How to start writing a blog post?

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It can be really hard to come up with a topic for a blog post. When you finally found the perfect subject, you probably want to start writing immediately. But to write that perfect blog post, you should take some time to prepare it properly. Today, I’ll give some tips on how to begin your writing process. If you take some time and prepare your blog post adequately, your writing will be so much better! 

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Preparing takes time

The writing process can be divided into three phases. The actual writing is the second phase of your writing process and only takes up about 20% of the time. That is, if you’ve done the preparing phase properly.

Process of good writing explained in a picture: 40% prepaparation, 20% writing, 40% correcting

In my opinion, the preparing phase is the most fun! You can brainstorm, try out things and be creative in this phase. So, although it may seem like this preparing-stuff is just holding you back from the actual writing, you should think of it as the most creative and fun phase. And the most important phase!

Brainstorm

Always start a blog post with a brainstorm. Once you’ve decided on the topic of your post, you should make a list of all the things you would like to address in your post. Don’t be critical in this phase. Just write down anything you come up with. You always can cross off the ‘not so good ideas’ later on.

What is your message?

What is the one thing you want your readers to remember after they’ve read your post? What’s the most important thing you want to say? The answer to these questions is the message of your post. You should write that message down. This is the key information of your blog post. That message should eventually come in the first paragraph of your blog post.

Write a little bit

Although the actual writing comes in the second phase of the writing process, you should definitely write some sentences. Try to find the right words for your topic and for your audience. Try to write some beautiful sentences. I wouldn’t advise you to try to write the first sentence of a blog post in this phase, but you could write a few sentences of an important paragraph. Playing around with words will help you to find the tone of your blog post.

Structure, structure, structure

The most important thing you should do in the preparing phase of writing a blog post is to come up with the structure of your text. At the end of the preparing phase, you should end up with the skeleton of your blog post. What subjects will you address in what order?

After you’ve brainstormed about the topic, you’ll probably end up with a long list of things you would like to address in your blog post. Read through your list, cross of the things you’re not totally sure about and try to see whether or not topics resemble each other. Bundle similar topics. After that, you should think about the order you want to discuss your topics. Make sure you discuss things in a way people understand. Subjects and paragraphs should follow each other in a logical order.

Before I start the actual writing process, I usually have a list with paragraphs. For every paragraph I also have a short description of the things I would like to discuss and the examples I would like to use. In some cases, I already formulated some nice sentences for every paragraph as well.

Hit that keyboard!

Preparing your blog post can be real fun. I really enjoy this phase the most. If you’ve thought your post through it’s time to turn to the next phase and hit that keyboard. Go write your post!

After writing your post, you’re inevitable going to end up in the correcting phase. Very important. Totally hate that phase.

Keep reading: ‘SEO copywriting: the ultimate guide’ »

May 31st 2017 blogging

Twitter Rolls Out New Chatbot Feature for Businesses

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Twitter has introduced a new chatbot feature for companies to promote their brands, and they are hoping that these businesses and their customers stay on the platform for their real-time interactions.

This new platform allows brands to customize the experience for each customer. Interaction between the brands and their customers are initiated using the “Direct Message Card” in their Twitter accounts. Companies can also customize these chatbots through an avatar or video.

The gimmick seems to work as Patron Tequila, one of the companies that first made use of Twitter’s new offering, generated a lot of buzz when it shared what the chatbots can do. The two “bartenders” featured on the Patron account will guide customers on what cocktail to order, as well as any relevant information on the many flavors available.

Consumers can also interact with the brand administrator of the Twitter account if they have some questions. Among the other features of the Twitter chatbots are welcome messages, geotagging, customized profiles, and quick replies.

Twitter is coming in a bit late to the ballgame, however, as chatbots are already being utilized by Facebook and Microsoft via Skype and LinkedIn. Facebook even boasts of having AI-tech for its chatbots because of their speech-to-text and language processing capabilities.

Though it’s not clear what Twitter plans to do with its chatbots in the near future, for now, it’s deviating from the business models of Facebook and Microsoft. Instead of trying to drive business, the company aims to bring brands and their customers closer together by introducing some levity to the interactions.

Right now, the Twitter chatbots are still in a beta stage and are limited to advertisers. Even so, it’s hard to see the bots as more than just a gimmick since they really don’t add any significant value other than promotions. However, brands have been asking their customers to share their experience with the bots in order to gauge their appeal.

Twitter also has yet to release details on what exactly their new chatbots are capable of. For instance, it is still unknown if they have some sort of machine learning capabilities, apart from the main input code, or if they recognize patterns while also initiating conversations with customers.

The jury is still out on how brands will accept the new Twitter chatbots, considering the version rolled out by Facebook disappointed users because they found it difficult to navigate, and the interaction wasn’t as engaging.

The post Twitter Rolls Out New Chatbot Feature for Businesses appeared first on WebProNews.

May 31st 2017 Social Media, Twitter

10 Infographics to Guide Your Content Marketing Strategy

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Your brain can identify and retain details of an image in 13 milliseconds. That’s less than a 20th of the time it takes to blink your eyes. So it’s no surprise that visual content is on the rise as attention spans shrink. If you could choose between a consumer spending 20 seconds with a wall of text or 20 seconds with an image, it makes sense to go with the latter.

In other words, people like looking at stuff. As such, infographics are rapidly becoming an essential component of a solid content marketing strategy. Free tools like Canva and Pixlr make it easier than ever to turn your data into compelling visual content.

The best infographics give equal weight to both parts of the word – they combine essential info with stellar graphic design. I could write a whole blog post about how great infographics can be. But, of course, that would defeat the purpose.

Instead, let’s look at ten great infographics with a meta twist: They’re content marketing assets about content marketing! These examples can inspire your own infographic creation while they inform your strategy.

#1: How to Socialize a Blog Post

Creating great content is less than half the battle for marketers. You should spend roughly 20% of your effort creating, and 80% in promotion. What good is awesome content if no one sees it? This colorful gem from DigitalMarketer efficiently illustrates how to make sure your content reaches your target audience. You’ll learn how to create assets that help promote the piece, make your shares trackable, and analyze your results to do it even better next time.

#2: The Top 8 B2B Customer Marketing Trends to Watch Out for in 2017

This piece from Digital Marketing Philippines (via the good folks at HubSpot) really puts the “info” in “infographic.” It’s a good example of just how much data you can pack into a visual asset while still keeping it easily-digestible. The bright colors, solid organization, and statistic call-outs grab attention, while the text provides plenty of value to keep people reading.

#3: What Does It Take to Make a Piece of Content?

Dive into this cool blue infographic for an insider look at how content powerhouse Contently goes from strategy to creation to distribution. This piece is a great counter-example to the design-heavy look of the previous entry on the list. It relies on simple line art to create a cooking metaphor that provides visual interest without overpowering the text. A soupcon of highlighted statistics help make the case for the solid advice they’re presenting.

#4:  The Ultimate Content Marketing Strategy

There are plenty of resources out there that explain the “Big Rock” content marketing strategy, but this Curata infographic gets points for thoroughness and nifty graphical interest. Learn how to create a gated asset, slice it into top-of-funnel ungated content that feeds back to the gated asset, then dice it into even smaller gems to share on social media. One nifty trick to steal for your next long infographic: The progress bar at the top that shows exactly how far you’ve read and how far you have left to go.

#5: A Brief History of Content Marketing

Who better to give a primer on the 200+ year history of content marketing than the Godfather himself, Joe Pulizzi of the Content Marketing Institute? This timeline serves as a reminder that quality content can help build a business, from John Deere’s The Furrow to the Michelin Guide to the Will It Blend? Videos. Wrapped in Joe’s signature orange, this bite-sized history lesson is well worth a read.

#6: 10 Visual Marketing Statistics for 2017

This infographic collects results from a Venngage survey of over 300 digital marketers. It’s a great resource for seeing how the industry is moving toward visual content, and what types of visual content are leading the pack. Compare your progress to the results here, or use it to inspire your strategy, or just enjoy the pink-and-purple visuals.

#7: The Ins & Outs of Awesome Infographics

Fans of marketing, infographics, and pentagons will enjoy this groovy piece from IBM. The simple, clean design work complements the solid advice on offer about how to create memorable visual content. Learn how to choose the right visuals for your data, pick the right layout, and avoid common mistakes.

#8: What Buyers Really Want from Content Marketers

The team at Uberflip demonstrates a lesson well worth learning in this piece: Not every infographic has to be six screens tall. They manage to pack a wealth of data into a fairly small space, distilling the message into something that gets the value across without spraining your scrolling finger. Find out what buyers want marketers to do, and not do, to create content that really resonates.

#9: The Importance of Visual Content

You don’t have to have a team of researchers and designers to create a solid infographic. This piece from kwikturn media is a good example of doing more with less. It’s essentially a stats blog post, compiled from sources around the internet. Add some thoughtful but simple clip art, a slate background, and it’s far more interesting than a text list would be.

#10: The Secret to Creating Scalable, Quality Content and Better CX

Static infographics have more visual interest than text does. But you can take it a step further with an animated, interactive infographic. Some people call these “gifographics.” Those people are wrong. But whatever you call them, they’re undeniably cool. We created this interactive piece on the Ceros platform.

Infographics are an indispensable part of a modern content marketing strategy. Use them to highlight data points from your gated content, replace a list-based blog post, or just to brighten up a how-to post. Just keep the design simple and clean, and the text informative and valuable.

Seen any cool infographics lately? Let me know in the comments.

And if you need help creating your own infographics, check out our content marketing services.


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May 31st 2017 Uncategorized

Do we have a choice?

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“Do what I say” vs.
    ”Use your best judgment.”

“I’m in charge because I have authority” vs.
    ”Take responsibility if you care.”

“It’s simple and easy but ineffective” vs.
    ”It’s difficult and a bit complex, but you can handle it and it’s more likely to work.”

“It’s the same as last time” vs.
    ”This might not work.”

“Because I said so” vs.
    “Show your work.”

“Here’s the kid’s menu” vs.
    “Learn to cook.”

“Comply” vs.
    “Question.”

“Consume” vs.
    “Produce.”

“You haven’t been picked” vs.
    “It’s always your turn.”

“You have no choice” vs.
    “It’s always up to you, if you care enough.”

       
May 31st 2017 Uncategorized

Introducing the New Ad Age Homepage

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Advertising Age is undergoing some pretty exciting changes. Today we’re excited to reveal a fresh look for our homepage, one that not only brings us into the modern era but propels us into the future.

The site as you’ve known it — let’s be honest — was not especially pretty. Navigation was clumsy and content was hard to find. Now with our first homepage makeover since 2014, we’re offering readers a more intuitive experience with a sleek, contemporary feel. There will be more stories on our site and yet less clutter. The page itself will be wider. Our offerings will be divided into buckets: latest news, curated editors’ picks and the most popular stories.

But don’t take my word for it.

Continue reading at AdAge.com

May 31st 2017 Uncategorized

Snapchat Moves to Create a Safer Environment for Brands

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Snapchat is trying to reassure marketers that it’s a safe place to advertise, striking deeper partnerships with outside companies to monitor its systems and protocols.

Snapchat is working with Integral Ad Science, DoubleVerify and Moat to evaluate its technology and procedures for addressing brand safety.

“The Snapchat brand safety protocol is designed to block any ads from appearing adjacent to user-generated content that is determined to be inappropriate or objectionable,” DoubleVerify said in a statement Tuesday.

Continue reading at AdAge.com

May 31st 2017 Uncategorized

Maximize conversions with Smart Bidding

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When your goal is to get the most conversions from your marketing budget, it can be challenging to set the right bid and bid adjustments. Where do you spend your next dollar to get your next customer? To help you make the most out of your budget, we’re introducing Maximize Conversions: a new Smart Bidding strategy that automatically sets the right bid for each auction to help get you the most conversions within your daily budget.

For example, if you’re a clothing retailer trying to quickly sell last season’s styles, Maximize Conversions will help you get you the most number of sales from your existing budget by factoring signals like remarketing lists, time of day, browser and operating system into bids. Smart Bidding uses Google’s machine learning technology to optimize for conversions across every ad auction—also known as “auction-time bidding”.

Trex, a luxury composite decking company, used Maximize Conversions to build brand awareness and saw a 73% increase in conversion volume:

“We wanted to increase the conversion volume of our high-priority campaigns without raising budgets. In our first test campaign, we saw a 73% increase in conversion volume, 59% increase in CVR , and 42% decrease in CPA, with no change in our spending.” – Chris LaRoche, PPC Team Lead at Seer Interactive

It’s easy to set up Maximize Conversions. Simply go to your campaign’s settings page, click “Change bid strategy” and select Maximize Conversions. You can test Maximize Conversions, get insights and monitor your bid strategies to understand their performance.

Set your bid strategy to “Maximize Conversions” to get the most out of your budget

Learn more about maximizing conversions with Smart Bidding in the AdWords Help Center.

Posted by Josh Moser, Product Manager, AdWords

May 31st 2017 Uncategorized

Your Movements Shall Be Traced: The New EU Regulation on Cross-Border Portability (Guest Blog Post)

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by guest blogger Marketa Trimble

On May 18, 2017, the European Parliament adopted with amendments the EU Cross-Border Portability Regulation (Regulation (EU) of the European Parliament and of the Council on cross-border portability of online content services in the internal market). The Regulation, which is – as of May 29, 2017 – awaiting approval by the EU Council, introduces important changes to the business of Netflix and other online content service providers (“providers”) that will affect not only providers who are incorporated in the European Union, but also any other providers who provide online content to subscribers in the European Union. The Regulation is a remarkable piece of legislation that raises a number of questions, a discussion of all of which would be too lengthy for a single blog post. This post focuses on only one interesting aspect of the Regulation: the Regulation’s endorsement and justification of providers’ tracking of user movements.

The Regulation requires that providers of paid online content offer EU subscribers who are temporarily present in another EU member state “the same content on the same range and number of devices, for the same number of users and with the same range of functionalities as those offered in their Member State of residence” (Article 3.1 & Recital 21 of the Regulation). For example, when an Estonian subscriber vacations in Belgium, he will no longer see only Belgian Netflix programming; instead, while in Belgium, he will have access to his originally-subscribed Estonian Netflix programming. Netflix will still be allowed to offer its Belgian programming to the Estonian subscriber in addition to his Estonian programming (Recital 23), but the Regulation will not require that Netflix provide its Belgian programming – only its Estonian programming will be required for the Estonian subscriber. The cross-border portability regime within the European Union is mandatory for providers of paid online content; unpaid online content providers may opt in to the regime “to take advantage of the legal mechanism” of the Regulation (Recital 20; also Article 6).

The keys to the functioning of the cross-border portability mechanism under the Regulation are location and localization. First, providers must identify a user’s EU member state of residence (Article 5 & Recital 26). Second, although it is unstated in the Regulation, providers must in some manner trace a user’s movements throughout the European Union to determine the user’s temporary presence, i.e. how long the user is located in an EU member state other than the user’s member state of residence. (Note that the EU legislators have shied away from defining the duration of “temporariness,” which for example the German Bundesrat and the Czech Senate suggested that they do.) Third, for choice-of-law purposes, the actions of the user in the EU member state of the user’s temporary presence will be localized (deemed to occur) in the state of the user’s residence for the purposes of the cross-border portability regime (Article 4 & Recital 24).

It is possible that not all users will be pleased about having their providers follow (and presumably at least temporarily store information about) their physical movements, even if only at country-level detail (Recital 28). Some providers may choose to trace user movements in an unobtrusive way (e.g., by asking users to voluntarily report that they are temporarily outside their member state of residence, although still in the European Union). More likely, though, content providers will use geolocation to trace their users’ movements and verify the temporariness of their users’ location – a practice that may be objectionable to some users. While many providers have been using geolocation to identify users’ current locations, perhaps the providers’ tracing of the durational aspect of users’ movements is not yet common.

Some users may also object to submitting a particular type of document for verification of their residence; for example, it is conceivable that a user might not want to submit a scanned copy of the user’s ID card, which is one possible means of verification that a provider may require (Article 5.1(a)). The requirement by providers of particular means of verification, and their tracing of user movements may lead at least some users to wish they could opt out of cross-border portability if the users are concerned about their privacy and do not want their physical movements to be traced. (Although European Parliament member Kaja Kallas referred to e-IDs as “the most user-friendly means of verification,” most users would not necessarily always equate user friendliness with a high level of privacy and security.)

However, the Regulation does not contemplate the possibility that users would wish to opt out of cross-border portability (e.g., in the example above, that the Estonian user would wish to forego access to Estonian Netflix programming while he is temporarily present in Belgium). Article 7.1 explicitly precludes users from contracting out of cross-border portability because, as Recital 21 summarizes, “parties should not be able to exclude [cross-border portability], derogate from it or vary its effect.” Additionally, Recital 25 precludes contractual choice-of-law provisions that would lead to providers avoiding their obligation to provide cross-border portability. Article 5.4 allows a copyright holder to waive the requirement of location verification, but only as to the initial verification of the user’s member state of residence (also Recital 29), and not as to any verification of the user’s temporary location.

It is perhaps symptomatic of today’s society that the Regulation does not anticipate a user protesting the “advantageous” ability to enjoy the user’s home content while temporarily abroad. As some of my colleagues have noted, it is an unfortunate commentary on the world that users are presumed to want to spend their vacations watching their home programming rather than enjoying local programming and learning about the country they are visiting. Although Julia Reda, a European Parliament member, expressed concern that, without cross-border portability, “making Europe’s amazing cultural diversity accessible to all Europeans” might be inhibited, it is questionable whether cross-border portability will in fact improve the accessibility of diversity and encourage users to enjoy diversity. (See the German Bundesrat’s emphasis in its decision concerning the proposed Regulation that cultural diversity not be impaired by “a more European copyright law.”)

There is something even more troubling about the language of the Regulation that is based on the following interpretation of the Regulation: Providers could interpret the Regulation as giving them no choice but to verify the residency and current location of all their users. While it seems illogical that EU legislators would intend to impose a burdensome obligation on users to accept cross-border portability (with all of its potentially undesirable location verification requirements) without giving users the possibility of opting out of cross-border portability, legislators did not express any such intent in the Regulation. Providers could argue that the Regulation requires them to enable cross-border portability for every user (“shall enable” in Article 3.1), necessitating that they verify the residency and current location of all users, regardless of whether or not a user wishes to enjoy cross-border portability. This argument would mean that the Regulation endorses and justifies large-scale tracking of user movements by providers – an unlikely proposition.

If the omission of any possibility for users to opt out of cross-border portability is by design, one could see the omission as a purposeful attempt to create public outcry about tracing user movements and to instigate public opposition against any territorial limitations on cross-border content. The omission would thus create increased public pressure on copyright owners and content providers to provide content on an EU-wide basis, an outcome that would be in line with the EU Commission’s unfulfilled desire for widespread EU-wide licensing (for a 2014 EU directive on multi-country licensing of musical works see here), if not for completely uniform EU copyright law or unitary EU copyright (see here and here).

P.S.: Once the Regulation is approved, published in the Official Journal of the European Union, and eventually enters into effect, it will require no implementing national legislation; it will be directly applicable in all EU member states, plus in Iceland, Liechtenstein, and Norway.

May 31st 2017 Uncategorized

How Will AI Affect Project Management in the Future?

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Companies are just discovering the potential of AI to unburden project managers, who are already spending too much time on paperwork or management tasks rather than crafting strategies and future plans on the macro level.

The average project managers today have so many responsibilities that it’s any wonder they can get things done other than filing and signing documents, making sure everybody follows the schedule, crafting budgets, and other administrative duties.

This routine has been maintained for so long that companies take the delay as par for the course. In public organizations, a large bureaucracy can add to the Gordian knot to the point wherein a project submitted on time is now sometimes greeted with surprise.

According to the Harvard Business Review, over half of the project manager’s time is wasted on administrative tasks. In fact, if they have their way, almost nine in 10 of the survey respondents replied that they could benefit from AI support so they wouldn’t have to focus so much on administrative tasks.

The good news is that there are already AI tools on the market today that can help project managers unclog their desks. Kono.ai, for example, has an app that can work as an effective smart assistant. The Monte Carlo app, meanwhile, can submit a risk analysis through probabilities. Admittedly, developers are just scratching the surface of what AI can really do for project managers.

Scott Middleton, the CEO of Stratejos, a smart assistant software maker, says that despite skepticism by employees about AI stealing their jobs, the future of machine-learning in relation to business tasks is bright.

“AI isn’t to be feared,” he explained. “It may even be your best team member, especially for project managers. AI for project management is on the rise, and the way things are going, it’s going to help teams make smarter decisions and move faster.”

A survey from software developer Atlassian revealed that more than 70% of those surveyed claimed that half of their tasks can be done by robots or AI tech. Right now, almost 40% believe that they are already utilizing AI in their office.

Middleton predicted that developers—and companies in general—would place more focus on smart assistants for project managers to relieve them of some of their more menial tasks. In the future, the amount of complicated tasks assumed by robots will have increased.

But the AIs of today are severely limited in scope. For instance, they still rely on data collected and input by humans. These robots are not self-updating, nor do they make corrections automatically if they spot a mistake.

That will change in the future, of course.

To allay the fears of middle managers, as well as the rank and file, it seems unlikely that machines will take over whole organizations because they lack the capacity for creative thinking in solving complex problems.

What they do, however, is cut back the amount of errors committed in the implementation of the project until its submission. As the technology advances, they will become invaluable tools in reporting and monitoring.

Instead of project managers defining the scope of the work, assigning tasks to the teams, analyzing the data, adjusting timetables, documenting the process, predicting outcomes, and gauging the risks, these can all be done through machine-learning.

This is the reason why companies are well advised to start thinking about investing in AI as an assistive tool in everyday tasks. In the same vein, instead of being viewed as a threat to human jobs, project managers should teach themselves to better harness today’s advances in machine-learning to come up with solutions to their core project problems.

The post How Will AI Affect Project Management in the Future? appeared first on WebProNews.

May 31st 2017 Uncategorized

Amazon Doesn’t “Sell” Its Marketplace Goods–Milo & Gabby v. Amazon

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Screen Shot 2017-05-25 at 11.04.04 PMMilo & Gabby is a small family business that designs and sells “animal-shaped” pillowcases. It discovered that knockoffs were listed for sale on Amazon’s website. The products were actually offered for sale by third party sellers, and all but one did their own fulfillment. One of the merchants used Amazon’s “Fufillment by Amazon” service which meant that the seller took advantage of Amazon’s logistics network. A seller who used this service ships its product to an Amazon fulfillment center where Amazon deals with storage, shipping, etc.

The record does not reflect whether M&G sent takedown requests prior to filing suit. It asserted trademark, copyright, and design patent claims. Upon receiving the lawsuit, Amazon suspended the sellers and prevented one of the rogue sellers from re-listing the product.

The district court granted summary judgment as to M&G’s copyright and trademark claims. It rejected M&G’s theory of direct infringement because of the lack of evidence that Amazon “actively reviewed, edited, altered or copied” M&G’s images. It rejected the trademark claims because there was “no evidence of any violation of a valid, enforceable mark entitled to protection under the Lanham Act.”

The remaining claim for design patent infringement went to trial. The parties agreed the key question is whether Amazon “offered to sell” the items in question and that this was a question of law. An advisory jury found in favor of Amazon, and the district court entered a verdict in its favor. M&G appealed.

Design Patent claims: On appeal, the Federal Circuit found that M&G advanced the theory on appeal that Amazon “sold” the product rather than its “offer to sell” theory it relied on below. M&G abandoned the former theory at summary judgment. Because it failed to meaningfully argue the “offer to sell” theory for patent infringement, the court affirmed judgment against M&G on the patent claim. The court notes that M&G did not raise alternate theories of infringement, such as inducement or contributory infringement.

Copyright claims: M&G offered two possible theories of copyright liability for Section 106 “distribution”: (1) Amazon was a ‘seller,’ and (2) it was a distributor.

The seller liability theory turned on what it means to “sell” an infringing product for copyright purposes. The court says usually that a transfer of title dictates who is the seller, but there are some exceptions. M&G argued that several Uniform Commercial Code provisions (dealing with consignment sales and the right to return certain goods bought primarily for resale) demonstrate that someone can be a seller even without taking title. The court says these exceptions are not applicable. While there may be some circumstances where someone can be considered a seller when not transferring title, M&G failed to make the case that those exceptions apply here.

The distribution right covers infringement by “sale or other transfer of ownership.” Since M&G don’t satisfy the definition of “sale”, The infringement by distribution argument depends on M&G showing that Amazon infringed on the distribution right by “another transfer of ownership.” The court says that M&G failed to devote meaningful attention to this argument and essentially waived it. In passing, the court says that, whatever the phrase “other transfer of ownership” means, it too would require some transfer of title.

Lanham Act claims: M&G did not plead a palming off claim in its complaint (it asserted a claim for false designation of origin). In response to Amazon’s motion for summary judgment, M&G raised for the first time a palming off theory. The district court rejected this argument, and the appeals court does the same.

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This is a big win for Amazon since the case exposed Amazon to liability for sales by its marketplace vendors. (eBay weighed in as amicus on its side.) Any ruling that gives Amazon a clean bill of health for infringement that occurs on its platform is useful. It’s unclear whether this ruling is fact-specific or will have broader effects. I tend to think the latter.

The part of the case that is puzzling is that there is no doubt Amazon’s fulfillment service helps parties sell the products in question. In this respect, Amazon is no different from other third parties (some of whom are even more removed, such as flea market vendors) who can be found liable. Indeed, the court says Amazon’s services “made it easier for third parties to consummate a sale.” This theory does not warrant attention from the court because M&G did not argue derivative liability. The court’s recitation of facts makes it seem like that would have been a more viable argument.

The decision does not mention the DMCA at all. Amazon’s off-line activities would not be covered by the DMCA, but their reproduction of M&G advertisements would be eligible for protection under the DMCA (see, e.g., Corbis v. Amazon). Perhaps the court did not address this theory due to the narrow grounds on which M&G premised infringement? It is still noteworthy to see a copyright ruling involving Amazon not mention the DMCA.

The court discusses what constitutes a sale in some detail, and covers a breadth of issues, including UCC provisions. The opinion also briefly alludes to first sale doctrine, including the case involving promo CD’s (Augusto, blogged here).

Finally, while not a big part of the ruling, the court refuses to consider the district court’s award of fees for the Lanham Act claim. Apparently, the trial court sent a clear signal that this was a bogus claim, but the plaintiff continued to pursue it. The court hammered down and awarded fees.

Eric’s Comments:

It’s painful to see how many times the court says that the plaintiff waived an argument or otherwise made unforced litigation errors. For example, because the plaintiff changed midstream its theory of design patent infringement, we don’t really get guidance on the application of design patent law to online marketplace sales. That leaves holes in this ruling that could be explored in future cases.

Still, I agree with Venkat that this is a big ruling for Amazon. This court says that Amazon didn’t make a copyright “sale,” and it seems to indicate that the same analysis would apply to patent law’s references to “sale.” This further ameliorates the district court’s troubling initial ruling on design patents, which was already blunted in part by the jury ruling.

The opinion is unfortunately marked “nonprecedential.” Still, this ruling reminds me a little of the Cablevision Second Circuit ruling. That ruling only addressed one of several litigation theories over DVR-as-a-service, yet it has evolved into the de facto legal standard. I expect that, over time, this case will stand for the proposition that Amazon doesn’t “sell” marketplace goods, even though the court only addressed pieces of that question.

The Federal Circuit’s holding that the person making a “sale” (at least for copyright purposes) usually is the person transferring title is another example of the Federal Circuit’s preferences for rules over standards. It’s a logical conclusion, however, and ideally other courts won’t lard it up with too many exceptions that can swallow the rule. If the “seller = transferor of title” syllogism holds, it deemphasizes plaintiffs’ various possible arguments over the other marketplace services that marketplaces provide to vendors and buyers, such as advertising services, payment services, trust-and-safety/reputation services–and even storage and fulfillment services. So long as the title passes directly from vendor to buyer, these ancillary services provided by marketplaces shouldn’t turn the marketplace operator into a “seller” for IP purposes. This reinforces the legitimacy of marketplace operators providing these ancillary services and perhaps encourages them to provide even more ancillary services.

While that may be good news, I remain troubled by the overlay of the Airbnb v. SF ruling, which opened up the door for regulators to bypass Section 230 by regulating “booking services.” Even if marketplace operators can sidestep some IP liability by not being “sellers,” regulators might still hinge liability on the marketplace’s closing of marketplace deals. See also the McDonald v. LG case, exposing Amazon to potential product liability claims for marketplace sales.

While this case was on appeal, eBay won a highly relevant (but uncited) ruling in Blazer v. eBay. That case held that, for utility patent purposes, vendors, not eBay, made the “offers for sale.” The court also rejected inducement and contributory patent infringement claims against eBay. It would have been nice if the Federal Circuit ratified or even acknowledged the Blazer opinion, but instead we get two different courts independently reaching complementary–and defense-favorable–rulings.

Case citation: Milo & Gabby LLC v. Amazon.com, Inc., 2016-1290 (Fed. Cir. May 23, 2017)

Related posts:

Section 230 Doesn’t Protect Amazon From Products Liability Claims–McDonald v. LG

Amazon AppStore and Google Play Defeat Lawsuit Over Infringing App Name–Free Kick Master v. Apple (Forbes Cross-Post)

Is Amazon Liable For IP Violations By Its Marketplace Vendors? (Forbes Cross-Post)

UMG Can’t Enforce “Not for Sale” Restrictions on Promo CDs — UMG v. Augusto

May 31st 2017 Uncategorized