Adware? Spyware? Aware? Beware? Do You Care?

Intermix Media has reportedly agreed to pay $7.5 million to settle a lawsuit filed by the New York Attorney General, and if true, this represents the largest fine in a consumer online privacy action to date. In addition to agreeing to hire a Chief Privacy Officer, Intermix must agree to stop distributing its adware/spyware and redirect programs which the NYAG alleged were downloaded to consumers’ personal computers with inadequate notice, and then hidden to make it difficult to remove. Besides the annoyance which consumers rail about, often such hidden programs can be part of more elaborate identity theft and security breaches, sometimes without the knowledge of the company that created them. The lawsuit’s primary claims were false advertising and deceptive business practices under New York’s General Business Law statutes.

Ping Meets Pong

Whatzup with interactive, web-based digital video games? Plenty, if you believe what we read…coming up in the next issue, with struggling advertising revenues on TV and moviegoers’ increasing annoyance with the resurgence of advertising (which now seems to be replacing the 20 minutes of “coming attraction” trailers), advertisers are looking beyond product placement in reality TV shows and wondering if those captive eyeballs and fanatic game players can turn an interactive gaming industry into the next frontier of advertising. Not to mention those new chipsets and handhelds that are making video game graphics look almost like the real thing. Will virtual reality supplant reality and will promotional and advertising take us there? Stay tuned. [P.S.: This is called a “teaser.”]

Florida Law Relating to Print Advertising for Games of Chance is Modified

Florida’s Game Promotion Statute §849.094 has been modified, substantially reducing requirements for advertising games of chance in Florida—full rules are no longer required by Florida law in print advertising. Where previously a full set of full set of official rules for games of chance needed to be included in print advertisements in Florida, now advertising need only include “material terms” of the rules and regulations if the advertising includes a website address, toll-free telephone number or a mailing address where the full rules and regulations may be obtained.

The Internet Arrives at the Supreme Court (Again)

The U.S. Supreme Court will help decide how content providers will operate on the Internet. The first case, involving more than 20 entertainment companies with names like Viacom, Disney and Time Warner, involves the sharing of content such as movies, videos and music by computer users who download the content from the Internet. This case involves the issue of whether copyrighted material can be shared by users on peer-to-peer networks and, if the court follows the reasoning in the Betamax case which was decided back in 1984, there is a chance the court will decide that because these networks have substantial non-infringing uses, the network operators cannot be held liable for contributory infringement based on the conduct of individuals who use the network. Stay tuned—film at 11:00!!

The Supreme Court is also deciding a ‘gatekeeper’ case related to broadband service delivery by cable operators. Today, cable operators control the broadband portal or gateway that customers can use, and while a user can go through the portal and log on to another website (say Yahoo! or AOL), they still must first go through the cable provider’s designated broadband operator. The case coming up challenges that gatekeeping role and seeks to require cable operators to give consumers the right to pick the broadband connection they wish to have through the cable. We will keep you posted as developments unfold.

Outsourcing Statistics

According to Technology Partners International as reported in CIO magazine, Europe has now overtaken the United States in major outsourcing deals (i.e., deals valued in excess of about $50mm). In 2004, out of $76 billion in contract value, Europe garnered 49 percent beating the United States and Asia. One of the most important statistics behind those numbers is the fact that more and more outsourcing companies are becoming major players and the competition is heating up. The article lists the big-six outsourcing companies (you’ll have to call me to find out who they said they are) and notes that in 2003 these companies accounted for about 70 percent of the outsourcing contracts, but in 2004 their share dropped to just over 40 percent—a big drop in one year. What that means is that if 26 providers shared the 100 best deals in 2003, 36 shared them in 2004, and only time will tell if the outsourcing market is saturated or if more providers will jump to the front lines in 2005. One trend we are seeing is the segmentation of outsourcing arrangements by sophisticated end-user customers. Not just seeking competitive bidding among providers as in days past, these customers are actually segmenting their outsourcing requirements by function, business activity and operational needs, and seeking niche-based outsourcing providers who are best in the class in those areas.

It seems that the tempting idea of putting all one outsourcing eggs in one basket in order to make it “easier” to manage the relationship has not proved to be very smart after all. It appears that retaining the expertise necessary to manage outsourcing relationships in-house and being sure you have the right outsourcing provider with the right contractual relationship for each function or activity is the wiser course. Speaking of contractual relationships—Rimon has a team of international lawyers experienced in outsourcing. You might want to call us if your thoughts turn to outsourcing; we can and are happy to help. You might also go get a copy of the new book, Outsourcing Agreements Line by Line, written by me and published by Aspatore Publishing—it’s available online (an unabashed plug for both the book and our ability to assist with your legal needs).

Identity Theft Again?

Most of you have read about the security issues that have confronted LexisNexis and ChoicePoint, and each day we learn more news about more systems and databases that have been or may have been compromised. Here’s a secret, “Google hacking” is easier. It’s a term used to describe the simple act of using publicly available search engines (no, not only Google) to find information that criminals and wrong-doers can use.

Several months ago, The Wall Street Journal reported that some security experts held a contest to demonstrate how good Google hacking can be—they limited contestants to using only Google’s search engine and in less than one hour they unearthed enough information to perpetrate financial fraud on about 25 million people—including useful combinations of names, birth dates, credit card and social security numbers. In one such experiment, a team of contestants found a directory of more than 70 million social security numbers—all belonging to individuals who are no longer alive.

Yahoo! and Google and similar search engines are not the problem – these folks are continuously refining and fine tuning their search capabilities and adding more information. Why? Because we demand it; we like it; we want it. It is helpful; useful; convenient. So how do we balance the desire to have more and better information more easily available, with the need to protect our people, our customers, our society from abuses and improper use of such information? I don’t know. I do know that Rimon has literally dozens of lawyers who can help you with privacy, information security, terms of use and guidelines; can alert you to regulatory and legal issues; and can provide you with solutions to your problems, even when the simple answers are not always easy to find. Let us help you. Have an information security issue? Privacy compliance problem? Fraud or security breach? Now’s the time—before you are part of the problem.

Security Checks Out

OK. You’ve all been reading about the recent security breaches which are exposing sensitive financial and other non-public personally identifiable information to potential disclosure—in some cases actual release and compromise of that information. Well it turns out that in one area—the retailer cases involving Polo (Ralph Lauren), DSW (Shoe Warehouse) and others—are all being traced back to software that merchants use to process credit, charge and debit transactions. The problem, it seems, stems from the fact that the hidden coding that resides on the magnetic strip of our plastic money and that is supposed to authenticate and provide a degree of transactional security in processing payment is being retained by the merchants’ systems, rather than being immediately deleted and cleansed from these systems once the transaction is approved and complete. Hackers, learning of this vulnerability, were quick to attempt to break into these merchant systems and “steal” the codes, in many cases enabling them to create counterfeit plastic and compromise personal information of the cardholder in the process. In one case, BJ’s Wholesale Club is being sued by banks and credit unions because hackers made off with customer’s credit card numbers, and BJ’s has decided to sue IBM, whose software allegedly stored the numbers in computer logs. In legal papers filed in response to the suit, IBM not only claims there is no proof the stolen card numbers came from BJ’s systems, but it also claims that its contract with BJ’s disclaims liability for damages because of security breaches. OK, all of you go check your software contracts. Now.

While You Were Sleeping

In February, in the Circuit Court in Miller County, Arkansas, some plaintiffs—led by Lane’s Gifts, an Arkansas retailer—sued Google, Yahoo!, Time Warner, Disney, and Ask Jeeves, among other Internet companies, alleging that these companies knowingly overcharged for the advertising they sold and that they conspired with each other in doing so! The plaintiffs now want the suit certified as a class action which relates to the growing problem of “click fraud” a practice our very own litigator and legal guru Peter Raymond knows and has spoken about. Clicking ads or even automating the click-throughs—in some cases by competitors—can illegally run up the advertising charges, and analysts estimate these can increase by more than 15 percent because of such fraud.

Music On Hold—-Capitol Records, Inc. v. Naxos of America, Inc.

In a decision sure to be appealed but hailed as groundbreaking, the New York Court of Appeals, on April 5, 2005, held that rights to performances recorded before 1972 are protected under state common law, even after they have been put on the market. The ruling extends, until 2067, common law copyright protection for recorded music to companies that own rights to pre-1972 recorded performances. They can now prevent others from releasing their own versions. Since Congress did not extend statutory protection to recordings created before February 15, 1972, the court held there is common-law copyright protection in New York for sound recordings made prior to that date (i.e., since sound recordings made before 1972 are not covered by the federal copyright act, common law protection remains in place). In this case, Capitol’s claim against Naxos (who had remastered the recordings and began selling CDs) for infringement of common-law copyright in the original recordings was upheld. Common-law copyright traditionally has protected only unpublished works, but the New York holding concludes that the musical performances were unpublished, even though commercially sold to the public for decades. Go figure.

NY Pursues Spy and Adware—Deceptive Practices At Issue

On April 28, 2005, New York’s Attorney General sued Intermix Media—a major Internet marketer based in Los Angeles, claiming “spyware” and “adware” were secretly installed, which, among other things, can redirect browsers to unwanted websites, can add toolbar functions and icons, and distribute ads that pop up on your monitor. The suit alleges violation of New York State General Business Law provisions against false advertising and deceptive business practices, and also alleges trespass under New York common law. Intermix’ software would download, install and then direct advertising to computers based on user activity—often without notice and without an uninstall application—when a user visited a website, played a game or downloaded a screen saver. The Attorney General’s office claims that the lengthy licensing agreement purporting to seek permission, even when used, is misleading or inaccurate.