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The Pirate's Dilemma - SES London Keynote by Matt Mason

By Li Evans

Matt Mason, author of the Pirate's Dilemma spoke at the opening keynote of SES London. Prior to him speaking I got a chance to speak to him a little and I was really impressed with what a down to earth person Matt really is. That carried through to his presentation as well.

Matt started out by giving the audience some big picture overviews about Piracy by asking the audience how many of us knowingly pirate things and how many don't? Matt went on to point out it's not the piracy laws that we know that we break, but the ones we don't know we break every day. The audience seemed a little bewildered until Matt went on to point out that singing happy birthday in public, forwarding emails and photocopying books are all examples of piracy. If you calculated it all, 4.65 billion a year would be owed by each person for violating laws around piracy.

In the past, information use to flow in one direction but with the changes in society, technology and advancement with the internet, information is now flowing in a lot of directions and decentralization is happening. Piracy is having a great impact on businesses such as fashion, pharmaceuticals, and movies just to name of few industries, and its only just getting started. With the advent of the 3d printer and the fact that these printers are getting extraordinarily cheaper each year( a few years ago they were 21k, this year 1,800) as well as smaller and faster, piracy is becoming more and more a big issues companies face.

Does The NFL Not Understand the DMCA?

By Li Evans

Chalk this one up to "I should have read the fine print all the way through."  Once and a while, I find something on Digg that piques my interest and this morning it seems, the NFL just doesn't understand how to use the DMCA properly when sending out take down notices.  Apparently it also doesn't understand the full and broad reaching meaning of "fair use."  Enter law professor Wendy Seltzer.

Wendy, who started the Chilling Effects Clearinghouse website, was also a lawyer for the Electronic Frontier Foundation at one point in time.  Ms. Seltzer decided what better way to demonstrate to her class that the copyright statement the NFL airs before the Superbowl (and for any other football game for that matter) does not make exception for common fair use, than to demonstrate it on YouTube.

"This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited"

Her demonstration included putting a clip up on YouTube which did include the copyright notice (stated above).  Within a few days, YouTube sent her a copy of the NFL's DMCA order, which YouTube abides by (see Viacom, they do take things down).  The story doesn't end there though, Seltzer, a very well versed lawyer in DMCA law, sent a counter-notification using the "fair use" clause of the DMCA.  Again, YouTube abides the DMCA and replaces it.

Here's where things get interesting.  For all the "legal-eze" Ms. Seltzer has an explanation on her blog, but in a nutshell, since the NFL sent yet another DMCA request, they are now in violation of the DMCA.  Why?  Seltzer explains that because the NFL did not acknowledge the clip as fair use and sent another take down notice, they are now in violation of  the DMCA section 512(f)(1).  That section of the law states that sending another take-down notice over the same content is considered a knowing misrepresentation that the clip is infringing.  Yes, confusing for us non-lawyer types.  Maybe Kevin O'Keefe (my favorite blogging lawyer) over at LexBlog could chime in?

So what's next?  That I'm not sure of, but I'm going to keep an eye on Wendy's blog and keep you appraised of the situation.  This should prove very interesting, and I bet Viacom is going to be watching this closely, too, since Google/YouTube stance on the Viacom suit is "fair use."

Best Buy Under Investigation For Secret Website

By Li Evans

About a month ago George Gombassy from The Hartford Courant, had an article about Best Buy and about a teacher  who was trying to buy a laptop from Best Buy, because of a price he saw on their website.  When he got to Best Buy store, he was told the sale was "off", and the representative had the proof right there on his computer screen in the store.

The difference in price was enough to make that customer go to another store in search of another deal.  While at the other store, the teacher decided to look at BestBuy.com and see if the sale was really done, low and behold, it wasn't.  This time the teacher went over to another Best Buy store, he experienced the same thing, however, this time the teacher was smart - he actually went out to BestBuy.com himself and pulled up the sale.  Eventually he got the laptop at the advertised price on BestBuy.com - but why the difference between what the salespeople see "in store" and what is out on their public website?

It seems, that BestBuy.com isn't the only "website" the company has.  BestBuy.com has a duplicate site, but it's an intranet - meaning only accessible to the Best Buy stores.  The site looks exactly like BestBuy.com, but there's a difference.  Prices on this site, information about sales on this site and so forth are apparently different.  But here's the thing, it's not always more expensive, in one case of investigating Gombassy reported the price on BestBuy.com was more than what the intranet was showing.

Now, you might think, so what?  Well the FTC and many State Attorney Generals feel that practices like this are "deceptive" and tend to prosecute for them.  Gombassy reported yesterday that Connecticut's State Attorney General Richard Blumenthal ordered an investigation into BestBuy.com and the intranet at the Best Buy stores.

Blumenthal said Wednesday that Best Buy has also confirmed to his office the existence of the intranet site, but has so far failed to give clear answers about its purpose and use. "Their responses seem to raise as many questions as they answer," Blumenthal said in an interview. "Their answers are less than crystal clear."

Regardless of the outcome with the Connecticut State Attorney General, this is a lesson to be learned.  Consumers are growing more and more tech savvy every day, and deceptive practices really can harm your reputation online, along with getting you into hot water with the state or the FTC.  If you have some kind of "game" going on, don't be surprised if its a potential customer that "outs" you and not your competition.

There's a discussion about Best Buy's Secret Website going on in the blogosphere, but what caught my eye and found relevant about this story was that the state government is now involved.  From a "Search & Regulated Industry" look at things - it's important to note, if it seems to be a "deceptive marketing practice" and you're a huge retailer, you will probably be getting a phone call from your state capital or the FTC.

Four Major Weight-Control Pill Marketers Get Slammed By The FTC

By Li Evans

Just as the new year is settling in with a lot of people hoping to loose weight as a new year's resolution, 4 Diet Pill Marketers have reached a multi-million dollar settlement with the Federal Trade Commission (FTC).  The makers of Xenadrine EFX, CortiSlim, TrimSpa, and One-A-Day WeightSmart settled for a combine total of $25 million for Allegations of Deceptive Marketing.  It should be noted that the four companies have not admitted to any wrong doing by settling.  They just felt it was cheaper to settle out of court with the FTC than to keep pursuing the legal battle.

A little over a week ago I wrote about the states' attorney generals taking action against deceptive marketing practices on the internet, now we have another case of deceptive marketing brought by the FTC.  The FTC keeps a keen eye on the weight loss/vitamin/energy supplement market, so if you are selling Hoodia pills through deceptive means, the FTC might be breathing down your neck, next.

I highlight this industry in my presentation at SES on the Search & Regulated industry panel.  I bring up the vitamin/supplement area and the diet area as separate entities.  Of the two, diet by far gets the harder look at.  The FTC is quite serious about cracking down on diet pill manufacturers' deceptive marketing practice, so much so they have even set up their own "mini" website to help shoppers/dieters be able to pinpoint just what is a false or deceptive claim.  The website is aptly named "Red Flag".

There was no mention in the article of any of the marketing (internet or otherwise) companies nor webmasters involved with these products being fined in with this.  Nothing can be assumed from that however, other than the fines were directly to the producers of the pills.  It is possible for the FTC to bring suit against the marketing agencies and webmasters - if they feel the companies knowingly helped to perpetuate the deceptive marketing.

So, if you as a marketer for a client that is selling any type of product that is making claims that might seem a little outrageous, consult legal counsel before proceeding - it just might save you the headache of dealing with the FTC, when they think the claims are outrageous, too.

Who Handles Regulations in Internet Marketing? The FTC or State Attorney Generals?

By Li Evans

As a speaker on the Search & Regulated Industries panel for Search Engine Strategies, I tend to keep and eye out for "legal" or "regulation" items of interest that could affect Search Marketers in their efforts to promote their clients businesses.  While reading through some of my blog subscriptions, I came across a piece about the state of Illinois suing the software company iMergent (IIG).

The Illinois State Attorney General, Lisa Madigan, is bringing the lawsuit because the Attorney General's office believes that two companies operated by iMergent operated in a fraudulent manor, by misleading "consumers with false promises to set up online stores".  iMergent has categorically denied the the state of Illinois' allegations.

There's a reason I bring this to your attention.  More and more frequently we are seeing the individual state's attorney generals going after websites and internet marketers that are practicing deceptive tactics, not the FTC.  Although the official governing body over trade and commerce (including what happens on the internet) in the United States is the FTC, the individual states are taking up the cause of their state residents who are defrauded.  However, it isn't like like the A.G.'s are consistently scanning the internet for websites and marketers to target, they don't act on these types of cases unless they get enough complaints from its state residents.

So if you are operating an unethical and fraudulent business on the internet and think the FTC is never going to come down on you because "your small" or you think the FTC is "backlogged" - you have to look over your other shoulder.  Why?  Because your state's Attorney General could be tapping on it very shortly, just take a look at what New York's Elliot Spitzer has been going after (subscription required to view article, but free to sign up!).