Insights at the intersection of digital and mobile technology, innovation and the law
Just a quick reminder that next week, Rimon Law is sponsoring a complimentary series of CLE sessions.
Mine highlighted above is just one of a number of important and valuable sessions.
Find out more and follow the links to register, through my prior posting 2019 Rimon Law CLE Webinar Series.
According to the FTC: “The basic consumer protection statute enforced by the Commission is Section 5(a) of the FTC Act, which provides that “unfair or deceptive acts or practices in or affecting commerce … are … declared unlawful.” (15 U.S.C. Sec. 45(a)(1)). Safe Web amended Sec. 5(a) “unfair or deceptive acts or practices” to include such acts or practices involving foreign commerce that cause or are likely to cause reasonably foreseeable injury within the United States or involve material conduct occurring within the United States.”
Given that view and the FTC’s traditionally robust enforcement activities in areas of false, deceptive or misleading advertising, it is not surprising that most advertising, marketing and promotional professionals are familiar with section 5.
However, of lesser fame are pronouncements by the FTC in what is “unfair” competition – another segment of the authority vested in the Federal Trade Commission by section 5 of the FTC Act. This is the lesser-known part of section 5 that gives the FTC the authority to take action when it determines that “unfair methods of competition in or affecting commerce” may be deemed illegal – essentially an antitrust concept.
For the first time, the FTC, this past Thursday (August 13, 2015) released a single page “Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act“. Perhaps indicative of the challenges and internal discussions among the regulators themselves, the principles are short and, to many, appear to be a re-statement of what has already been the enforcement practices of the FTC in recent years concerning this provision of the Act.
The Commission announced it will follow three basic principles. In short, enforcement will be considered: (1) Using the same underlying principles that guide antitrust law – protection of consumer welfare; (2) if the practice causes, or is likely to cause, harm to competition or the competitive process, without any counter-balancing justification; and (3) if enforcement under the Sherman or Clayton Act is insufficient and independent action is considered necessary.
If you want to know more or have questions, please contact me or any Rimon attorney with whom you work.
Yesterday (July 6, 2015), the Social Media Law & Policy Report™ published by Bloomberg BNA posted my article entitled: “Beyond Legal: What You Should Know About Social Media Promotions.”
The article highlights some of the additional considerations advertising and marketing professionals (and their lawyers) need to take into account when conducting sweepstakes, contests and promotional activities on social media platforms.
You can read the article directly at “Beyond Legal: What You Should Know About Social Media Promotions.” , or download a copy for your personal use here: Rosenbaum – Beyond Legal (BNA Reprint).
Do you need to know more about advertising, marketing or promotions operating in the world of social media or on mobile platforms? Our legal team has broad and deep experience in virtually every aspect of advertising and marketing, traditional, digital, virtual on this world or in others, or any of the lawyers with whom you regularly work, at Rimon.
On April 27, I had the distinct privilege of presenting a session devoted to the legal implications of social media and mobile technology to the leadership of AHAA, The Voice of Hispanic Marketing at their 2015 Annual Conference.
You can read or download a copy of my presentation, “The Legal Implications of Social Media and Mobile Technology,” which focuses on some traditional advertising basics and some current issues that are “hot” in the brave new world of digital advertising and marketing. Of course, there are so many implications in this dynamic and evolving arena, that no presentation could ever hope to cover them all – or even remain current and timely for very long.
So if you are in the business and need guidance, counsel, and support from a legal team with broad and deep experience in virtually every aspect of advertising and marketing – traditional or digital, anywhere in the Universe – don’t hesitate to contact me, Joe Rosenbaum or any of the lawyers with whom you regularly work at Rimon.
Everyone knows there is competition, hype and controversy over nominations and awards at each year’s contest run by the Academy of Motion Picture Arts & Sciences. The competition culminates in an annual show broadcast around the globe and endearingly referred to as the “Academy Awards,” or simply the “Oscars” – referring to the golden statuette given out during the broadcast and evidencing the winners. In recent years, the hosts of the Oscar broadcasts – some controversial and others not – have changed almost as often as the tidy-whities displayed by Michael Keaton in this year’s Best Picture winner Birdman or (The Unexpected Virtue of Ignorance). But do you know the legal controversy surrounding the Oscars?
Here are the facts:
Ellen DeGeneres wanted to take a “selfie” together with some of the most famous people in Hollywood, and by “tweeting” the photo, it become the most re-tweeted Twitter post ever. The camera used for the selfie was a Samsung Galaxy Note 3. Samsung is one of the advertisers with the Academy of Motion Picture Arts and Sciences, and Samsung gave it to Ellen for promotional purposes at the event. We don’t know of any agreement between Samsung and either the Academy or Ellen DeGeneres regarding the device or any photos or messages using the Galaxy Note 3. We do know Ellen did not actually take the picture. To get everyone she wanted to fit into the picture, Ellen passed the camera to Bradley Cooper, who had longer arms. He got everyone in the frame and pressed the shutter.
Here is the photo and tweet that resulted, and which immediately went viral when posted on Twitter.
which she then ‘Tweeted’
Continue reading “…and the Oscar Selfie Goes To or (the Unexpected Virtue of Being a Fish)”
Yesterday (December 9), the Association of National Advertisers (ANA) released a study, “The Bot Baseline: Fraud in Digital Advertising,” exposing the significant fraud present in media buying on the Internet. The losses to the industry for fraudulent, non-human web traffic are billions per year. Doug Wood, Joe Rosenbaum, Todd Mumford and Debra Dermody worked with the ANA on the project, including suggested language for future contracts that addresses non-human web traffic. You can read and download the entire study or the executive summary originally made available to ANA members, entitled “ANA/White Ops Bot Fraud Initiative, Preview for ANA Member Participants” or both.
As always, if you have questions, need help, want guidance or want to know more about Rimon’s advertising, technology and media practice and its resources, experience and capabilities, feel free to contact me, Joe Rosenbaum (joseph.rosenbaum@rimonlaw.com), any of the other lawyers who assisted in the preparation of the report or any lawyer with whom you regularly work at Rimon (rimonlaw.com).
Earlier today, the Federal Trade Commission issued a press release indicating that after a review of many national television and print advertisements, warning letters have been sent to a number of companies – including some of the largest advertisers in the United States – noting that they had failed to make adequate disclosures in at least some of their advertising. The initiative, entitled Operation Full Disclosure, is intended to enforce regulations that prohibit advertising that misleads consumers.
The FTC’s targets in this operation are disclosures in fine print, those that were hard to read – even though they contained important information for the consumer. The letters warned advertisers they need to make sure disclosures are clear and conspicuous, and reminded advertisers the disclosures should be close to the claims that are being made. They must not be obscure or disguised with font sizes or colors that make it difficult to read, and on television, they should appear for a long-enough period of time and in a manner that will allow them to actually be read and understood. Consumers should not have to search for them!
Included within each of the FTC letters was a request that each of the advertisers respond back to the FTC with specific actions they individually intended to take regarding their particular advertising, in order to remedy any deficiencies.
You can read the full FTC Press Release and, as always, if you have questions, need help, want guidance, or want to know how best to ensure your advertising and marketing is in compliance with legal and regulatory requirements, just contact me, Joe Rosenbaum, any lawyer in our Advertising, Technology & Media law practice group, or the lawyer with whom you regularly work at Rimon.
Next Tuesday, May 13, 2014 at 1 p.m. EDT, the Association of National Advertisers (ANA) will be providing a complimentary webinar entitled:
Bot Fraud: How to Protect Your Company and Brand
Bots—computer-generated, phony website visitors designed to mimic real traffic and trick advertisers into paying for non-human traffic—are a serious problem for digital marketers, causing damage in terms of CPM, revenue, and reputation. As this problem grows more prolific (and the bot technology more sophisticated), it’s imperative for advertisers and marketers to learn how to protect their companies and their brands.
To register and learn more, visit the ANA’s website.
Date and Time: Tuesday, May 13, 2014, 1 p.m. EDT
Bot Fraud: How to Protect Your Company and Your Brand is part of a series of complimentary webinars from the ANA Government Relations group focused on legal and regulatory issues currently affecting the marketing community.
As we say goodbye to 2013 . . . .
For those of you who are loyal readers and followers of Legal Bytes, you know this is the time of year when I break tradition and write a non-legal, more personal and philosophical post for Legal Bytes. I am figuring that if the ancient Babylonians, who celebrated the New Year upon seeing the first new moon after the vernal equinox, could start a tradition that lasted for about 4,000 years – the least I could do was to try to keep up. Although my tradition doesn’t date back nearly that far, this posting will contain no hypertext links to distract you; it will not have citations to provide you with reference or background information; nor will it dazzle you with factoids or intrigue you with today’s news – legal or otherwise. This is my one chance each year to philosophize and dispense my thoughts and opinions – with absolutely no credentials, qualifications or expertise to do so.
There are, however, two traditions I will continue to perpetuate even though I did not originate either one. First, let me take this the opportunity to wish each of you, your families, friends, loved ones and yes, even an enemy or two, an enchanting and joyous holiday season and a healthy, happy new year, filled with enchantment and magic, health and joy, and prosperity and success. Second, as many of you know, for numerous years I have avoided a tradition of sending out mass mailings of cards and gifts – which are often lost in the flurry of the season, and delayed by the strain on the mail and package delivery services; and while we delude ourselves into believing it "personalizes" the warmth of the season – whether displayed for a few weeks and then put in a drawer, tossed in the trash bin immediately, or relegated to a closet filled with decades of Lucite, there was nothing really personal about that process. So as many of you may already know, I decided years ago to borrow a tradition an old friend told me about and I started making a contribution to a charitable organization for all the family, friends, loved ones, colleagues and acquaintances I want to honor, in memory of those we have lost this past year, near and far, and in recognition of those who have given me a reason to celebrate – clearly far too many to list. In that spirit, as I have done for a number of years, I have made a donation to the St. Jude Children’s Research Hospital. My way – perhaps naively – of trying to help some children in need, benefit from the kindness of a stranger.
So now, won’t you please pull up a chair, put your other distractions away for just a moment, pour a glass of your favorite beverage, sit back and enjoy . . . and as always, thank you.
When I thought about this year’s "philosophical" posting, my first inclination was to offer my humble opinions about the woeful state of intellectual property law and the challenges faced with the onslaught of digital technology. I thought about data breaches and wondered if what people really care about is privacy or data protection, or rather the inability to control information about us so that we can actually get a benefit from sharing information about ourselves. After all, I don’t really care if anyone knows I like popcorn, but at least give me a discount coupon for sharing that information with someone I don’t know! So many legal challenges – but then I thought, wait, this isn’t supposed to be a "legal" posting . . .
So I remembered just recently someone told me that everyone should listen to the Michael Jackson song "Man in the Mirror" at least once every month. I thought about what that meant – really listen to the words. Coincidentally, I keep hearing the John Lennon song "Imagine" playing at surprisingly frequent intervals this time of year. It occurred to me the entire season has a genre of music dedicated to the holiday spirit and the new year. Since I promised no hypertext links, I will resist – but did you ever wonder about the universal power of music that transcends culture, ethnic background, race, religion and all the things we believe separate and segregate us. Why is it that music can have such a powerful and magical effect on us – no matter what age or part of the world we are from.
Although no one asserts that music arose or was derived from the study of mathematics, mathematics is ultimately the basis of sound, being rooted in the frequency of vibration that is audible to the human auditory senses. Tone and pitch all can be expressed as mathematical frequencies. This is hardly new – ancient Chinese and Egyptians studied the mathematical properties of sound, and one of the earliest Greek mathematicians and philosophers, Pythagoras, actually correlated the length of the string to the vibrational frequency, and even expressed musical scales in terms of numerical ratios. In Plato’s time, one of the key branches of physics was "harmony," and early studies in India and China sought to show that mathematical laws of harmonics and rhythms were fundamental to our understanding of the world, as well as to our well-being. This time of the year, my interest in music is not in its mathematical properties, but rather in its ability to bring harmony to the world – one musical composition at a time.
Every culture on the planet has folk songs, musical instruments and rhythms, whether or not they include song or dance. Indeed, we launch music into space with explanatory mathematical symbols and algorithms in the belief that if there is life out there, they will view us as friendly and harmonious because of our music, rather than because of our unmanned space craft smashing into their planet!
Consider how important music is in almost every aspect of our lives. Although there are obvious examples of music put to nefarious uses – remember the 1971 Stanley Kubrick film, "A Clockwork Orange" – in most cases, music sets the mood, captivates us, and engages us in ways both explicit and implicit. If memory serves, the only television programming since the beginning of time that doesn’t have a theme song is the news program "60 Minutes" – announced only with a ticking clock (unless you consider that music). When the theme song to our favorite program announces the beginning of the program, everyone comes running to the screen (for years I thought the words "Hi Ho Silver" were actually part of the "William Tell Overture"). Who does not remember a wide variety of jingles and catchy tunes advertising products in advertisements of all kinds – from being stuck on Band Aids, to "loving it" at McDonald’s (which replaced "you deserve a break today").
Certainly in motion pictures, music has introduced us to aliens ("Close Encounters of the Third Kind"), has been the background for our investigation of the cycle of life and birth and the mysteries of the universe (witness Strauss and Wagner in "2001: A Space Odyssey"). Who doesn’t remember the stirring music from "The Magnificent Seven" or instantly recognize the introduction to every James Bond movie. Think about all the different types of music from around the world. Type "musical genres" into Wikipedia and you will get a listing of literally hundreds of types and styles of music. Every major (and some minor) city, town and village has a musical group – marching bands, barbershop quartets, street minstrels, symphony orchestras, rock groups and school recitals. Ever wonder why?
I’m happy to send you the link (not here) but one day, take a look at the clip on YouTube of a homeless young man making the audience (and the judges) cry on "Korea’s Got Talent," or 6-year-old Connie singing "Somewhere Over the Rainbow" on "Britain’s Got Talent," and making even Simon Cowell melt. Take a peek at the clip from the Andre Rieu concert at Parkstad Stadium in the Netherlands as he introduces 3-year-old violinist Akim, or a YouTube video of Ryan, only 11 years old, playing Chopin like a master.
These are obvious musical "tear jerkers" – sympathetic or extraordinarily young people with amazing talent. But my belief is that music and its universal appeal are deeply rooted in our human DNA and that music – a universal language that has transcended and often defied borders for centuries – has the unique ability to cross artificial boundaries and barriers that far too often seem to separate us and perhaps, bring us together. We humans, all of us, love music. I have no scientific evidence, but music is important. The power of music is too ubiquitous, has been around far too long and is simply too amazing to ignore. We associate life events with music that was playing at the moment. We love concerts, and while musical groups and styles may wax and wane, the one constant is that music in one form or another continues to fill stadia, concert halls and our lives. Music can make us calm or can call us to action; it can stir us and make us smile or melancholy. Its rich contours and seemingly endless complexity can make us feel happy when we are blue, and smile, even when we are walking in the rain.
In recent days, smart mobs around the world (sometimes referred to as "flash mobs" when they gather for seemingly random and pointless activities, only to disperse as quickly as they appear), have grown increasingly popular as expressive outlets for music of all kinds – from symphonic pieces to hip hop and recreation of theatrical production numbers. While the first modern-day, non-musical "flash mob" was the invention of Bill Wasik, a senior editor at Harper’s Magazine who, in June 2003, surreptitiously arranged for more than 100 people to gather on the 9th floor of Macy’s surrounding an expensive rug – everyone was told to tell the advances sales help that they were a group shopping for a "love rug," that they made purchases as a group and that they all lived together in a warehouse just outside New York City. Imitators soon popped up, but the most recent trend has been around music – sometimes accompanied by dance, marriage proposals, reunions and celebrations – but always celebrations of life.
I admit to being mesmerized by the coordination and harmonious talent of these seemingly unconnected people, even though I realize someone has coordinated (and often rehearsed) the effort. While I am happy to send you links (not here) if you don’t believe it, I have vicariously collected musical memories of a crowd in a food court singing Handel’s "Hallelujah Chorus," to a crowd singing Michael Jackson songs in Bucharest, Romania; from a flash mob in Central Station, Sydney, performing Riverdance on St. Patrick’s Day, to the a flash mob in Springfield, Illinois, performing Les Misérables; from a Bollywood performance on the streets of São Paulo, Brazil, to a Greek festival flash mob in Ottawa, Canada; and yes, a medley of ABBA songs from "Mama Mia" performed on an Israeli beach, to Norwegian Soldiers dancing to Michael Jackson’s "Thriller."
I want to take this opportunity to wish family and friends, colleagues and acquaintances, clients and adversaries, those who know me far too well and even those who don’t have a clue how they got on this email list, health, peace, comfort and joy this holiday season and in the year ahead. May those who love you come closer and those who dislike you forget why. Most of all, I wish all of you the extraordinary feelings of joy and harmony that come with music, whether sitting alone with your headphones or next to someone on a park bench, perhaps through music we can change the world . . . one noisy note at a time.
So as 2013 comes to an end, I will break my own rule and share a link in this column – or perhaps not a link, but a gift. The gift of music. I leave you with the "Ode to Joy" from Beethoven’s 9th Symphony. Instantly recognizable, incorporating the words of the poet Friedrich Schiller: Alle Menschen werden Brüder, Wo dein sanfter Flügel weilt (All men shall become brothers, wherever your gentle wings hover). Take five minutes out of your busy day because, just as the lyrics of "Man in the Mirror" suggest, "no message could have been any clearer. If you want to make the world a better place, take a look at yourself and then make that Change!"
Warm regards for the holidays and best wishes for the new year. Sincerely – Joe Rosenbaum
At this time of year, many of us are celebrating holidays and spending time with family, friends and loved ones. Getting ready to bid farewell to 2013 and looking forward to the coming of 2014 – a new year. Some of us even hope we can keep those new year resolutions that might last longer than a week or two.
Although we shouldn’t take it for granted at any time of year, this is one of those seasons we seem to use to pause and reflect on where we have been and where we are going. We think of those who have touched us; those we missed and some we would prefer to forget. We remember those no longer with us and marvel at the miracle of each life born into the world this year. We reflect on friendships through which we have grown, and appreciate those who have helped us on our journey through 2013. This time of year also gives me an excuse to say thank you and to express appreciation to those who have enriched my life. If you are reading this, you are part of my audience – part of the fabric of my professional life; and like the threads of that fabric, I am grateful for your readership and, in some cases, your friendship. I am always appreciative when you take a moment to read, hopefully gain some insight, and perhaps be a little entertained.
I especially want to thank the people at Rimon who support my efforts – people like Erin Bailey, Lois Thomson and Rebecca Blaw who make this blog happen. You don’t see them; but I do. They help make Legal Bytes come alive. They are amazing professionals and awesome people. Thank you so much. You make it look easy and I could not do this without you!
I would also like to thank Carolyn Boyle at the International Law Office (ILO) – the force behind motivating me to push content into the U.S. Media and Entertainment Newsletter; and while I can take credit for the substance and for nagging my colleagues to contribute, without her, thousands of readers who enjoy the links and insights would be waiting far too long for Legal Bytes content. Thank you.
So as 2013 comes to a close, please accept my appreciation and gratitude to each of you – staff, support, contributors and, most of all, the readers of Legal Bytes. My best wishes to each of you, your families, friends and loved ones, for a wonderful holiday season and a terrific new year, filled with health, happiness and success.
