“If we are to achieve a richer culture, rich in contrasting values, we must recognize the whole gamut of human potentialities, and so weave a less arbitrary social fabric, one in which each diverse human gift will find a fitting place.”
I want to thank our loyal readers who use ever-increasingly sophisticated search technology to find answers to Useless But Compelling Facts. If you are a winner, you will get a prize—I promise! To those who actually read the articles and send us work—thank you. I promise you high-quality, responsive, knowledgeable legal support—when and where you need it.
To clients, colleagues, prospects, friends—all who have enriched my life and helped me continue to learn—thank you for a challenging and interesting 2008. May the new year bring us health, success, new challenges and more fun. A 2009, filled with wonder and excitement. Let us have the patience to deal with what we cannot change, and let’s resist the temptation to think there is little we can change. Let us know tolerance to accept others who may be different, and wisdom to learn from them—there is both beauty and strength in diversity. Thank you.
Who would have thought that would refer to our financial system, real estate markets, building developers, technology providers and, lest we forget, automobile manufacturers. This was a year of challenge and change. America elected its first Afro-American President, who inherits a country involved in wars, economic turmoil of unprecedented proportions and a government tab increased by $1 trillion in the past 90 days. The NY Giants won the Super Bowl (and may do it again). The price of gasoline went from $2 a gallon to more than $4 a gallon to less than $1.50 a gallon this year, and the stock market experienced unprecedented swings, some days approaching 1,000 points; and fluctuations of anywhere from 200 to 600 points stopped being unusual—sometimes in the same day! No laughing matter, the Federal Reserve was doling out discount coupons for the purchase of investment banks, banks were buying brokerage houses, and non-banks were lining up to become regulated banks, just so they could share in the bail out fund. Indeed, the term “bail out,” once the domain of skydivers and sinking rowboats, became the most over-used word in the news (and in Congress). Speaking of domains, ICANN turned the world of domain names on its ear with its proposed Draft Applicant Guidebook (Legal Bytes; November 2008). Cyberwarfare no longer remained the domain of motion pictures like “War Games,” “Terminator” and “Matrix” when Georgian websites were under attack while Russians soldiers invaded the real Georgian sites. And speaking of Georgia, a court in the other state of Georgia upheld the validity of promotions held via SMS text messaging. Virtual worlds were in the news: divorces, theft of intellectual property, defamation, performance rights, even the murder of an avatar resulted in an arrest. “Green,” behavioral and children’s marketing, blogs, word of mouth and viral marketing occupied much of the discussion at the FTC; identity theft and data breaches continue to create privacy concerns; ad-blocking technology mounted an assault on interactive advertising; testimonials and endorsements created buzz, as did publicity rights, led by the estate of Marilyn Monroe (Legal Bytes; May 2008); a New York court decided that emails could amend a contract because they are “writings”; and the online, interactive video gaming industry, wireless advertising and content distribution, and the rise of processing platforms that serve as home computers, entertainment centers, Internet access and gaming portals—oh, and some are handheld and wireless. The fact that 2008 marked the 40th anniversary of the conception of the x86 device and the beginning of what we now know as personal computing—spawned by the obsession of a San Antonio engineer named Austin O. “Gus” Roche—and the 10th anniversary of the publication of my law journal article “Privacy on the Internet: Whose Information Is It Anyway?” went pretty much unnoticed.
For 2009, here are my predictions:
The economy and strife, regulation and surveillance will dominate the agenda, with the burden of paying for everything from wars to bailouts right in the crosshairs: watch those advertising budgets boys and girls, the taxman cometh.
Privacy and advertising, long separated by passive print, television and radio, will continue to collide—Congress will either pass ineffective and inappropriate legislation because it’s too busy to pay attention, or will defer legislation another year because it’s too busy to pay attention.
Wireless and mobile technology will continue to make us say “wow” and will continue to miniaturize our lives, putting not just communication, but also our wallets, calendars, purchasing, entertainment and working tool kits in our hands, not our laps.
The use of wireless and additional licenses, spectrum and bandwidth will bring the FCC and the FTC colliding in their zeal to regulate, and they will either cooperate because they are too busy to fight or fight because they are too busy to cooperate. In either case, regulation, re-regulation and self-regulation will continue to increase, unregulated.
Marketing, promotions, new media, digital content and distribution platforms will transform gaming and interactive play into entertainment, education and information—giving us more choices, but continuing to blur the lines between advertising, entertainment and information.
Move over “Dot Com” and other “dots” you have come to know and adore. Soon you may be able to purchase a top-level domain corresponding to almost any word or phrase, including your name or brand. ICANN, which administers domain names, is accepting comments on its new Draft Applicant Guidebook; but if you really want expert guidance and advice on what this means to you and why you should prepare yourself for the changes, read our bulletin Branded Dot Com Internet Domain Names, and then contact John Hines, our resident authority Advertising Technology & Media Law partner. Dot’s nice!
The NFL Players Association was recently ordered to pay $7 million in compensatory damages and $21 million in punitive damages to retired football players who claimed they were excluded from lucrative marketing deals. The class action claimed the “Madden” interactive football games, and deals involving sports card and sponsorships, intentionally scrambled images of retired players to avoid paying royalties. Active players received royalties for their images, but retired players’ images were scrambled. Now normally that might be a key question of fact to be determined by a jury. Unfortunately, there was a smoking gun! Someone at NFLPA wrote to Electronic Arts, publisher of the popular Madden games, explaining that unless they scrambled the retired players’ images, payments would be required. Oops.
The FTC is seeking comments to its proposed revisions to the Guides Concerning the Use of Endorsements and Testimonials in Advertising, last updated in 1980, and which define endorsements and testimonials: advertising messages reflecting opinions, beliefs, findings or experiences of someone other than the advertiser, and which consumers are likely to believe. The revisions propose changes to the way the FTC will interpret (and enforce) the Act:
Attention holiday shoppers. Not sure what to buy Aunt Matilda or cousin George? A gift card allows them to buy whatever they like? Maybe. Large retailers such as Sharper Image, Bombay Company and Linens ‘N Things have filed for bankruptcy or gone out of business, leaving behind millions of dollars in unused gift cards. In bankruptcy, money left on a gift card is treated as a debt, which the bankruptcy court can decide if it is to be repaid, and how. If the retailer stays in business, the court may allow it to continue to honor its cards, but even then consumers may not get the full value. Sharper Image, for example, was allowed to continue accepting gift cards, but only if the cardholder spent twice the value of the card in a single transaction. Bombay Company was allowed to pay its gift-card holders 25 cents on the dollar. If the retailer closes its doors, it is possible the consumer’s only recourse would be to file a claim and stand in line with the other unsecured creditors.
Want to know why gift card laws are such a maze? Check out the March 2008 issue of Credit Union Business (Vol. 3, Issue 3), in which nationally published freelance writer and attorney Ursula Furi-Perry reports on her interview with Legal Bytes editor, Joe Rosenbaum, in a feature article, “Plastic Law: What Executives Must Know.” Want to know more about what matters? Head to
rimonlaw.com or email me.
This month we are making it tougher. We would like you tell us what Gene Rodenberry, Smithers on The Simpsons, the sci-fi film Hangar 18, and the block-building game Jenga! all have in common. Think you know the answer, send it to me.