Posts In "Internet"

Internet




Warning to Good Wife Fans: Fake Product Reviews Are Less Legal Than They Appear

Hello, Law Law Land readers!  I took a blogging hiatus during the latter part of my pregnancy and early months of new parenthood, but I’m back.  While certain things in my life have changed, at least one thing remains the same:  my dedication to my favorite TV shows.  But having a 3-month-old means I’m always struggling to stay caught up with those shows, which is why this post discusses an episode of The Good Wife that aired in mid-February.  (If you are also a couple of episodes behind, spoiler alert!  And if you don’t actually watch this show and have no clue who any of these characters actually are, well, sorry.)

In this episode, called “Red Team/Blue Team,” Will and Diane attempt to persuade their stubborn client, purveyor of “Thief” energy drink, to settle a wrongful death lawsuit brought by the family of a teenage girl.  (Obviously, you can assume that the manufacturers of any product called “Thief” are only the most right-thinking, trustworthy clients you can find.)  In order to persuade the client of the weaknesses of the case, they conduct a mock trial, with Alicia and Cary serving as plaintiff’s counsel.  Research revealed that a freelancer engaged by the defendant company had acted as a cyber-shill, and had posted glowing reviews about the drink and its ability to help people lose weight on various websites, without disclosing any affiliation to the company.  (If you want to know what one of these posts look like, just check the comment thread on any unmoderated blog or news website for some unsolicited glowing reviews of various black market pharmaceutical websites.  V1agra, L0se W3ight, W0rk fr0M H0me, fR33 iP0ds!)  When Alicia cross-examines the company’s marketing executive about this practice, he protests, “That’s not illegal!”  Alicia agrees, but argues the company is still liable for a different reason (and of course, she’s our heroine, so it is).

But not so fast on that fake ads issue, my friends.  Maybe television writers don’t have time to research the latest FTC before turning in a script, but lawyers certainly do.  And, pursuant to the endorsement guidelines promulgated by the Federal Trade Commission, an online reviewer of a product must reveal any relationship with the seller, especially a financial connection.  And lest you think that, “surely the FTC doesn’t really monitor these things,” wrong again.  In the past two-and-a-half years, the FTC has become increasingly vigilant about the use of cyber-shills and deceptive claims.  This is especially true when there are health implications to the claims, such as in the case of the energy drink featured on The Good Wife.

As an extreme example, the FTC recently succeeded in ceasing the operations of certain online marketers that allegedly used fake news sites to increase sales of their products.  But the FTC also targets companies whose bloggers post reviews without announcing any affiliation, and significant fines can result (not to mention bad publicity and potential tarnishment of the brand).

As always, businesses should make sure they are being guided by the FTC guidelines and experienced legal counsel, not by TV lawyers.  And writers and producers of The Good Wife, if you ever need a legal consultant for your show, feel free to give me a holler.




“Where Are They Now”: Law Law Land Edition

This time last year, Law Law Land joined the hackneyed proud tradition of legal blogs offering year-end lists of cases to watch in the coming year (though in our defense, we did try to mix it up by reviewing totally absurd cases as well as totally important cases).  But “year in review” and “year to come” are cultural clichés that never held much appeal to me.  “Where are they now?” on the other hand?  That’s more my speed.  (Maybe that’s why I always adored the last five minutes of every episode of VH1’s Behind the Music, where the program would show the artist in their current, everyday life and tease the inevitable “impending comeback.”)  So what has become of those five big cases we told you to watch this year?  And did we pick good ones or not?  (Preview:  Yes, we did.  Oh shush, I don’t care if we’re biased.) Continue reading the full story . . . »




BaZynga!

Free-to-play games are all the rage these days.  Many people while away their days playing Angry Birds, or Words with Friends before going home to watch Monday Night Football.  Nerds — and, increasingly, “normal people” — do the exact same thing, except instead of watching football, we play games like Super Monday Night Combat.  This summer, the remarkable viability of the free-to-play business model gained extra attention when Forbes reported that the most-played PC game in the world is now a free-to-play game called League of Legends.  For those of you struggling to understand the profitability part, just take a look at League of Legends character Teemo (pictured left).  I mean, seriously, who can resist purchasing all the adorable “skins” for him?!  (Clearly, not me.)

Nevertheless, the business world of free-to-play gaming is not without its dark, seedy underbelly, where even the cute and cuddly characters are forced to work in digital sweatshops and sell virtual drugs on simulated street corners just to make ends meet.  Well, ok, maybe it’s not that extreme.  But as a recent (and bitter) dispute between game makers Zynga and Kixeye demonstrates, the gaming business can be just as ugly (and fascinating) as some of the game battles themselves.

Continue reading the full story . . . »




The Secret World of Copyright

What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?

Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.

The Simplest, Most Complicated Law You Know

Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms.  What’s a copyright?  The exclusive right to control and exploit creative works.  How do you infringe a copyright?  Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work.  Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint:  copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”

Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal.  (Headline:  “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)

To be fair, though, things started getting wacky long before the Internet was invented.  For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee).  Why?  Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters.  Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief.  (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have a different quirk of copyright law — the proliferation of blanket “public performance” licenses  managed by performing rights organizations ASCAP and BMI — to blame for those abominations.) Continue reading the full story . . . »




The Latest and Most Ungrammatical Courtroom Trend: Twitter

People are constantly getting fired or sued for stupid things they say on Twitter.  Last year, Aflac (which does 75% of its business in Japan) fired Gilbert Godfrey after he tweeted some insensitive jokes about the tsunami disaster in Japan, such as, “‘I just split up with my girlfriend, but like the Japanese say, ‘They’ll be another one floating by any minute now.’”  That same month, Chrysler dumped one of its contractors who tweeted from the company’s official account:  “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to [expletive] drive.”  And, of course, we all remember the greatest “–gate” of all, Weinergate.

But the really fascinating thing is that courts are starting to cite to stupid things people say on Twitter as relevant, substantive evidence.  (Yes, that stuff you use to sue the pants off people or convict them of homicide!)  These “Twitter” citations remind me of Dave Chappelle’s comedy routine about how our society pays too much attention to celebrity opinions.[1]  Or in this case, how a court could care about the opinions of Twitter users with names like “Dhat_Kid_DiCE” or “MrExclusive1990.”

I’m not saying the courts shouldn’t care.  It’s just funny that they do.  And since I know you’re already thinking twice about what you post on Twitter, here are some cases that might just make you think thrice.

Continue reading the full story . . . »




Why You Should Care That .Com Can Be .Anything

Time to panic?  The Internet is about to change dramatically.

Ever since Al Gore invented the Internet (or so I’ve heard), users have relied on a limited number of top-level domains, or “TLDs.”  A top-level domain is the end portion of a web address — e.g., .com, .net, .org, .biz, .gov, or, everybody’s newest, favorite, and most scandalous TLD, .xxx.  Last year, the Internet Corporation for Assigned Names and Numbers (“ICANN”) — a non-profit corporation/venue for nerds to rule the world that manages most TLDs, IP addresses, and basically anything that involves the interwebs — approved the creation of new TLDs called generic top-level domains, or “gTLDs”.  In announcing that move, ICANN cited the need to increase competition and choice in the world wide web (because we know that there certainly isn’t enough competition and choice in the entire Internet).  Any legal entity may apply to create and manage a gTLD.  And that’s why, as people are finally starting to realize, things might start getting a little crazy(er) on the Internet. Continue reading the full story . . . »




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