Sunday Series: Which Sports and Fitness Brands Speed Ahead?

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Image from: Yoga / Shutterstock

With summer in full swing, we compiled ten fast movers in the sports and fitness retail category. The group of sites is doing very well: it had 39 million Unique Visitors (UVs) in May, up 11.8% year-over-year (YOY). Interestingly, the peak shopping season for sporting goods is not in the summer, but in December, correlating with holiday shopping and winter sports. What are Americans shopping for over the summer? Golf gear, pool and boat maintenance retailers were some of the fastest growing sites in May–not to mention camping and hiking outfitters. had the highest traffic, beating out competing sites,, and

The one site that I was surprised to see on the list was, a high-end yoga apparel brand. Though the smallest site on the list (35,104 UVs), it grew 63% month-over-month in May. The demographics of its visitors in May were unexpected: 58.4% of visitors were male, 24.5% (the largest age group) were 55-64 years old and 44.2% earned a yearly income over $100,000. Perhaps a lot of husbands ordered Mother’s Day presents from prAna in May.


June 30th 2013 News

Thinking about money

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Many marketers work overtime to confuse us about money. They take advantage of our misunderstanding of the time value of money, of our aversion to reading the fine print, of our childish need for instant gratification and most of all, our conflicted emotional connection to money.

Confusing customers about money can be quite profitable if that’s the sort of work you’re willing to do.

A few things to keep in mind:

  1. The amount of money you have has nothing to do with whether or not you’re a good person. Being good with money is a little like being good with cards. People who are good at playing cards aren’t better or worse than anyone else, they’re just better at playing crazy eights.
  2. Money spent on one thing is still the same as money spent on something else. A $500 needless fee on a million-dollar mortgage closing is just as much money as a $500 tip at McDonalds.
  3. If you borrow money to make money, you’ve done something magical. On the other hand, if you go into debt to pay your bills or buy something you want but don’t need, you’ve done something stupid. Stupid and short-sighted and ultimately life-changing for the worse.
  4. To go along with #3: getting out of debt as fast as you possibly can is the smartest thing you can do with your money. If you need proof to confirm this, ask anyone with money to show you the math. Hint: credit card companies make more profit than just about any other companies in the world.
  5. There’s no difference (in terms of the money you have) between spending money and not earning money, no difference between not-spending money and getting a raise (actually, because of taxes, you’re even better off not-spending). If you’ve got cable TV and a cell phone, you’re spending $4,000 a year. $6,000 before taxes.
  6. If money is an emotional issue for you, you’ve just put your finger on a big part of the problem. No one who is good at building houses has an emotional problem with hammers. Place your emotional problems where they belong, and focus on seeing money as a tool.
  7. Like many important, professional endeavors, money has its own vocabulary. It won’t take you long to learn what opportunity cost, investment, debt, leverage, basis points and sunk costs mean, but it’ll be worth your time.
  8. Never sign a contract or make an investment that you don’t understand at least as well as the person on the other side of the transaction.
  9. If you’ve got a job, a steady day job, now’s the time to figure out a way to earn extra income in your spare time. Freelancing, selling items on Etsy, building a side business–two hundred extra dollars every week for the next twenty years can create peace of mind for a lifetime.
  10. The chances that a small-time investor will get lucky by timing the stock market or with other opaque investments are slim, fat and none.
  11. The way you feel about giving money to good causes has a lot to do with the way you feel about money.
  12. Don’t get caught confusing money with security. There are lots of ways to build a life that’s more secure, starting with the stories you tell yourself, the people you surround yourself with and the cost of living you embrace. Money is one way to feel more secure, but money alone won’t deliver this.
  13. Rich guys busted for insider trading weren’t risking everything to make more money for the security that money can bring. In fact, the very opposite is starkly shown here. The insatiable need for more money is directly (and ironically) related to not being clear about what will ultimately bring security. Like many on this path, now they have neither money nor security.
  14. In our culture, making more money feels like winning, and winning feels like the point.
  15. Within very wide bands, more money doesn’t make people happier. Learning how to think about money, though, usually does.
  16. In the long run, doing work that’s important leads to more happiness than doing work that’s merely profitable.


June 30th 2013 Uncategorized

Comic for June 30, 2013

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Dilbert readers – Please visit to read this feature. Due to changes with our feeds, we are now making this RSS feed a link to

June 30th 2013 Uncategorized

Tesco Redefines Social Drinking With Community-Created Wine

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Wine’s reputation as a social drink is being taken literally by Tesco, the U.K.’s biggest supermarket chain, which is launching a “socially created” wine selected and designed by Tesco’s social-media community.

The wine, which will be made with grapes from South Africa, will also help the Enaleni Community to build a sustainable future by using grapes from the region.

The first step was inviting wine bloggers and members of Tesco’s social-media community to a wine- tasting event June 26, where they were given a choice of five wines to judge. The three red and two white wines are all made with different grapes picked by the Enaleni community. The community grows grapes but has never been able to afford to produce and market its own products, and until now has had to sell all its fruit to local wine producers.

Continue reading at

June 30th 2013 Uncategorized

The Weekly Compete Pulse

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Here’s a round up of our favorite digital marketing stories from the web this week:

Digital ad spend grows, but what about investment? A new infographic from Invesp tells a story that most marketers are familiar with; more advertising and marketing dollars are spent on digital, and Google is winning most of them. It also shows that 53.5% of companies spend less than 5% of marketing budgets on conversion optimization. Should they be spending moreSocial Media Today, who reposted the infographic, asked an important question: are companies pairing that additional ad spend with investment in digital technologies, employees, and customer engagement?

Nearly half of searchers did not recognize top ads as distinct from natural search results. The Federal Trade Commission told two dozen search engine providers they need to distinguish more clearly between paid and natural search results. A 2012 study suggested that the common shaded box around paid results is not an adequate differentiator, especially on mobile devices. Read the full story from the N.Y. Times.

Including video in email campaigns increased ROI by 40%. A recent study revealed that despite the huge return-on-investment, only 25% of marketing executives surveyed are using video in their email marketing efforts. The most common reason for not using video was a lack of content. Visit Social Media Today for ideas on how to get started with email video, even if it’s just starting small.

The 7 Principles of Conversion-Centered Landing Page Design. “Conversion-centered design (CCD) is a discipline targeted specifically at designing experiences that achieve a single business goal.” A really interesting blog post from HubSpot covers four persuasive design elements and three psychological triggers that guide visitors to complete one action. I especially enjoyed the real-world examples from major brands, Amazon and Ticketmaster.

What was your favorite digital marketing story this week? We’d love for you to share links in the comments!

June 30th 2013 News

After “Bellwether Trial,” Court Says Malibu Media Isn’t Copyright Troll – Malibu Media v. Does

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[Post by Venkat Balasubramani]

Malibu Media v. Does, 12-2078 (E.D. Pa. June 18, 2013) [pdf]

In a somewhat bizarre ruling, a district judge in Pennsylvania held, following a “bellwether trial” that Malibu Media was not a “copyright toll.” In a 15 page ruling issued following the trial, the court sets forth its reasons for awarding $112,500 in damages to the single remaining defendant.

The order explains that Malibu Media filed multiple lawsuits, and the cases were referred to Judge Baylson for “monitoring and coordination” of various pre-trial issues. shutterstock_121653988.jpg Following the issuance of subpoenas to ISPs in order to identify possible defendants, five Doe defendants filed motions to quash. The court determines that the best way to advance the litigation is to designate these five individuals as defendants and conduct a “bellweather trial”.

In the course of further pre-trial wranglings, two of the defendants settled, leaving three defendants for trial. Two of these three defendants admitted liability (their trial would only address damages), but the remaining defendant said he never downloaded BitTorrent software or any of Malibu’s movies. After an inspection of his hard drive, Malibu contended that this defendant wiped his hard drive. The court held a hearing. Malibu’s expert testified as to the hard drive issues; the defendant (who identified himself as Bryan White) denied downloading Malibu’s movies and also denied that he had wiped his hard drive.

Given the dispute between the parties as to whether the defendant wiped his hard drive, the court appoints an independent expert. The court’s expert didn’t expressly conclude that the remaining Doe defendant wiped his hard drive, but his opinion on the date of installation of the operating system (presumably) led the remaining defendant to admit not only that he wiped the hard drive, but that he also downloaded Malibu’s copyrighted material.

This left only damages for trial. The two defendants who admitted to liability settled as to damages on or around jury selection, and this left the amount of damages against the defendant who wiped his hard drive (Bryan White) as the sole issue remaining for trial. After hearing testimony, the court awards $112,500 in damages. The court also awards Malibu its attorneys fees in the amount of $128,350.50. (I guess it’s in PACER somewhere, but the court’s order does not detail why the case ended up being tried to the judge, rather than a jury.)

The most bizarre thing about this ruling is the court’s repeated reference to bloggers who “assert that ‘copyright trolls’ are using unscrupulous tactics and false accusations to collect millions of dollars from innocent and injured computer users.” I don’t know what particular blogger got under the court’s skin, but there’s a bit of the “someone is wrong on the internet” tone to the court’s ruling in this regard. [To the Court: I would respectfully suggest that there is a more appropriate outlet for the point about bloggers unfairly maligning “copyright trolls”. It can be unpalatable and a messy business, but we all have to wade in from time to time. It’s known as: “the comments section”!]

As to the merits, I’m not sure the ruling really tells us much one way or the other.

First, a point that to my knowledge no case has ever finally resolved: to what extent an IP address standing alone ties a defendant to an infringing download. (Plenty of cases have hashed out this issue in the pre-trial context, but none (to my knowledge) have at the trial or even summary judgment stage.) Given the defendant’s admission here, this case does not end up resolving the issue either.

The court concludes that porn is copyrightable, but this is not a particularly shocking or surprising ruling.

The most interesting part of the order was the court’s conclusion that joinder of members of a BitTorrent swarm is improper. Among other things, the court states that joinder of multiple defendants allows plaintiffs to avoid filing fees and “pressures individual defendants to settle” because of the increased costs of a multi-party lawsuit. (The judge notes that Malibu Media says that it has “changed its practice” and now proceeds against defendants on an individual basis.) [Sidenote: query as to whether Malibu Media is bound by this ruling and whether future defendants will point to counsel’s statements in the event Malibu changes course and files single lawsuits against multiple defendants in future cases.]

In talking about the joinder issue, the court touches on, but doesn’t directly address, one of the biggest complaints against porn copyright plaintiffs. One complaint is that (a la Righthaven) they don’t own the copyrights at all, or that they are otherwise bringing patently bogus claims. Another complaint, of course, is that regardless of whether or not they have valid claims, they are bringing suits with no intent to enforce them, solely in order to extract settlements, and using abusive tactics along the way. While Malibu Media does not appear to fall in the first category, there’s nothing in the court’s order that precludes it from being in the second category. I’m not suggesting that Malibu Media necessarily falls into this category; just that the court didn’t make any factual findings that are necessarily inconsistent with this classification.

Other coverage:

Bellwether Porn Trial Ends; Producer Wins Damages
Copyright Troll Lawsuit Ends Badly Because Very Dumb Defendant Lied To Court, Destroyed Evidence
$112,500 Verdict For Copyright Infringement in Bellwether Case; Bellwether Trial: Why It Was A Bust
The Bellwether Trial (Malibu Media v. Does) – What Have We Learned? My Five Takeaways From the Trial (by Jordan Rushie, who represented one of the Doe defendants)

Related posts:

P2P Infringement Lawyer Faces Possible Sanctions For Disregarding Court Order Regarding Subpoenas – In re: Bittorrent Adult Film Copyright Infringement Cases
New York Judge *Slams* Bittorrent Copyright Plaintiffs – K-Beech; Malibu Media; and Patrick Collins v. Does
Court Nukes Another Mass Defendant File-Sharing Lawsuit — Digiprotect v. Does
Copyright Doe Defendant Can’t Quash Disclosure Subpoena Anonymously—Hard Drive Productions v. Does (Guest Blog Post)

[image credit: shutterstock/Memo Angeles – “angry running troll”]

June 30th 2013 Uncategorized

"Heisman Pose" Photographer’s Lawsuit Whittled Down–Masck v. Sports Illustrated

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By Jake McGowan

Masck v. Sports Illustrated, et al., 2:13-cv-10226-GAD-DRG (E.D. Mich. June 11, 2013)

Back in February, we blogged about photographer Brian Masck’s Shakespearean complaint, asserting copyright infringement claims (and others) against numerous defendants for using his famous “Heisman Pose” photo.


Together, the defendants moved to dismiss all non-copyright claims. Defendants Desmond Howard and Amazon also filed motions to dismiss on separate bases. On June 11, a district court in Michigan ruled on the various motions. For each, the court granted in part and denied in part.

Court Hesitant to Strike Down Lanham Act Claims

Masck brought unfair competition claims under the Lanham Act, alleging that the defendants caused confusion as to the origin of the Heisman Pose photo (in this case, the “goods”). But the Supreme Court in Dastar v. Twentieth Century Fox held that “origin” of “goods” refers only to tangible goods, not communicative products. If the Lanham Act were held to cover such intangible works, it would effectively stretch the language of the act to emulate copyright protection. However, the court was not ready to decide if Masck’s Heisman pose photo was an intangible item:

Through his website, Plaintiff sells physical copies of his photograph, making him a producer of tangible goods. Many of the alleged infringing activities were production of tangible goods incorrectly attributed to other Defendants . . . While there is a communicative aspect to Plaintiff’s photo, it is not as easily reduced to simply an “idea, concept, or communication” as other photos. Consumers do not purchase the photo simply for its communicative properties, they purchase it as a token of their fandom for the University of Michigan, or Desmond Howard.

For this reason, the court denied defendants’ motion to dismiss the Lanham Act claims without prejudice.

State Law Claims Preempted

Masck also brought claims under Michigan state law for (1) Tortious Interference, (2) Unfair Competition, and (3) Unjust Enrichment. The focus with the state law claims was whether they were preempted by the Copyright Act. Under the Sixth Circuit rule, Masck’s various state claims would have had to be “qualitatively different” from the copyright action to constitute a separate cause of action.

With regard to the tortious interference claim, the court did not buy any such argument:

The “interference” committed by Champions Press was the unauthorized copying of the photo, the exact conduct complained of in Plaintiff’s copyright claims. When the essence of a state law claim is the same as that in a copyright action it is not qualitatively different.

The court quickly dismissed the unfair competition claim for similar reasons, noting that “the underlying conduct complained of is the unauthorized copy of Plaintiff’s photo.” The unjust enrichment claim shared a similar fate:

. . . only an implied in fact contract requires alleging an extra element of a promise to pay. Since Plaintiff does not allege Defendants made any promise to pay, there is no extra element to prove. As such, their unjust enrichment claim is preempted.

Masck May Not Pursue Statutory Damages or Attorney Fees

One issue we highlighted since the suit’s inception was that Masck had most likely missed his shot at statutory damages by dragging his feet registering the photograph. Under Section 412(2) of the Copyright Act, there is no award for statutory damages or attorney fees if the infringement in question commenced after publication of the work but before the effective date of its registration, unless the author registered the work within three months after the first publication. In this case, defendant Howard used the photograph in 2010 and Masck did not register the photograph until 2011, well after first publication.

Instead, Masck tried to argue that Howard engaged in separate acts of infringement because he used an indiscernibly-altered version of the photograph on his website after registration. The court did not agree:

As Howard stated, this is effectively the same photo, placed on the same website, by the same defendant. What little difference there is between the two photos is not enough to demonstrate that there are two separate acts of copyright infringement.

The court ruled that Masck may not pursue statutory damages or attorney fees, and that the ruling applied to all defendants who were alleged to have infringed before the effective registration date.

Amazon’s Motion to Dismiss

Amazon filed a separate motion to dismiss on the basis that Masck had not stated a proper claim for vicarious copyright infringement. Emphasizing its vulnerable position as an “e-commerce platform provider,” Amazon argued that it did not have the requisite ability to supervise the infringing conduct. The court sided with Amazon, agreeing that the company could not be expected to examine every third party product:

Plaintiff must put forth factual allegations that demonstrate Amazon could plausibly verify the copyright status of each and every piece of merchandise it lists from third-party sellers. Failure to do so requires dismissal of this claim.

Unfortunately for Amazon, the court did not let them off the hook for the contributory infringement claim. While the company may not have a duty to inspect every item a third party sells,  Masck did ask them to take down the infringing photographs and yet they continued to sell them. In response, Amazon tried to argue that the holding of the Sony Betamax case provided a defense in that the site is “capable of substantial non-infringing uses.”

The court, however, did not agree with the analogy:

. . . the holding of Sony is not even applicable to this case. “Sony’s rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product.” [MGM v. Grokster]. There is no need to impute culpable intent since the products sold by Amazon already possessed their infringing characteristics.

Since the court reasoned that selling such merchandise was a material contribution, it held that Masck had a proper claim and denied Amazon’s motion.


I was somewhat surprised that the Lanham Act claims survived, despite the low bar for motions to dismiss. Eric pointed me to the Dastar decision early on, and after reading it I thought all those claims would be struck down.

I still would not be surprised if this settled, especially with the court acknowledging that the door for statutory damages is shut. As for now, we can only speculate what kind of numbers are being thrown around behind closed door settlement discussions.

[Photo Credit: Debby Wong /]

June 30th 2013 Uncategorized

Gillmor Gang: Interdependence Day

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The Gillmor Gang — John Borthwick, Robert Scoble, Kevin Marks, Keith Teare, and Steve Gillmor — marvel at the mutually assured creation of a partnership between Larry Ellison’s Oracle and Marc Benioff’s Few would have predicted such a stunning partnership just a few years ago, but the crescendoing intersection of cloud, social, and mobile has borne sudden fruit.

The only constant is change. Google Reader’s demise gives way to @borthwick’s Digg Reader, seeds @scobleizer’s Flipboard magazines, and tracks the proliferation of a shiny new red Glass to replace Robert’s original accessory. Managing the tweet notifications can quickly overrun the Twitter for Glass app, but we’re living in a material world where the innovation surge of the last few years is now ripe for absorbing. Gentle men and women, start your engines.

@stevegillmor, @borthwick, @scobleizer, @kteare, @kevinmarks

Produced and directed by Tina Chase Gillmor @tinagillmor

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June 30th 2013 RSS, video

Hasta La Alta Vista, Baby.

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The post Hasta La Alta Vista, Baby. appeared first on John Battelle's Search Blog.

I just saw the news that Yahoo! is “sunsetting” Alta Vista, one of the first “good” search engines. This makes me a little misty, as Alta Vista was the search engine I used BG – Before Google – and it had a real shot at *being* Google, had its various owners not utterly screwed it up over the years. Did you know, for example, that at one point Alta Vista was the largest and most widely used search tool on the web? Its driving force, Lois Monier, once told me “search should be a pencil” – he was adamant that Alta Vista not become a portal.

But Alta Vista was owned by DEC, a now dead computer company, which was bought by Compaq, another now dead computer company. And they made it a portal. And through the now defunct Overture, the assets of Alta Vista made their way to Yahoo!, a still alive portal. But now, Alta Vista is going to truly be dead.

It’s hard to watch an important player in the early Internet go away – and it makes me reflect on a couple of things. First, how much or our own culture and history we’re losing day by day, even despite the best efforts of archivists like Brewster Kahle. And secondly, on a personal note, Alta Vista was the search engine that helped me find my birth mother way back in 1995, when my wife was pregnant with our first child, and my life-long wonderings as an adoptee took on a new urgency. Alta Vista pointed me to an online forum for people like me, and there I found a person who helped me find my mother. Pretty cool.

So I’ll miss you, Alta Vista. And if any of you want to know the engine’s journey, well, there’s a book for that.

The post Hasta La Alta Vista, Baby. appeared first on John Battelle's Search Blog.

June 30th 2013 Search, yahoo

Full Google Reader Backup

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Reader is dead,” says Mihai Parparita, one of the former Google Reader engineers. You still have 2-3 days to use Google Reader, but the best thing you can do is to export your data.

Google Takeout lets you export some of your Reader data, but not everything: your subscriptions, your notes, starred items, shared items, liked items, the list of followers and the people you were following, the items shared by the people you were following. Mihai Parparita wrote some Python scripts that download everything from your Google Reader accounts, including the entire content of the posts from your subscriptions. You need Python 2.7, some basic command-line skills and a lot of free storage: my backup has more than 5 GB for about 250 feeds (vs 125 MB for the uncompressed Takeout backup).

Here are some tips for running the script in Windows 7/8:

– install Python from here (Python 2.7.5 Windows Installer)
– download Mihai’s zip file and extract the files
– open the folder in Windows Explorer and you should see a list of subfolders like “base”, “bin”, “feed_archive”.

– Shift + right-click below the folders and select “open command-line window here”.
– copy this code, paste it in the command-line window and press Enter (I assumed that Python’s folder is c:\python27):

c:\python27\python reader_archive\ --output=download

– a web page will open in your favorite browser and you’ll need to click “Accept”, copy the authorization code and paste it in the command-line window.
– wait until the script downloads all the files.

Mihai also started to write a script that lets you browse your archive. It’s a work in progress, probably because the script for downloading your data is more important right now.

There’s also a script for downloading a feed’s archive. “Google Reader has (for the most part) a copy of all blog posts and other feed items published since its launch in late 2005 (assuming that at least one Reader user subscribed to the feed). This makes it an invaluable resource for sites that disappear, can serve as a backup mechanism and enables tools to be created.” My post from 2007 provides another way to download the history of a feed. You can also upload your OPML file to this site, which preserves hitorical feed data.

“I don’t fault Google for providing only partial data via Takeout. Exporting all 612,599 read items in my account (and a few hundred thousand more from subscriptions, recommendations, etc.) results in almost 4 GB of data. Even if I’m in the 99th percentile for Reader users (I’ve got the badge to prove it), providing hundreds of megabytes of data per user would not be feasible. I’m actually happy that Takeout support happened at all, since my understanding is that it was all during 20% time,” says Mihai Parparita, who spent 5 years working on Google Reader.

If you’re curious to know which Reader alternative gets a thumb up from Mihai, his answer is “a toss-up between NewsBlur and Digg Reader.”

June 30th 2013 Uncategorized