Trade Polls

A friend sent me a link to a compendium of polls an American views of the economy and foreign trade: http://www.pollingreport.com/trade.htm. There’s a lot of information but even a brief look reveals how we perceive our role in the world economy. Many Americans fear China, free trade, and global competition and would like to erect a wall, dig a moat, and raise the drawbridge on the rest of the world.

Rumplestilts-berg

Maybe Mark Zuckerberg’s youth–he’s 23–explains Facebook’s ham-fisted schemes to weave its users’ personal information into skeins of gold. I don’t believe his purposes are nefarious. As Facebook Beacon and Facebook Social Ads show, he does have a knack for letting dollar signs get ahead of his judgment. He is developing a skill for reversing field when what looked like a great idea around the boardroom table runs into the buzzsaw of user opinion.

First a recap. A few weeks ago Facebook announced Facebook Beacon, “a new way to socially distribute information on Facebook.”

The websites participating in Beacon can determine the most relevant and appropriate set of actions from their sites that users can distribute on Facebook. These actions can include posting an item for sale, completing a purchase, scoring a high score in an online game or viewing of video. When users who are logged into Facebook visit a participating site, they receive a prompt asking whether to they want to share those activities with their friends on Facebook. If they do, those friends can now view those actions through News Feed or Mini-Feed stories.

In other words, if a Facebook user lists items for sale on eBay or buys a movie ticket on Fandango, a pop-up asks whether the user wants to share this news–and on Facebook this is considered news–with their Facebook friends. The breathtaking narcissism of such newsy updates aside, Facebook Beacon takes a giant step towards a future when we will all be defined by the commercial value of our online data trail. Facebook stated “[i]n keeping with Facebook’s philosophy of user control, Facebook Beacon provides advanced privacy controls so Facebook users can decide whether to distribute specific actions from participating sites with their friends.” However, those “advanced privacy controls” are less assuring than promised. Yesterday a student and I read through Facebook’s user agreement and privacy policies to see whether one could elect not to participate in Facebook Beacon, other than by not using Facebook. Users can elect not to distribute to friends news of specific transactions, but to date there is no one-stop mechanism to opt-out entirely.

Facebook Social Ads are another part of the story. They “leverage the power of Facebook News Feed by serving relevant stories about friends engaging with your business.” Here’s how Facebook pitches them to businesses:

Reach the right people.

Instead of creating an advertisement and hoping that it reaches the right customers, you can create a Facebook Social Ad and target it precisely to the audience you choose. The ads can also be shown to users whose friends have recently engaged with your Facebook Page or engaged with your website through Facebook Beacon. Social Ads are more likely to influence users when they appear next to a story about a friend’s interaction with your business.

The concept is brilliant–every Facebook user can, through association with purchases, downloads, ratings, and other digital flotsam, become his or her own brand. Facebook “friends” (which should always be in quotes in this context) could follow my data trail and decide “my father is sort of like Professor Randall, so maybe he’d like a pound of Malabar Gold Espresso, No Country for Old Men (the book, not the movie–he’s old school, remember), and Lindsay Mac’s Small Revolution for his birthday.” Or, back in the real world, cool hunters will track young fashionistas to decrease the lag between cutting edge and The Gap. Clickstream data, just laying around waiting to be turned into skeins of gold.

Brilliant. Except for the backlash.

Facebook: What Would Google Do?: There is something astoundingly tone deaf about how Facebook has handled its recent advertising initiatives. Mr. Zuckerberg is right: there are lots of people who would find it cool to tell the world what movies they just rented and even what color socks they just bought. But they’ve got to know that others would find this intrusive. And they couldn’t have picked a worse way to implement the Beacon system first: automatically telling your friends everything you did on participating sites unless you found and pushed a button to cancel the disclosure. (This timeline shows how hard it was at first to figure out what was going on.)

Are Facebook’s Social Ads Illegal?: There is at least one problem with this idea: It may be illegal under a 100-year-old New York privacy law. The statute says that “any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained” can sue for damages. Moreover, such a use is also a criminal misdemeanor.

MoveOn Launches Privacy Campaign Against Facebook Social Ads: Calling Facebook’s new Social Ads strategy an invasion of privacy, MoveOn.org is asking Facebook members to sign a petition against the social network’s new ad plan.

Facebook’s “Fan-sumers:” Do Social Ads Violate Users’ Privacy?: [Law professor and privacy expert Daniel Solove] noted on his blog, “Facebook . . . assumes that if people rate products highly or write good things about a product then they consent to being used in an advertisement for it. Facebook doesn’t understand that privacy amounts to much more than keeping secrets — it involves controlling accessibility to personal data.”

Zuckerberg isn’t stupid, just surrounded by true believers who can’t view Facebook from outside the bubble. After ten thousand slaps upside the head Facebook has made Social Ads opt-in rather than opt-out. Under Pressure, Facebook Modifies Social Ads Program: “As of late Thursday, Facebook users must now proactively consent to alert friends whenever they take various actions, such as renting a DVD or purchasing a pair of sneakers . . . Now, as part of the changes enacted on Nov. 29, consumers who make such purchases will receive notices that Facebook intends to inform others about their actions—but only if they approve by clicking an “OK” button.” Problem handled, until the next wrong-footed product roll-out.

Timbuk2 and Target

A friend alerted me to this story: Timbuk2 announced plans this summer to make custom messenger bags by laminating recycled advertising material such as posters, billboards, and shopping bags. Timbuk2 advertised images of these Lamitron bags bearing the Target logo. Target responded with a cease-and-desist letter expressing “concern[] that [Timbuk2’s] use of [Target’s] famous Bullseye Design mark could give the impression that these bags originate from, or are somehow sponsored by, or are otherwise affiliated with Target . . . we request that you cease use of TBI’s Bullseye Design mark on your Lamitron bags.”

This dispute is the trademark law equivalent of a remix or mash-up of a copyrighted song and exists on the cusp between traditional trademark law and 21st century marketing. The lawyer in me understands why Target sent the cease-and-desist letter. Trademark law places the onus of trademark protection on the mark’s owner, who must guard against unauthorized use of the mark, whether infringing (likely to cause confusion about the source of a product) or dilutive (weakening the identity of the mark in ways that are not infringing). To a lawyer this is a classic slippery-slope problem. It Target lets Timbuk2’s use go unchallenged then the next unauthorized use becomes harder to challenge and, at some point, the Bullseye Design loses its association with Target and becomes another piece of worthless iconic flotsam on the sea of advertising images.

Idea City, a marketing and advertising blog, argues the other side: “Shame on you, Target. This is a new era . . . Timbuk2 may be another “company” rather than a “customer”, but what they offer you is a way to keep the Target brand relevant, fresh, and at the cutting edge of fashion and design. Why in the world would you ask Timbuk2 to remove your logo from their bags?” The lawyer’s retort is “because (1) Target, not you, gets to decide how to keep its brand relevant and fresh, (2) unauthorized use of the Bullseye Design will weaken its relevance and freshness, a result that does not harm you but harms Target deeply, and (3) allowing your use would be the first big push down the slippery slope.”

Trademark law shapes the environment in which the parties confront this issue, but its concerns are not the only ones. Creativity builds on the creations of others. Danger Mouse remixes The Beatles’ White Album and Jay-Z’s Black Album to create the Gray Album. Tom Stoppard takes two minor characters from Hamlet to create Rosencranz and Guildenstern Are Dead. Alice Randall reimagines Margaret Mitchell’s Gone With the Wind through the eyes of a slave in The Wind Done Gone. Timbuk2 takes found advertising images and places them in a different context by incorporating them into its Lamitron bags. Is Timbuk2 picking stuff at random from the cultural stream and giving it new meaning, or trading on the value of Target’s property? We know what the lawyers say and what the creative types say. Is there satisfactory middle ground?

Mission Not Accomplished

The text of the National Intelligence Estimate on terrorism answers the question posed yesterday: what has five+ years of the “war on terror,” hundreds of thousands of lives, and hundreds of billions of dollars accomplished? Constraint. The Estimate (only the Key Judgments portion of which has been declassified) “assess[es] that greatly increased worldwide counterterrorism efforts over the past five years have constrained the ability of al-Qa’ida to attack the US Homeland again and have led terrorist groups to perceive the Homeland as a harder target to strike than on 9/11.” (emphasis supplied) Courtesy of the New Oxford Thesaurus of English, to constrain means to restrict, limit, curb, check, restrain, confine, impede, hamstring, frustrate, stifle . . . That’s it. Such feeble results should compel reassessment of our strategy and adaptation to the apparent constraints on our greater success. Instead, this is what we get: “White House officials said [the threat assessment] bolstered the Bush administration’s argument that Iraq was the “central front” in the war on terror, because that was where Qaeda operatives were directly attacking American forces.” White House officials did not address the next logical question: Since they did not have a viable Iraqi presence before 9/11, why are Qaeda operatives in Iraq? To paraphrase George Mallory’s explanation for why climbed Everest, “because we’re there.” We plowed the furrows, planted the seeds, and provided the environment for al-Qa’ida in Iraq to thrive and become an ongoing threat to U.S. security. The threat assessment “assess[es] that al-Qa’ida will probably seek to leverage the contacts and capabilities of al-Qa’ida in Iraq (AQI), its most visible and capable affiliate and the only one known to have expressed a desire to attack the Homeland. In addition, we assess that its association with AQI helps al-Qa’ida to energize the broader Sunni extremist community, raise resources, and to recruit and indoctrinate operatives, including for Homeland attacks.”

Let’s sum it up:

  • Pros
    • al-Qa’ida operations constrained
  • Cons
    • al-Qa’ida organization rejuvenated and thriving in Pakistan
    • al-Qa’ida in Iraq created, and its abilities strengthened through years of fighting U.S. forces
    • Lebanese Hizballah may be more likely to attack U.S. if it threatens Hizballah or Iran

Internet and Crime

Three articles I read today about Internet crime created an interesting juxtaposition. A c|net article discussed the affordability of tools for sale to facilitate online criminal activity, a Washington Post article discussed how unsecured WiFi connections enable anonymous, roaming access for criminal activity, and a Wall Street Journal article (subscription required) discussed the prosecutorial trend of filing criminal charges in venues that are physically remote from the persons charged.

According to c|net RSA, which monitors transactions on websites and ICQ channels between providers and consumers of hacking tools, reported at a recent conference that the tools are becoming more sophisticated while their prices are falling. Vendors are offering bulk discounts: 1-10 purloined eBay accounts cost $5.00/each, but the price drops to $4.50/each for 10-50 accounts, and to $3.50 for another 50 accounts. The Washington Post article begins with the tale of police, armed with a warrant, closing in on a suspected pedophile who traded child pornography online. Their target location was inhabited by an elderly woman who had nothing to do with the crime, other than being the owner of the wireless router beaming broadband access throughout her apartment building. Apparently one of her neighbors–police could not trace who it was–gained access through her router. There are more than 46,000 public wireless access points around the country, making it easy to log in, do harm, log out, and move on. The Post quoted a law enforcement official: “It’s frustrating for officers . . . If a suspect is going from coffee shop to coffee shop and using free signals to commit crimes, the police probably aren’t going to catch him. That’s the reality.”

The Journal balances the bad-guys-are-winning theme. In the short history of Internet law one thing is axiomatic: the Internet is everywhere. Usually we discuss how the Internet’s ubiquity frustrates regulation. It also enables prosecutors to charge crimes against remote defendants. If a police investigator downloads child porn to a computer in Buffalo, New York from a man residing in Massachusetts, it does not matter that the defendant has never set foot in Buffalo: he can face prosecution there because the crime was committed there. A concern exists that prosecutors will chose venues that will be hostile–or at least inconvenient to–the defendant but, as one attorney notes in this article, “inconvenience isn’t a defense.”

Cartoon Consequences

The guerrilla marketing campaign for a Turner Broadcasting System cartoon show that prompted a Boston bomb scare this week has generated a lot of talk. So far the legal focus has centered on the two men hired by Interference, Inc., the advertising agency behind the campaign, to place the devices around the city. They’ve been charged with placing a hoax device (a felony) and disorderly conduct (a misdemeanor), both of which will be difficult for the state to prove according to an article in today’s Boston Globe. The same Globe article reports that Massachusetts Attorney General Martha Coakley is close to settling legal issues with TBS and Interference who, presumably, will pay their pounds of flesh and make formal mea culpas. Settling the matter quickly means there won’t be a full airing of possible legal claims in court which, while great blog fodder, would be in neither Turner’s nor the state’s interests.

A February 1 Globe article–the title of which captures its essence: Marketing gambit exposes a wide generation gap–stated “[t]he episode exposed a wide generational gulf between government officials who reacted as if the ads might be bombs and 20-somethings raised on hip ads for Snapple, Apple, and Google who instantly recognized the images for what they were: a viral marketing campaign.” Reactions to the campaign showed whether one belonged to the target demographic. A number of students said that the TBS campaign was wildly successful and therefore justifiable. They argued that TBS will likely earn far more in publicity than it paid to obtain, thanks precisely to the cluelessness of public safety officials. It was a great campaign, exceeding its aspirations. From more than a few students I heard “there’s no such thing as bad publicity.”

I did not and do not agree. Does the response justify the campaign? In every endeavor one always needs to ask: what could go wrong? How can my actions be misinterpreted? Failing to exercise due care to prevent the reasonably foreseeable injurious consequences of one’s acts is negligence. Whether one incurs legal damages, acting without regard to consequences is socially irresponsible. A positive cost-benefit analysis does not make it right.

Young people are so inured by the 12 billion ad messages they’ve received that marketers must whack them upside the head to get their attention. Some day, when Coke and Pepsi encode sales pitches on DNA molecules to insert in utero, today’s young folk can pine for that simple time of marketing devices taped to support girders on the Boston University Bridge.

“cRANKy”??

I followed a story today to cRANKy, “the first age-relevant search engine.” How does an age-relevant search engine differ from an age-irrelevant search engine? According to a press release dated today, cRANKy is “designed to deliver the most targeted search results by applying a 50-plus lens to every query . . .” The site is part of Eons, “a 50-plus media company” founded by Monster.com creator Jeff Taylor. In cRANKy’s world those who are 50+ want their data pre-chewed and still cannot process more than four pieces at a time.

I started my exploration with the “Top cRANKy Searches 2006.” Example: Top Search Number 3 is Body Mass Index. A cRANKy sidebar links to a list of its most popular search terms for 2006, which overlaps yet is different from the Top cRANKy Searches 2006: Alternative Health, Entertainment, Finances, Health/Disease, Hearth & Home, Hobbies / Fitness, Ones to Watch, Relationships, Travel Spots, Web 101. Selecting Ones to Watch in 2007 I found ten subtopics: Brain Builders, Stephen King, Blogs, Work From Home, Elderhostel, Make New Friends, Jobs After Retirement, Arthritis, Online Dating, and RVs. Putting aside the obvious that (save for Stephen King) these are not “ones to watch” but Trends, perhaps, an image began to form of the cRANKy demographic. I pictured a graying couple hopping from elder hostel to elder hostel in their RV, reading Cujo, completing Sodoku puzzles with their new friends, posting blog entries (“Five Fun Facts About Phoenix”), and making pin money by selling macramé plant hangers at craft sales. I followed the first BrainBuilder link to a results page with abundant white space. Two sponsored links appear at the top of page. Below are only four organic results, followed by another four sponsored links in smaller type. Finding additional organic search results required clicking to page 2 for results 5-8, to page 3 for results 9-12, and so on. The four-results page is a cRANKy selling point, its response to the sheer overwhelming mass of a typical Google search. (When was the last time you navigated beyond page two or three of Google results?)

How is cRANKy for general search? (As I do with other trademarks like iPod I’m trying to be fair and enter the mark as it is written, but its inelegance is off-putting). If, say, a cRANKy user wants to understand this “Facebook” her college-aged daughter is talking about, can she get her answer cRANKily? I entered “facebook” in the search field and received a query back–Did you mean factbook?–followed by the standard four results: number one to a Business Week article, number two to a Technorati page of blog posts tagged “facebook,” number three to the Wikipedia Facebook entry, and number four to facebook.com. Somehow I don’t think the cRANKy demographic will want to make sense out of the technorati page, but to be fair the site is new. It intends to rank results based on user feedback (how very Web 2.0-ish!) and in six months, perhaps, the results will better reflect the cRANKy spirit.

Would I recommend this search engine tricycle with training wheels to my 85-year old father-in-law or the residents of the continuing care retirement center on whose board I sit? Not yet.

Borat’s Easy Targets

I have not seen Borat: Cultural Learnings of America etc. etc. but I know Sacha Cohen’s Borat shtick from Da Ali G. Show. I ‘ve always found Cohen’s comedic setups, whether as Borat, Ali G., or Bruno, to be quite funny and very discomforting, relying as they do on the audience knowing what those interacting with Cohen’s characters do not: they are being spoofed. The appeal of inside jokes is that they draw a line between Us (funny!) and Them (incredibly clueless!). The problem with inside jokes is that when you move outside the comfort of your safe social circle you become someone else’s incredibly-clueless Them. So I agree, sort of, with an Op-Ed piece in yesterday’s New York Times:

The genius of Sacha Baron Cohen’s performance is his sycophantic reverence for his audience, his refusal to challenge the sacred cows of the educated bourgeoisie. During the movie, Borat ridicules Pentecostals, gun owners, car dealers, hicks, humorless feminists, the Southern gentry, Southern frat boys, and rodeo cowboys. A safer list it is impossible to imagine.

Cohen understands that when you are telling socially insecure audiences they are superior to their fellow citizens there is no need to be subtle. He also understands that any hint of actually questioning the cultural suppositions of his ticket-buyers — say by ridiculing the pretensions of somebody at a Starbucks or a Whole Foods Market — would fatally mar the self-congratulatory aura of the enterprise.(1)

As educated bourgeoisie who regularly patronizes Starbucks and Whole Foods, I have four things to say:

  • Ouch;
  • I agree that skewering Cohen’s targets is like shooting fish in a barrel,
  • My friends would pay full fare to watch Borat interact with customers and “sales associates” in our local Starbucks and Whole Foods Market; and
  • Borat didn’t earn $67.1 million in ten days from the mocha half-caf skim latte and lo-fat raspberry granola crowd alone.

(1) David Brooks, The Heyday of Snobbery, The New York Times, 16-Nov-06

The Cup Runneth Over

The problem in teaching Internet law is choosing what to cover. There is no such thing as “Internet Law,” not in the sense of an integrated body of legal principles such as contract law, tort law, or constitutional law. “Internet Law” might better be described as “The Legal System’s Response to Problems Arising from Use of the Internet and Digital Technology for Commercial and Other Transactions.” That’s a title certain to scare away prospective students, and still probably incomplete.

When Internet Law, or Cyber Law, entered the legal consciousness about eight years ago textbook publishers rushed a number of Internet law texts to market. I looked at all of them, tried out a few, and now don’t use any. One problem they shared was the lack of clear vision as to what they should cover. They spent time on topics like non-disclosure agreements for employees of tech companies or forms of business organization for Internet start-ups. These are interesting topics in an employment law or entrepreneurship course, but pose no issues unique to the Internet. Teaching this course requires guidelines to determine what topics are in and what are out. Two Internet law professors might use different guidelines and disagree about whether to include a particular topic. For instance, I don’t discuss patent law in my Internet law course. Patent law raises vitally important issues these days, such as the patentability of methods of doing business and the Patent Office’s need to vet prior art thoroughly, but in my view these cutting-edge issues do not turn on unique Internet characteristics.

Fortunately the news abounds with issues of Internet law. These are some of the stories that came across my desktop yesterday:

Darren Waters, Warnings over ‘broken up” Internet, BBC News, Oct-11-06 (reporting on concerns that countries such as China will tailor Internet architecture to their specific needs, resulting in “island of connectivity that have no inter-connectivity between them”)

Jonathan Bick, E-Communications Policy: Getting It Right, E-Commerce Law & Strategy (Law.com), Oct-12-06 (recommendations about employer policies governing employee use of “Internet, computer, and electronic assets” that recognize the ubiquity inherent insecurity of current methods of electronic communication)

Jack M. Germain, The False Promise of Browser Security, E-Commerce Times, Oct-11-06 (“Vulnerabilities are so embedded in any browser that surfing the Web is no safer than driving a tank through a mine field while blindfolded.”)

Does YouTube Make Google a Big Target for Copyright Suits?, The Wall Street Journal, Oct-11-06 (Discussion between John Palfrey, Harvard law professor and Director of the Berkman Center for Internet and Society and Stan Liebovitz, University of Texas economics professor and Director of the Center for Analysis of Property Rights and Innovation)

Susanna Hamer, Google’s big bet, CNNMoney.com, Oct-12-06 (Advertisers will use databases of personally-identifable information, tracking cookies, geo-location software, and other devices to deliver personally-customized video ads to Internet users)

Like I said, the problem in teaching Internet law is choosing what to cover. There is too much.

Dictionary Detour

In yesterday’s Internet Law class we discussed trespass to chattels, a centuries-old tort claim that courts have applied to cases involving unauthorized access to another’s computer system. (See, e.g., eBay v Bidder’s Edge; Intel v Hamidi) I mentioned that last spring’s class had a spirited debate about the correct pronunciation of “chattel.” Many class members wanted to pronounce it “sha-TELL.” I insisted that it rhymes with “rattle” and found support from the audio pronunciation feature of the Visual Thesaurus website. I said yesterday that using the word chattel is, like using the word estoppel, a dead give way that the user is a lawyer. (Those who complete crossword puzzles regularly know both words but, like most knowledge acquired through familiarity with crossword puzzles, are not likely to use them in normal conversation.) That led to a question about the origin of chattel which I turned back on the class. (“Like stepping on a garden rake,” see My Name is Earl, “Larceny of the Kitty Cat”)

Someone stepped up. The etymology of chattel and estop, courtesy of Jesse Rodgers:

Chattel, circa 1225, from the Old French “chatel” meaning ‘property or goods’. See “cattle”, which is the Norman-Picard form of the same word. Cattle, circa 1250, from the Anglo-French “catel” meaning property. From Modern Latin “captale” meaning property or stock. Also “capitalis” meaning principal, or chief (from caput, “head”). Original sense of the word was of moveable property, especially livestock but not limited to “cows” until 1555.
Estop: 1531, from the Anglo-French “estopper” to stop, bar or hinder (especially in a legal sense, by one’s declaration or prior act), from Old French “estoupe”, and then from Latin “stuppa” meaning a ‘tow’ used as a plug (stopping a flow of something?)
From the Online Etymology Dictionary www.etymonline.com

Thanks Jesse.