Tech Law Prof Blog

Promotion Marketing Association Law Conference: Report From the Field Part Two

One thread of discussion to come out of the Promotion Marketing Association Law Conference was the fragmentation of media distribution, and hence the opportunities of marketers to effectively disseminate ads to consumers.  The industry recognizes that eyes are shifting to the Internet and to content available via traditional computer set-ups, portable wireless devices, cell phones, MP3 players, hard drive recorders, and any combination of these items.  Broad thinkers at the conference believe that the holy grail of device convergence will take place at some point. 

We have seen it before when technologies become entrenched and it seems as if nothing will ever replace them.  Television is like that.  Then video recorders arrived, first Beta, and then VHS.  Beta died an early death and VHS seemed as if it would stick around forever, at least in 1990.  The only people who buy VHS machines are the people who want to copy old tapes to their DVD recorders.  Even that activity is pointless given the amount of television shows that are available for purchase on disc, unless one feels that the commercials are quaint.  Now DVD and DVD burners replace tapes, and DVDs are starting to be replaced by High-Definition television and two new hi-def disc formats.  New televisions are more like computers than traditional sets with rabbit ears.  How long before these last before they are modified and consolidated with features that will put them in the living room.  The vision of what comes next may be a bit fuzzy, as well as the time it takes.  But consolidation into that ubiquitous device that combines video, audio, entertainment, communication, and games is coming.  And it will be supported by ads.  Another vision mentioned as anticipated is that land lines will likely disappear for most consumers in about five years.  Everyone will use cell phones.  Five years ago that would be though outrageous.  Today the prospect doesn’t seem as unlikely, whether or not it comes true.

There was some speculation that content we now pay for could be free in an ad supported environment.  This may already be taking place.  Universal Music Groups announced a while back that they were going to build an ad supported site that would give away music.  They recently struck a deal with YouTube to distribute Universal owned media.  Even if the money comes from YouTube/Google, ads are paying the fees.

The related discussion thread was getting the best bang for the buck given the delivery options for content.  That led into privacy rights, data collection and retention, targeting consumers, and data breaches.  Lest anyone doubt it, the Federal Trade Commission is highly concerned about identity theft.  Collecting and retaining consumer data is not a good or bad idea, nor is targeting ads to consumers on the basis of this data.  Exposing data to potential breaches, not following good practices in terms of encrypting data or keeping it secure is a problem.  That’s where the Commission has the greatest concern. 

Just during the days around the conference UCLA had a major hacker breach, and Boeing lost a laptop with sensitive employee data on it. Thirty-some states have laws on the books dealing with this, with some federal legislation covering the issue.  However, there are expectations that this next Congress will address the use of citizen data that may pre-empt state laws.  Senator Patrick Leahy, the incoming chair of the Senate Judiciary Committee promised legislation on the issue.  Whether the Senate remains in democratic hands (that depends on the health of Senator Tim Johnson of South Dakota) will not likely deter some type of legislation from being seriously considered this term.  Panelists predicted that some type of comprehensive federal legislation will eventually be enacted.  The question really is where the balance between marketing and consumer rights will take place.  Let the lobbying begin.

All in all, the ideas of the panelists and the speakers were highly provocative with far-reaching implications for the tech industry.  Whenever I’ve given any type of lecture covering Internet-based legal research, I remind the audience that the Internet was not designed as a public service to disseminate government information and legal material.  Oh, it’s not that anyone regrets the ability to research.  It’s just that the technology and the incremental developments that streamline web surfing are designed to sell us movie tickets, DVDs, books, electronics, and other material goods.  From my perspective, government information on the web is a secondary purpose.  I have not changed that view after this conference.  Just wait for the day when a JSTOR subscription becomes cheaper when the search results come to you with a message from the good folks at Coca-Cola.  That's not a panelist prediction, but one of mine.

I’ll write a short warp-up on the conference on Friday.

Promotion Marketing Association Law Conference: Report from the Field Part One

The 28th Annual Promotion Marketing Law Conference was held at the Marriott Downtown Magnificent Mile in Chicago yesterday and today.  The meeting was held by the Promotion Marketing Association and sponsored by Greenberg Traurig, Loeb & Loeb LLP, and Manatt.  Many of the featured speakers and panelists were drawn from major law firms, corporations, and regulatory agencies.  Their presentations focused on the legal ramifications of advertising, where technology was taking the markets, and the present and future of regulations, particularly with data preservation and privacy laws.

So where to marketers, or more specifically, their lawyers, think marketing and advertising is going.  We know it’s on the web, but the web changes so fast compared to traditional media that the trends come and go at lightning speed.  The presentation by Ron Urbach (Davis and Gilbert LLP) highlighted the internationalization of media and the diversification of media channels.  The rise of interactive content (YouTube and others) has great potential and impact on ad campaigns. 

The potential is there as advertisers can reach people who have fled over the air broadcasts and even cable for online and portable entertainment.  The impact is through the design of ads and media for these platforms.  Viral advertising is more than creating an online buzz.  It may also involve the consumer in actually creating the ads and distributing them through various web channels.  This raises copyright and standards issue in that consumers don’t always present products in the best light.  Consumers don’t always respect the copyright laws when assembling music and video images in a promotion.  Nor do consumers respect where they post their final product.  That’s one reason why everyone in the room is concerned about the Universal lawsuit against MySpace.  No one wants their brand to be involved in intellectual property disputes where they have little or no control over the presentation.

Another development that advertisers are keenly aware of is the rise of online social networking.  This is another trend that seemed not to exist about two years ago.  Now everyone is concerned about it because they want to go where they eyeballs go.   If anything, the buzz in the foyer between shows found the words “social networking” coming up in a lot of conversations.

The conference covered a lot more issues than this.  There were major presentations revolving around data retention and privacy by Joel Winston of the Federal Trade Commission, panels on sports contracts, and other types of technologies used in advertising on the web and traditional media.  I’ll be reporting on the rest of the content over the next few days as I digest it.

I do want to point out some things about the meeting that I thought were particularly good.  The coordination of the meeting was excellent.  The written materials are a great legal analysis of the state of marketing law as it currently exists.  There are over 1,000 pages of text and virtually all of it useful to practitioners and academics alike.  The accompanying CD ROM has many of the inserts as PDFs and also has a lot of sample forms of agreement for advertising and entertainment.

The audio and video that accompanied each speaker was striking.  Much of it was produced by outside video production houses and integrated with PowerPoint presentations via scripts.  Those handling the audio and video chores did a great job integrating these elements.  The over all impression was that these presentations were entertaining as well as information, and the support staff who made it work are real pros.

I’ll be reporting on other issues that came up at the conference over the next few days.

RIM Sues Samsung Over Smartphone Trade Name

Here's another lawsuit over trade names.  Research In Motion is suing Samsung over the word "black" in the name of a new smart phone that Samsung is distributing.  That's the BlackJack that's getting Samsung in trouble, as RIM alleges the offending trade name tries to ride the coattails of the ever popular BlackBerry.  Close?  Not close?  You make the call until a judge in the Central District of California renders a decision, or until the case is settled.  Blackjack, the game, is not involved in this suit.

Stories are in TechNewsWorld, The Globe and Mail, and Ars Technica.

Hackers Expose 800,000 to Identity Theft

Another data loss to hackers places personal information at risk for 800,000 UCLA staff, faculty, and students.  That includes Social Security numbers, home addresses, birthdays, and contact information, but no financial information.  There's just enough loss here to place a lot of people on edge for identity theft.  Investigations continue as to how this all happened.

The breach was discovered on November 21, 2006, and had began sometime in October, 2005.  That;s a long time in computer years.

Stories are in CNET, Information Week, and the San Jose Mercury News.