The Perils of Social Media Under the Laws of the United   The Perils of SocialStates and Canada: A Cautious Tale for Lawye...
Seminar Overview           WHAT IS SOCIAL MEDIA?           WHERE DO YOU FIND IT?           HOW ARE MARKETERS USING IT? ...
What is Social Media?  Social media is the use of web-based and mobile  technologies to turn communication into interactiv...
OverviewSocial Networking, UGC, MMOGs© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketing is Affec...
What is UGC?    “User generated content (UGC) refers to various kinds    of media content that is produced or primarily in...
Types of User GeneratedContent Sites – Blogs    Blogging Sites    “A blog is a user generated website    where entries are...
Types of User GeneratedContent Sites(Written Cont’d)Wiki Sites“A wiki is a website that allows visitors to add, remove, an...
Types of User GeneratedContent Sites(Written Cont’d) Administered  Wiki Response to  manipulation© 2011 Wildman, Harrold...
Types of User GeneratedContent Sites(Video)      Video Posting Sites      “Video sharing refers to websites or software wh...
Examples of Places to Find UserGenerated Content(Video Cont’d)            youtube.com                            pagefla...
User Generated Advertisements continued- Doritos and Pepsi MAX “Crash the Super Bowl”© 2011 Wildman, Harrold, Allen & Dixo...
Types of User GeneratedContent Sites(Hybrid)© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketing i...
© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketing is Affecting Your Company   13
Types of User Generated Content  (Hybrid Cont’d)MashUp: A Mashup is a new type of web application that brings together sev...
MMOG – Virtual Worlds 13 Million people WW regularly play  MMOGs (mmogchart.com) World of Warcraft (9M WW);  EverQuest; ...
MMOG Examples© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketing is Affecting Your Company   16
The Scale of the Market  “US online ad spending in 2010 will rise by 13.9%, reaching a record  $25.8 billion. But records ...
Projections For Digital Advertisingfor 2011-2013    At the same time, internet advertising continues to grow    at breakne...
Widgets & WebApps© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketing is Affecting Your Company   19
User-Generated Advertisements Over the past few years, Super Bowl ads have included consumer-  generated advertising, suc...
User Generated Advertisements continued                                                                   Nesquik UGC     ...
Legal Issues Relating to Behavioral Advertising© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketin...
FTC Report:December 2010© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketing is Affecting Your Com...
What is Behavioral Advertising and Who isInvolved    Behavioral targeting is a technique used by online publishers and ad...
What are “flash cookies” and HTML-5 Code    Flash cookies, are collections of cookie-like data stored as a file on    a u...
What If We Are An Advertiser Who Wants  Ads Served Through OBA?             Ability to comply is going to depend heavily ...
Behavioral Advertising continued      The “Power I” Icon (Announced January 2010)             Starting mid-summer 2010, m...
Behavioral Advertising cont.      The “Power I” Icon (Changed in March 2010 and Released in )© 2011 Wildman, Harrold, Alle...
How the In-Ad Notice Works         Logo in Ad:                          Hover over logo:                             Click...
Behavioral Advertising is on Mail Portals© 2011 Wildman, Harrold, Allen & Dixon LLP.   Web 3.0: How Digital Marketing is A...
      Facebook announced April 19, 2010 the roll        out of its new “Like” function.          "Like" or "Recommend" i...
      2007 when Microsoft bought a 1.6% stake in        Facebook, which valued it at $15 billion.        Facebook had pra...
Self-Regulation: What is Happening Outside  the US?       EU EASA Best Practice Recommendation on Online Behavioral      ...
Behavioral Lawsuits   Valdez v. Quantcast, MTV, NBC      Universal et al (C.D. Cal. July      23, 2010)   Plaintiffs filed...
Behavioral Lawsuits:             White v. Clearspring Technologies, Disney Internet Group, Warner              Bros. Reco...
Mobile-web Advertising Company SuedSeptember 2010 for Behavioral Advertising           Ringleader Digital mobile-web adve...
Interclick is Sued on December 17, 2010            Interclick is the latest ad network facing a class action lawsuit over...
Mobile Apps – Behavioral AdvertisingLawsuits (December 2010)           Freeman v. Apple was filed in a northern Californi...
Arkansas State Computer Tresspass(December 30, 2010- January 10, 2011)           17 consumer class actions              ...
LEGISLATION – THREE BILLS INTRODUCEDINTO CONGRESS FEBRUARY 2011     JACKIE SPIEIR: DO      NOT TRACK (February      11, 2...
Things to Do     Find out whether the client has flash cookies.     Sensitize them to the issues.     Be up to date on ...
Discussion                                              © 2010 Wildman, Web 3.0: & Dixon Digital                          ...
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The Perils of Social Media Under the Laws of the United States and Canada: A Cautious Tale for Lawyers and Clients

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The Perils of Social Media Under the Laws of the United States and Canada: A Cautious Tale for Lawyers and Clients

  1. 1. The Perils of Social Media Under the Laws of the United The Perils of SocialStates and Canada: A Cautious Tale for Lawyers and Clients and Canada: A Cautious Tale for Lawyers and Clients August 4, 2011 Presented by Dominique Shelton Complex Litigation | Business Transactions | Intellectual Property | wildman.com © 2011 Wildman, Harrold, Allen & Dixon LLP.
  2. 2. Seminar Overview  WHAT IS SOCIAL MEDIA?  WHERE DO YOU FIND IT?  HOW ARE MARKETERS USING IT?  WHAT ARE THE LEGAL ISSUES  Copyright and DMCA  CDA Immunity  Trademark  Behavioral Advertising  Regulatory Compliance© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 2
  3. 3. What is Social Media? Social media is the use of web-based and mobile technologies to turn communication into interactive dialogue. A common thread running through all definitions of social media is a blending of technology and social interaction for the co-creation of value.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 3
  4. 4. OverviewSocial Networking, UGC, MMOGs© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 4
  5. 5. What is UGC? “User generated content (UGC) refers to various kinds of media content that is produced or primarily influenced by end-users; as opposed to traditional media producers, licensed broadcasters, and production companies.” Wikipedia.com© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 5
  6. 6. Types of User GeneratedContent Sites – Blogs Blogging Sites “A blog is a user generated website where entries are made in journal style and displayed in a reverse chronological order. Blogs often provide commentary or news on a particular subject, such as food, politics, or local news; some function as more personal online diaries. A typical blog combines text, images, and links to other blogs, web pages, and other media related to its topic.” Wikipedia.com© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 6
  7. 7. Types of User GeneratedContent Sites(Written Cont’d)Wiki Sites“A wiki is a website that allows visitors to add, remove, andotherwise edit and change content, typically without the needfor registration. It also allows for linking among any numberof pages. This ease of interaction and operation makes a wikian effective tool for mass collaborative authoring.” Wikipedia.com© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 7
  8. 8. Types of User GeneratedContent Sites(Written Cont’d) Administered Wiki Response to manipulation© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 8
  9. 9. Types of User GeneratedContent Sites(Video) Video Posting Sites “Video sharing refers to websites or software where a user can distribute their video clips. Some services may charge, but the bulk of them offer free services.” Wikipedia.com Practice Pointer: Master use, synch and public performance licenses for the music.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 9
  10. 10. Examples of Places to Find UserGenerated Content(Video Cont’d)  youtube.com  pageflakes.com  twitter.com  popcurrent.com  buzznet.com  pixsy.com  Blip.tv  singingfish.com  digg.com  tagworld.com  friendster.com  typepad.com  flixya.com  videobomb.com  magnifynetworks.com  current.tv  mymoviefest.com  livevideo.com  myyahoo.com  Veoh.com  Metacafe.com  Mywaves.com© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 10
  11. 11. User Generated Advertisements continued- Doritos and Pepsi MAX “Crash the Super Bowl”© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 11
  12. 12. Types of User GeneratedContent Sites(Hybrid)© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 12
  13. 13. © 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 13
  14. 14. Types of User Generated Content (Hybrid Cont’d)MashUp: A Mashup is a new type of web application that brings together several sources of data to form aunique new combination of information. Mashups originated from the world of pop music where DJs wouldmix two or more songs together to present a new blended version. Source: Sorena Software. © 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 14
  15. 15. MMOG – Virtual Worlds 13 Million people WW regularly play MMOGs (mmogchart.com) World of Warcraft (9M WW); EverQuest; Final Fantasy XI; Sims Online; City of Heroes; Linage; Second Life; Legend of Mir; Habbo Hotel, etc. Virtual Goods generate “real value” in “real world” due to supply and demand and secondary exchange (IGE) and “gold farming” Google buys Adscape (in game ad technology) Business models include sales of gameplay (whether through subscription, access fees, software/hardware sales, game token sales), sales of virtual goods, and sale of virtual currency.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 15
  16. 16. MMOG Examples© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 16
  17. 17. The Scale of the Market “US online ad spending in 2010 will rise by 13.9%, reaching a record $25.8 billion. But records are made to be broken. In each of the following four years, internet ad spending will hit new peaks, passing $30 billion in 2012 and breaking the $40 billion barrier in 2014. Another milestone: For the first time, online ad spending will surpass newspaper advertising, which eMarketer estimates at $25.7 billion for 2010. That makes internet advertising second only to TV among measured media.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 17
  18. 18. Projections For Digital Advertisingfor 2011-2013 At the same time, internet advertising continues to grow at breakneck pace, at a forecast average rate of 14.4 percent annually between 2010 and 2013. Zenith is forecasting newspaper ad spend to fall from $95.2 billion in 2010 to $91.2 billion in 2013, while internet ad expenditure rises from $63 billion to $94.5 billion over the same period. Reported by Zenith: Global Forecast Revised Down; But Display Remains ‘Invigorated’ http://paidcontent.org/article/419-zenith- global-forecast-revised-down-but-display-remains- invigorated/#© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 18
  19. 19. Widgets & WebApps© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 19
  20. 20. User-Generated Advertisements Over the past few years, Super Bowl ads have included consumer- generated advertising, such as campaigns from Coors, Toyota, the NFL, Frito-Lay and GM. Issues: Regulatory compliance and infringement Quizno’s UGC Contest: Lanham Act Claim by Subway Doctor’s Assoc. v. QIP Holders, 82 U.S.P.Q.2d 1603 (D. Conn 2007)© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 20
  21. 21. User Generated Advertisements continued Nesquik UGC Advertisement • Creation/Posting – Inducing or contributing to infringement – DMCA / CDA Issues – Disclaimers / Disclosures • User’s Use – Viral / CAN SPAM – Control • Your Use – Identify underlying rights – Clear underlying rights and claims – Value of indemnity? – Union Shop Issues© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 21
  22. 22. Legal Issues Relating to Behavioral Advertising© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 22
  23. 23. FTC Report:December 2010© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 23
  24. 24. What is Behavioral Advertising and Who isInvolved Behavioral targeting is a technique used by online publishers and advertisers to increase the effectiveness of their campaigns. Behavioral targeting uses information collected on an individuals web-browsing behavior, such as the pages they have visited or the searches they have made, to select which advertisements to display to that individual. Practitioners believe this helps them deliver their online advertisements to the users who are most likely to be interested. Behavioral marketing can be used on its own or in conjunction with other forms of targeting based on factors like geography, demographics or the surrounding content. Behavioral targeting allows site owners or ad networks to display content more relevant to the interests of the individual viewing the page. On the theory that properly targeted ads will fetch more consumer interest, the seller may ask for a premium for these over random advertising or ads based on the context of a site. Wikipedia.com© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 24
  25. 25. What are “flash cookies” and HTML-5 Code Flash cookies, are collections of cookie-like data stored as a file on a users computer. LSOs are used by all versions of Adobe Flash Player and Version 6 and above of Macromedias now-obsolete Flash MX Player HTML, which stands for Hyper Text Markup Language, is the predominant markup language for web pages. HTML is the basic building- blocks of webpages …HTML is written in the form of HTML elements consisting of tags, enclosed in angle brackets (like <html>), within the web page content …The purpose of a web browser is to read HTML documents and compose them into visual or audible web pages. The browser does not display the HTML tags, but uses the tags to interpret the content of the page. Wikipedia.com© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 25
  26. 26. What If We Are An Advertiser Who Wants Ads Served Through OBA?  Ability to comply is going to depend heavily on our vendors  Ad agency: will be pulling together all the vendors  Ad network: will be serving the ads  Data aggregators: will be giving data to make targeting work  Publishers: will be the sites where the ad appears  Worth negotiating with vendors to ensure OBA is not happening  If dont want it to happen, make sure they arent doing things that would impact your obligations  Need to make sure there is notice  Can appear in the advertisement itself (the logo, if have license from DAA)  Self-regulatory program also requires notice on your own website • Our ads are served on other sites based on OBA  Provide ability to opt-out  Can link from notice – would take people to the central www.aboutads.info/choices page  Describe how to opt out now or later  Consistency  Ensure that OBA activity is consistent with information use disclosed in posted privacy policy and in initial notice  Communicate policy requirements to internal customers© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 26
  27. 27. Behavioral Advertising continued The “Power I” Icon (Announced January 2010)  Starting mid-summer 2010, many major companies running online ads will add the “Power I” icon, with small notes that say “Why did I get this ad?” When the icon is clicked, users will reach a page explaining how the advertiser used the consumer’s internet surfing history and demographic information to display an ad. The “Power I” Icon is the result of discussions between trade associations, major companies and the FTC. It is a direct response to the FTC’s calls for greater self-regulation and recent congressional interest in behavioral advertising. The purpose is (a) to notify consumers that online behavioral practices are followed on a particular web site; and (b) to provide opportunities for consumer choice.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 27
  28. 28. Behavioral Advertising cont. The “Power I” Icon (Changed in March 2010 and Released in )© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 28
  29. 29. How the In-Ad Notice Works Logo in Ad: Hover over logo: Click link: A hyperlink get brief disclosure Takes you to notice© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 29
  30. 30. Behavioral Advertising is on Mail Portals© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 30
  31. 31.  Facebook announced April 19, 2010 the roll out of its new “Like” function.  "Like" or "Recommend" icons will start appearing on popular websites spanning a variety of industries, including NYTimes.com, IMDb, CNN.com, TIME.com, LIFE.com, Fandango, NHL.com and ABC.com.  Currently Facebook targets ads based on information users provide including location, age, gender, favorite activities and music.  Like function will allow users to signal what content they like on the internet.  Like function will be rolled out to engagement ads.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 31
  32. 32.  2007 when Microsoft bought a 1.6% stake in Facebook, which valued it at $15 billion. Facebook had practically no revenue back then.  Over 550 million users. And, after “Like” feature.  Facebooks value has shot to $50 billion. In a private placement Goldman will take a $450 million stake, and Digital Sky, which already holds a position, will invest an additional $50 million, according to the The New York Times http://srph.it/dXUyBQ© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 32
  33. 33. Self-Regulation: What is Happening Outside the US?  EU EASA Best Practice Recommendation on Online Behavioral Advertising  Finalized April 12, 2011  At the beginning stages, framework for members to take back to their countries  Includes non-EU members (Australia, Brazil, Canada, Chile, Peru, India, New Zealand, South Africa)  Very similar to the US approach  Also prohibits OBA to kids  May help fend off potential negative impact of cookie directive, if widely implemented in time© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 33
  34. 34. Behavioral Lawsuits Valdez v. Quantcast, MTV, NBC Universal et al (C.D. Cal. July 23, 2010) Plaintiffs filed class action against ABC, MTV Networks, NBC Universal and Quantcast for use of flash cookies on plaintiffs’ websites to track consumer behavior© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 34
  35. 35. Behavioral Lawsuits:  White v. Clearspring Technologies, Disney Internet Group, Warner Bros. Records et al.) (C.D. Cal. August 10, 2010)  NBC and Warner Bros Records sued due to widgets.  $3.25 Million Settlement – No payment to class© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 35
  36. 36. Mobile-web Advertising Company SuedSeptember 2010 for Behavioral Advertising  Ringleader Digital mobile-web advertising company was hit Wednesday with a proposed class action lawsuit over its use of an HTML5 trick to track iPhone and iPad users across a number of websites, in what is believed to be the first privacy lawsuit of its kind in the mobile space.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 36
  37. 37. Interclick is Sued on December 17, 2010  Interclick is the latest ad network facing a class action lawsuit over the now-infamous practice of “history sniffing” – using flash cookies and hidden code to secretly monitor the activity of online users and see what websites theyve visited.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 37
  38. 38. Mobile Apps – Behavioral AdvertisingLawsuits (December 2010)  Freeman v. Apple was filed in a northern California federal court and targets applications such as Pandora, Dictionary.com, The Weather Channel, Toss It, Text4Plus, Talking Tom Cat and Pimple Popper Lite. Lalo v. Apple was filed in federal court in San Jose, California and seeks class action status for anyone who has downloaded an offending application between December 2008 and December 2010. Similar to the first lawsuit, the Lalo vs. Apple suit targets Pandora, Paper Toss, The Weather Channel and Dictionary.com. Apple is included in both suits as the App Store approval process makes the company an "aider and abetter" to the deceptive practices of these applications. The lawsuits stem from a recent Wall Street Journal Investigation that revealed several iOS and Android applications were transmitting age, gender, location and device identifier information to third-party advertising companies.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 38
  39. 39. Arkansas State Computer Tresspass(December 30, 2010- January 10, 2011)  17 consumer class actions  McDonalds  Nordstroms  Reebok  TV Guide  E-Trade  State law  Removal Barriers:  Under jurisdictional limits for CAFA and diversity© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 39
  40. 40. LEGISLATION – THREE BILLS INTRODUCEDINTO CONGRESS FEBRUARY 2011  JACKIE SPIEIR: DO NOT TRACK (February 11, 2011)  BOBBY RUSH: PRIVACY BILL (February 10, 2011)  FINANCIAL PRIVACY (February 11, 2011)  SENATE BILLS© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 40
  41. 41. Things to Do  Find out whether the client has flash cookies.  Sensitize them to the issues.  Be up to date on industry standards.  Ask questions of your vendors and obtain indemnities /reps and warranties for privacy related claims.© 2011 Wildman, Harrold, Allen & Dixon LLP. Web 3.0: How Digital Marketing is Affecting Your Company 41
  42. 42. Discussion © 2010 Wildman, Web 3.0: & Dixon Digital Harrold, Allen How LLP. Marketing is Affecting Your Company 42© 2011 Wildman, Harrold, Allen & Dixon LLP.

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