predictive consumer behavior </li></ul></ul><ul><ul><li>Uses data to allow the consumer behavior to set the questions as well as answer them </li></ul></ul><ul><ul><li>Data mining may highlight insights into commercial development and geographical differences in social relevance to improve markets </li></ul></ul>
  4. 4. Web 2.0 and the Search for Subjective Relevance <ul><li>“ We've found that certain search terms are good indicators of flu activity. </li></ul><ul><ul><li>“ Google Flu Trends uses aggregated Google search data to estimate flu activity - up to two weeks faster than traditional flu surveillance systems.” </li></ul></ul><ul><li>“ Each week, millions of users around the world search for online health information. </li></ul><ul><ul><li>As you might expect, there are more flu-related searches during flu season, more allergy-related searches during allergy season, and more sunburn-related searches during the summer.” </li></ul></ul>google.org Flu Trends Data calibrated to be as accurate as CDC data and arrive two weeks before CDC can release the same information.
  5. 5. Social media for programming film in Brazil <ul><li>Uses Bit torrent to download a digital “print” for showing </li></ul><ul><li>In different cities, the programming changes </li></ul><ul><li>The physical social environment married to the on-demand movie activity </li></ul>MovieMobz Using Internet, participants vote on movie of the week Theater announces which movie will be shown by e-mail
  6. 6. The “Curatorial Audience” demands a role <ul><li>YouTube has become pervasive </li></ul><ul><li>Audience expects to collect content, post comments, promote views and participate in distribution </li></ul><ul><li>Commercial producers are unlocking controls to share in new audience interaction </li></ul>
  7. 7. Watching is not enough <ul><li>Few better examples of curatorial behavior than Hulu’s tool to embed President Obama’s address to Congress in one’s own website </li></ul><ul><li>This is a new relationship between author and audience </li></ul><ul><ul><li>Very well suited to a “Platonic democratic ideal” </li></ul></ul><ul><ul><li>Requires new approaches for traditional commercial authors </li></ul></ul><ul><li>Allows the curatorial audience to seek revenue for their own websites </li></ul>
  8. 8. But the revenue models from the curatorial audience are not yet adequate for commercial production <ul><li>Commercial content still leads : Hulu.com has greater revenue than YouTube despite YouTube’s 20x lead in viewership </li></ul><ul><ul><li>“ The half-hour comedies … popular on Hulu (“Family Guy” from Fox and “The Office” from NBC) have an average of eight minutes of commercial time on TV. </li></ul></ul><ul><ul><li>On Hulu, where the sitcoms are especially popular, each show averages about two minutes of ads.” (-NY Times) </li></ul></ul><ul><li>Pricing : Hulu can charge premium ad prices for ad exclusivity, but increases are 10-40% rather than the 400% necessary to make TV and online revenue the same </li></ul><ul><ul><li>As viewers migrate from TV for same content, the pricing model must change (cheaper shows; subscriptions; download fees; etc.) </li></ul></ul><ul><li>Tracking : To demand advertising fees, companies are looking to make the advertising increasingly relevant to the consumer </li></ul><ul><ul><li>This can only be done by tracking the behavior (or “advertising channels, like Travel , Finance , or Luxury cars .” - Webwise.Phorm.com) </li></ul></ul><ul><li>RFID : These online suggestions do not even get to the next step - adding RFID and other non-Internet tracking data (yet) </li></ul>
  9. 9. Better ads are more highly personalized <ul><li>Contextual Advertising – ads that relate to the content on a particular site (e.g. a coupon for luggage on a travel site) draws its relevance to the content available to every viewer </li></ul><ul><ul><li>Relevance of advertising is preferable </li></ul></ul><ul><ul><li>No consumer information is sought or used </li></ul></ul><ul><ul><li>FTC sees no need to regulate </li></ul></ul><ul><li>Online Behavioral Advertising – “Online behavioral advertising involves the tracking of consumers’ online activities in order to deliver tailored advertising.” (FTC) </li></ul><ul><ul><li>“ The practice, which is typically invisible to consumers, allows businesses to align their ads more closely to the inferred interests of their audience.” </li></ul></ul><ul><li>FTC promulgates updated but voluntary guidelines </li></ul><ul><ul><li>Significant practices are recommended </li></ul></ul><ul><ul><li>FTC has only issued voluntary guidelines thus far </li></ul></ul><ul><ul><li>FTC does not extend to “first party” advertising, meaning that the guidelines do not apply to the company collecting the data for its own use </li></ul></ul>
  10. 10. FTC Behavioral Advertising Principles (February 12, 1009) <ul><li>1. Transparency and Consumer Control </li></ul><ul><li>Every website where data is collected for behavioral advertising should provide a clear, concise, consumer-friendly, and prominent statement that (1) data about consumers’ activities online is being collected at the site for use in providing advertising about products and services tailored to individual consumers’ interests, and (2) consumers can choose whether or not to have their information collected for such purpose. </li></ul><ul><li>2. Reasonable Security, and Limited Data Retention, for Consumer Data </li></ul><ul><li>Any company that collects and/or stores consumer data for behavioral advertising should provide reasonable security for that data. </li></ul><ul><li>Companies should also retain data only as long as is necessary to fulfill a legitimate business or law enforcement need. </li></ul><ul><li>3. Affirmative Express Consent for Material Changes to Existing Privacy Promises </li></ul><ul><li>As the FTC has made clear in its enforcement and outreach efforts, a company must keep any promises that it makes [so] before a company can use previously collected data in a manner materially different from promises the company made when it collected the data, it should obtain affirmative express consent from affected consumers. </li></ul><ul><li>4. Affirmative Express Consent to (or Prohibition Against) Using Sensitive Data for Behavioral Advertising </li></ul><ul><li>Companies should collect sensitive data for behavioral advertising only after they obtain affirmative express consent from the consumer to receive such advertising. </li></ul>
  11. 11. Deep searching and the semantic web <ul><li>James Geller, et. al., IEEE Computer Society: “Many organizations generate backend data that is dynamically retrieved through Web-form-based interfaces and thus not indexed by conventional search engines.” </li></ul><ul><ul><li>“ This hidden, invisible, and nonindexable content is called the Deep Web, and its size is estimated to be tens of thousands of times larger than the surface Web.” </li></ul></ul><ul><ul><li>“ A major goal of the Semantic Web is to facilitate the automation of e-business processes and services: Software agents (softbots) with rich semantic knowledge and reasoning capabilities automatically roam the Web, find data and services, and combine them to achieve business goals.” </li></ul></ul><ul><ul><li>Goals to improve deep searching are “gaining acceptance of an “open source attitude” in the e-commerce realm to make building Deep Web ontologies easier by accessing currently securely locked data sources; [and] creating libraries of semantic crawlers for the purpose of extracting back-end database information…” </li></ul></ul><ul><li>Deep searching can improve efficiency, increase access to content, etc. </li></ul><ul><li>Deep searching can be used to increase cross-referenced of personally identified information and expand behavior tracking for behavioral advertising or other identity searches </li></ul>
  12. 12. Jon M. Garon Amazon Consolidating content distribution through BookSurge, CreateSpace and Kindle <ul><li>Broader range of media and goods than any online competitor </li></ul><ul><li>Closely tracks user behavior to suggest new products and services </li></ul><ul><li>Kindle: Physical device sold at loss </li></ul><ul><ul><li>Wireless so ties user to site </li></ul></ul><ul><ul><li>Sells many e-books at loss to build affinity </li></ul></ul><ul><ul><li>Proprietary format </li></ul></ul><ul><ul><li>No need for computer – so no leakage in distribution pipeline from company to consumer (no middlemen) </li></ul></ul><ul><li>Vertically integrating all publishing </li></ul><ul><ul><li>Actively soliciting authors and publishers to sell exclusive ebook content in its format </li></ul></ul><ul><ul><li>Refusing to deal with other print-on-demand companies </li></ul></ul>Can Amazon monitor users reading habits and making recommendations for its products and services? Can Amazon scrape Netflix data to make better recommendations?
  13. 13. Scary but possible: eMelody <ul><li>Deep web searches use log-in password on other sites (since most people repeat passwords) – and the EULA even gives it permission to do so (just as financial aggregators do) </li></ul><ul><li>Track viewing of particular media viewed; religious behaviors; content read in news, blogs, etc.; purchases and travel; </li></ul><ul><li>Directs faux-ads to further test user behavior </li></ul><ul><li>Creates match recommendations on behavior rather than self-identified preferences </li></ul><ul><ul><li>eMelody knows more about you than your mother </li></ul></ul><ul><ul><li>eMelody knows more about you than you know about yourself </li></ul></ul><ul><li>Cookies enable the match site </li></ul><ul><li>to identify user’s actual behaviors </li></ul><ul><li>Individual’s own answers tested against trends in its database </li></ul>
  14. 14. Modest recommendations for a 12-minute presentation <ul><li>FTC Guidelines must become federal law, not merely best practices </li></ul><ul><li>New laws must reach any storage of personally identifiable information ( PII ) as well as reproduction and use </li></ul><ul><li>New law may be needed to protect PII from deep web searching </li></ul><ul><ul><li>Control : Allowing deep web searching should require same notice and opt-in consent as disclosure by site operator </li></ul></ul><ul><ul><li>Fiduciary Duties : Content repositories should have fiduciary obligations to assure that private data is protect from third party use in a manner consistent with the site’s own obligations and rules for third party usage </li></ul></ul><ul><li>New laws may be modeled after COPPA requirements that website operators obtain verifiable consent regarding information sharing and allow distribution only with express consent. See 16 C.F.R. § 312.4 </li></ul><ul><li>A European model would be preferable to voluntary guidelines, but it is unlikely to create affirmative fiduciary duties from deep searching </li></ul><ul><li>All governmental use of PII must meet same opt-in requirements or be accessed only with a bona fide search warrant </li></ul><ul><ul><li>Phishing for criminals and profiling should be prohibited by law </li></ul></ul><ul><ul><li>Honey traps must be narrowly built to avoid entrapment </li></ul></ul>
  15. 15. Conclusion – beware what familiarity breeds <ul><li>The trends bring great promise </li></ul><ul><ul><li>The harnessing of social trends for public predictions and consumer behavior </li></ul></ul><ul><ul><li>The growing role of the curatorial audience </li></ul></ul><ul><ul><li>The expansion of behavioral advertising </li></ul></ul><ul><ul><li>The development of tools to search “the deep web” </li></ul></ul><ul><li>But with these promises come potential for abuse </li></ul><ul><ul><li>Reassert privacy concerns </li></ul></ul><ul><ul><li>Full disclosure and opt-in use for behavioral targeting </li></ul></ul><ul><ul><li>Require protections from unauthorized behavioral data mining and deep searching of PII </li></ul></ul>
  16. 16. Professor Jon M. Garon Hamline University School of Law February 2009 Content, Control and Socially Networked Media Intellectual Property Scholars Roundtable Drake University School of Law

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