Why should speech traveling down Comcast’s wire to my computer enjoy better protection than that arriving via the same wire to my television? Consider this fact pattern:
A group of consumers, looking to stop GM from using bankruptcy to escape current and future product liability claims, seeks to make its cast to the administration via advertising. “If New GM cannot be sued for defects in cars sold by Old GM, then there will be far fewer claims and lawsuit data to report. Without that data, NHTSA’s ability to monitor and recall vehicles will be severely hampered, which puts public safety at risk. In addition, GM’s financial incentive to fix defective cars will be lessened if it is no longer responsible for injuries caused by those cars.”
They make a video, purchase advertising, and gain media reporting. (See video.)
They gain significant media attention. (WSJ coverage.)
Public Citizen describes this unfair pressure, and correctly asks, “What if Comcast’s cable enjoyed the same Section 230 protections as its hosting business?” (See the post.)
Contrast what would have happened if the ad had been running on a web site hosted by Comcast. Under section 230, Comcast would be absolutely immune from liability for any inaccuracies in the ad – even if GM had reason to argue that the consumers had deliberately falsified facts about GM instead of simply disagreeing about matters of emphasis or oversimplification. GM’s remedy would have been either to sue its critics – if it really thought it had a tenable defamation claim – or to post comments online explaining its position, or run its own web-based advertising to state its contrary views. Indeed, the ad can still be viewed on any number of web sites (such as here). In the circumstances, GM was able to suppress an ad during the time when the dispute was most controversial, and hence when the ad had the greatest potential to grab public attention and be most successful in advancing its sponsors’ political objectives.
Is it possible that mainstream media needs the kind of speech protections we’ve found so useful in nurturing online discourse? Again: Why should speech traveling down Comcast’s wire to my computer enjoy better protection than that arriving to my television?
In May, St. Louis Cardinals manager Tony La Russa filed suit against Twitter in California Superior Court, essentially claiming that someone using his name was posting comments that damaged his reputation and caused emotional distress. The suit also claims damage to La Russa’s trademark rights.
Ordinarily, I would have thought little about the case, believing it would get thrown out due to the legal precedent that says those who provide such services are not liable for the content that gets posted on them.
But there are two angles worth considering here. One is called the “right to publicity,” and the other is the evolving notion of digital identity.
The right to publicity is not a federal law, but many states do have it on their books, including California. The California law states:
The Republican Governors’ Association has launched an attack website against Democrat New Jersey Gov. Jon Corzine. The site, called the Corzine Times, is formatted to resemble the New York Times. The grey lady has sent a cease and desist letter to the Republican governors.
The demand letter claims trademark infringement, claiming that similar logos and formats create an impression of sponsorship and confusion about the site’s origin. It further alleges copyright infringement for using the Times layout and styles.
Examples of More Blatant Infringement Make the Governors Look Conservative
I’d offer the trademark claims are the most interesting. Any confusion caused by Corzine Times would be limited, as would the use of copyright in attacking a third party in parody.
You can see more blatant violations of the NYT’s copyright and trademark rights on http://www.nytimes-se.com/ which creates real confusion by using the NY Times’ name. And here Greenpeace infringes on both the International Herald Tribune and NYTimes to highlight their news. In both these cases, the infringement is obvious as they directly use another publication’s name to identify their work.
Censorship it easy to spot when China or Iran simply turn off media channels. However, in the US, well-meaning local agencies are also advancing censorship.
Want a job? Give us your social media passwords. The City of Bozeman, Montana, has a long-standing policy of requiring job applicants to provide usernames and passwords for “any and all current personal or business Web sites, web pages, or memberships on any Internet-based chat rooms, social clubs, or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc”.
National coverage has caused the city to reconsider the policy. Bozeman City Attorney Greg Sullivan said in The Daily Chronicle that the policy may change – instead of asking applicants for login information, applicants would be required to “friend” officials on Facebook so the city could see the individual’s profile, for example. What’s next, diary screening? Government employees have privacy too, right?
Update: On Monday night, the city issued a release (PDF) stating it would henceforth cease the practice of requesting candidates’ login information.
Old English font is NOT for teens The principal of the high school in Orange, California, has confiscated copies of a student magazine prior to publication. His main complaint about the latest issue of PULP concerns the cover, which features a faux full-back tattoo with the publication’s name and a picture of a panther, the school mascot.
The principal alleges that the image promotes gang life and might encourage students to get tattoos, singling out the use of OldEnglish font to create “gangster-style writing.” The principal agreed to allow the magazine’s publication if it carried an “anti-tattoo” message. This undercuts the legitimate gang concern, as tattoos don’t cause gangs, and are in fact a further form of self expression. Students can use any font they want, right?
When we’re not talking about online marketing and the law, we discuss Star Trek ethics, right?
Rebecca Tushnet raises this question in her 43(b)log related to the latest Star Trek movie.
She points out that Spock is an instructor at Starfleet Acadamy, and apparently has had a relationship with Uhura, who was at one point his top student. He assigns her to a less-desirable ship than his, to avoid the appearance of favoritism, then reverses his decision at her request so she can join him on the Enterprise, where this relationship apparently continues.
So, would Spock be on the wrong side of your employment or academic policies?
Jammie Thomas, a young mom who has become the Joan of Arc of file sharing, was found guilty of violating 24 song copyrights, and fined 1.92 million dollars, yep, about 80k per tune. Justice?
The jury found Thomas-Rasset’s conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000. In his closing statement, defense lawyer Joe Sibley made clear that even the minimum award would run $18,000 (24 songs x $750 = $18,000), an amount that he said was unfair and crippling to Thomas-Rasset. The jury decided that the per-song penalty would be $80,000, for a total damage award of $1.92 million, over $1.7 million more than the award in her first trial.
Expect this to be appealed on grounds of unconscionability. It will also fuel the PR disaster which has been RIAA’s prosecution of file sharers. Lawyers in this year’s two highest-profile file-sharing cases plan to file a class-action lawsuit against the recording industry to claw back the “$100+ million” they claim that the RIAA has “stolen.”
RIAA prosecution has been copyright’s song that never ends.
Professional services is a staple of airport advertising. But having seen this one at least one thousand times I still don’t understand how it sells Capgemini. Is the blue-suited lady the consultant, and is she inspiring her clients to disrobe? Or are the super hero-suited businessmen the consultants, and she’s their client or boss? Either way, it reminds me way too much of a scene from Charlies Angels than a Big5 Consulting ad should. These guys must cringe when they pass Accenture’s Tiger Woods ads.
Bon Bebe’s Poop Joke Cuts Through the Clutter, Then Gets Lost
They may know how babies think, but they are clueless about how ad viewers do. Bon Bebe uses a photo of a cute kid and a baby poop joke to draw attention. But then they get lost before explaining what they sell. Fortunately they mention their URL and phone number, so the alert traveler can note these and contact them later to ask what on earth they are doing with a toss-away ad.
Zappos and Its Ad in the Security Bucket
Sometimes the medium is the message. Advertising in the security bin I have to put my shoes is a great opportunity to point out my shoes areen’t what they used to be. Instead, internet darling Zappos inserts an ad which is oblivious to its unusual location. The graphic looks like an ad for a sports drink or gum. Why exactly should I put Zappos in my day? The ad is all about them.
The Elusive Effective Airport Ad: Thanks, United.
Amusing illustrations and lite copy gets United’s branding across without a bit of chest thumping. It’s rare to see great branding at the airport. In my opinion, this series rings the bell.
Get Your Beer, Get Your Trademarks
This ad announces there’s micro-brew for sale. But it reads “Beer Trademark Works.” Wouldn’t it be better just to use the little “tm” symbol, and put a picture of some beer in a frosty mug in the center of this logo?
Of all these ads, none of them actually show the product. That’s not always possible, but beer, baby clothes, and shoes are pretty easy to visualize. The first rule of sales in the shoe biz is “show them the shoe.” And it was Hannibal Lecter who said “We covet that which first we see.” This simple start could help make the creative for airport advertising more effective.
Last night, Jeffrey Hayzlett, Kodak’s Chief Marketing Officer, received the Business Marketing Association’s Marketer of the Year Award. Besides being a force in Kodak’s increased focus on business customers, he’s been a long-term contributor to the BMA and other associations that help elevate marketing.
Though this was shot from a few rows back, I hope you enjoy hearing about and from one of the real good guys in our industry. Congratulations, Jeffrey!
At the Quad Cities Ad Federation in Moline we discussed how sometimes related drivers combine to precipitate market trends, and ended up with a diagram that I’m calling a “bankshot.” The general pattern is that a predictable driver causes a predictable outcome, and a modifying outcome builds on that to create a second condition, which extends or modifies the first result.
Here are a few examples that I used to discuss online marketing macro-trends with the Quad Cities Advertising Federation. This was a fantastic gathering of practitioners, who are bringing home marketing campaigns to real-world clients in every medium. Anyway, here are some of the macro-trends in online marketing that we discussed.
Trend Analysis: Mass Market Adoption of Lead Generation
The less-forgiving economy has increased accountability for Chief Marketing Officers, who now experience an average tenure of 2.3 years. This demand to demonstrate results intersects with improved analytics and marketing automation technology. This trend seems likely to continue; I’ve recently spoken with several venture capital firms doing due diligence on investments focused on the lead generation marketplace. So the result of better systems and and more demanding business environment is a greater mass-market rush to adopt lead generation programs.
Trend Analysis: Social Media in Business
With its arrival on the cover of Time Magazine, Twitter has reached the top of Gartner’s hype cycle. If I see one more “Should Your CEO Twitter?” article I’ll just get silly. Still real businesses are very focused on figuring out how they can use social media, such as Facebook, viral video, blogs and the like to connect to customers. I’ve visited with several hotel and restaurant chains who are actively sorting out these issues. So what’s driving this need?
Traditional media is being redefined: mass market interruption is being displaced by new media on the Internet. This is disrupting traditional media business models. However, businesses that pay for media coverage still have business models that require them to aggregate audiences for expanding their markets and, increasingly, expertise to reach them directly.
This need (and a fair amount of “me-too marketing”) brought many firms online with their first websites. The best example I’ve seen of self-publishing is Deliver Magazine. The US Post Office prints and distributes an online magazine to encourage marketers to market to emerging segments and to make direct mail—using the post office, of course—part of any new campaign.
This self-publishing trend is extended by the popularization of self-made video and audio. See the CWS Self Cleaning Toilet Ad. As I’ve noted, users increasingly expect rich media on sites (see my earlier post, Reading is for Suckers). Now some companies are more like specialized media channels. This means they need to feed the content monster more regularly, which creates a business opportunity for those journalists displaced by the Media Redefinition that is the premise for this process. Continued
Why should speech traveling down Comcast’s wire to my computer enjoy better protection than that arriving via the same wire to my television? Consider this fact pattern:
The principal of the high school in Orange, California, has confiscated copies of a student magazine prior to publication. His main complaint about the latest issue of PULP concerns the 
When we’re not talking about online marketing and the law, we discuss Star Trek ethics, right?
At the Quad Cities Ad Federation in Moline we discussed how sometimes related drivers combine to precipitate market trends, and ended up with a diagram that I’m calling a “bankshot.” The general pattern is that a predictable driver causes a predictable outcome, and a modifying outcome builds on that to create a second condition, which extends or modifies the first result.
