Spotify Will Now Let Brands Sponsor the Most Popular Playlists

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Remember the old days when you'd give a girl or guy a playlist in the hopes of winning them over? Now, Spotify is letting brands try the same trick.

Spotify has begun letting brands sponsor the most popular playlists curated by the music streaming service, offering advertisers a way to match music with a message. Sponsored Playlists, as they're called, match a marketer with a playlist that lines up with a certain audience they have in mind based on campaign objectives. In a blog post today announcing the new offering, Spotify said it will work with advertisers to drive streams to a playlist during the sponsorship through native promotion, brand marketing and social media.

"Think content plus context; the right message in the right moment," according to a blog post published today by Spotify. "Cardio or Power Workout are perfect for a footwear brand expanding from lifestyle shoes to workout sneakers. A QSR adding breakfast to the menu? How about Morning Commute? An entertainment company with a summer blockbuster teeny-bopper flick? Teen Party, of course. You get the idea."

Spotify will also have in-playlist media packages that include native logo placement, ownership of the first ad break and 100 percent display share of voice (SOV). Sponsored Playlists will only be featured on the free version of the platform.

Many of Spotify's more than 400 internally curated playlists already have massive listener bases. For example, the Today's Top Hits playlist has 8 million followers, Rap Caviar has 3 million, ElectroNOW has 2.5 million and Hot Country has 2.4 million. (Just yesterday, Spotify announced that its Discover Weekly playlist is streamed by 40 million users.)

Brands including Kia, McDonald's and Target have already begun buying sponsorships during a beta testing. Spotify said Kia—which sponsored New Music Friday to promote the Kia Sportage—used its week to gain a click-through rate that doubled the overall campaign benchmark.

Here's a video explaining how the playlists will work:

May 27th 2016 Marketing, Technology

Upfronts Vs Newfronts: Controversy Over Online Video Audience Measurement

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What is the appropriate way to compare the audiences of an online video series and a television series? This controversy can also be called… The Upfronts vs. the Newfronts!

The Upfronts is where ad agencies on behalf of advertisers buy TV ads in bulk and also get presented with pitches by the various networks. The Upfronts have been around since 1962. The Newfronts are the digital equivalent, mostly featuring premium online content such as made for YouTube professionally produced series. The Newfronts have been gaining steam over the last few years but actually began in 2008. The Newfronts and Upfronts were just held back to back in New York City.

What’s provoking jabs by TV execs such as CBS CEO Leslie Moonves, is that it’s becoming clear that the Newfronts and Upfronts are competing for the same ad dollars. The budgets from advertisers of premium online digital video is coming out of the original budgets for TV commercials. For instance, ad agency Magna Global announced at the Newfronts that they are shifting $250 million from TV to digital in 2016.

At an Upfront breakfast speech, Moonves told the audience, “When it comes to digital, “The bloom is off the rose and the lack of effect of digital advertising are “absolutely true.” According to Adweek he put it this way:

As for other networks highlighting their success in specific demographics during upfronts, Moonves noted, “different people brag about statistics that they just made up last week.”

Moonves joined the chorus of broadcasters who are swinging back this week at the debatable claims coming from digital companies. “There’s a lot of stats that aren’t true,” said Moonves. “We see [ad] money coming back to the network. The bloom is off the rose [for digital].”

The Wall Street Journal Thursday added fuel to the fire by questioning a comparison of the audience size of the TV show “Pretty Little Liars” and the YouTube show “How to Survive High School”. At the Newfronts Fullscreen said that the online show, “How to Survive High School” has amassed 36 million views since it launched last year, while in comparison “Pretty Little Liars” had 2 million viewers. This is a weak statistic, but it’s meant to illustrate the growing reach of premium online video content, not that the YouTube show is actually more popular than “Liars.” Per WSJ “Pretty Little Liars” has been averaging 2.5 million viewers an episode since January based on seven days of live and recorded viewing.

Statistically it’s an apples-to-oranges comparison because the TV show has 2.5 million viewers every week while the web video show had 36 million views over the course of its existence. But at least those numbers are indisputable, while TV viewing is still relying on Nielsen estimates that are extrapolated from diaries and homes that installed their box.

Another argument was made by a TV advertising trade group:

Via WSJ — “Sean Cunningham, chief executive of the Video Advertising Bureau, a TV-led trade group that has been making the argument that digital outlets are overstating their audiences, said that with Fullscreen’s comparison, “the basic media math falls apart here in every way.”

The VAB made the case that a better way to compare a Web video show with a TV show is to calculate the average audience at a given minute for both shows. The group found that since last August “Pretty Little Liars” averaged over 1.6 million viewers watching live at any given minute when on the air, while “How to Survive” averaged just 850 individual viewers during a given minute.”

That way of comparison is silly and starts to make the hyperbole of online video proponents look sane. Not a good idea if you really want to make the case that online video views are overstated.

By its nature TV shows are mostly viewed live or after being recorded while online video is viewed over a much longer period of time and the period of time right after they are uploaded is irrelevant. Measuring the audience of an online video at a given point in time instead of overall may apply to TV somewhat but obviously way understates the viewing audience of online video. “How to Survive High School” had 36 million views! That is in NFL playoff territory.

Are they all unique? No. But so what? TV viewership is not unique over a multi-week period of time and TV execs don’t seem to have a problem with that. They charge advertisers based on their total viewership for the episode, even if the advertiser is advertising every week where there is substantial overlap in their viewers over time.

Another aspect rarely noted is that digital ads are viewed preroll and cannot be bypassed, whereas TV ads are routinely fast-forwarded through or ignored (bathroom break!) and this is true of the younger age brackets especially. Of course with digital, unlike TV, there is usually only one ad per episode, but that’s likely to change over time.

The point is that online digital is catching and likely surpassing the viewership of traditional TV viewership and it is freaking TV execs out!

The post Upfronts Vs Newfronts: Controversy Over Online Video Audience Measurement appeared first on WebProNews.

May 20th 2016 Google, Marketing, YouTube

Wells Fargo Is Building a Twitter-Powered Conveyor Belt to Dole Out Tech Gifts for Grads

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To celebrate the annual time of year when students trade in their backpacks for the much heavier shackles of college debt, Wells Fargo is building a Twitter-powered conveyor belt to give high school graduates tech prizes for the next phase of life.

On Thursday, the San Francisco-based bank will run a contest on Twitter to give away 100 tablets, smart watches, fitness trackers and good-old-fashioned gift cards—all in the name of graduation season. As part of the #GetCollegeReady campaign, anyone on the social platform over the age of 17 can use the hashtag and tweet Wells Fargo for a chance to win.

The bank is partnering with Dallas agency Moroch Partners and Gratuitous Sets to build the conveyor belt, which incrementally moves a car along a path as Twitter users tweet about the campaign. (Picture a large-scale, tech-savvy Game of Life.) Each person whose tweet pushes the car past one of the milestones will win the prize it passes.

Of course, the contest is aimed at college students, but any adult can win. (After all, isn't everyone a student in the school of life?)

Here's a behind-the-scenes look at the creation of the Twitter-powered set:

Adweek responsive video player used on /video.

May 18th 2016 Marketing, Technology, Twitter

FTC Wins Deception Case Over Faux User-Generated Content–Fanning v. FTC

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Screen Shot 2016-05-11 at 8.43.29 AMJohn Fanning challenged the FTC findings that the website he developed, named, materially misrepresented its attributes. On appeal, the First Circuit affirms. resembled Ripoff Report, but for people. The court’s description of the site and its offerings are worth quoting in full: was a self-proclaimed reputation management website. Its homepage greeted users by asking them if they were “[l]ooking for the latest scoop on a world filled with jerks” and stated that “millions” of people “use[d] Jerk for important updates, business, dating, and more.” The homepage listed several benefits offered, including tracking one’s own and other people’s reputations, “enter[ing] comments and reviews for [other] people,” “[h]elp[ing] others avoid the wrong people,” and “prais[ing] those who help you.”’s main feature was its profile pages. Each page corresponded with a particular individual and displayed that person’s name. The profiles allowed users to vote on whether someone was a “Jerk” or “not a Jerk” and displayed the total number of “Jerk” and “not a Jerk” votes received. users could also post anonymous reviews about a person, which were visible on that person’s profile page. By 2010, contained 85 million profiles pages. Very few of these profile pages had reviews posted and those reviews that were posted were largely derogatory. also had a “Remove Me!” page, which stated that individuals could “manage [their] reputation and resolve disputes” regarding content on their profile pages through a paid subscription. The “Remove Me!” page contained a link to a separate subscription page where users could enter their billing and credit card information to purchase a $30 membership. The subscription page reiterated that only paid members could “create a dispute” about the content of a profile.

Misrepresentations regarding the source of content: The FTC asserted that falsely claimed that the profile pages were “user generated” rather than pre-populated by Jerk. While the site never actually said its profiles were user-submitted, the court says that the language employed by the site would lead reasonable consumers to believe this is the case. Interestingly, the court says even the “post a jerk” functionality may lead users to believe that a bunch of Jerk content is user-submitted.

Fanning took issue with the Commission’s reliance on its user agreement terms, which provided (for example) that users and not the website (Jerk) are responsible for content they post. The court agrees that these types of disclaimers can’t form the basis for misrepresentations about the source the content, but these were not viewed in isolation. When viewed in context, these statements contributed to the “overall net impression” that the profile pages were user generated.

Fanning also argued that even if the site misrepresented the source of content, this was not material. The court disagrees, and says that a misrepresentation need not be tied to something that is for sale:

We see no reason why it would not be a deceptive act or practice to place misrepresentations on websites if those misrepresentations affected consumers’ choice of, or conduct regarding the website. [internal punctuation omitted]

The court says that “a consumer’s belief that had many users or that an acquaintance made his or her profile page would influence that consumer’s decision to use or purchase a membership.”

Did the site misrepresent the benefits of membership?: The court also affirms the FTC’s findings that the benefits advertised by the website (reputation management and dispute their profile pages) were misleading. For example, two investigators paid money to the site and never heard back. Fanning tried to argue that there was insufficient evidence this was a widespread practice, but his conclusory allegations that the site provide benefits to others was insufficient.

Scope of the injunction: The Commission entered an order barring the site and Fanning from “misrepresenting the source of any content on a website” and the benefits of joining a service. Fanning objected to this restriction on First Amendment grounds, but the court says that the Commission may ban misleading commercial speech.

The Commission order also required Fanning to maintain records of any advertisements covered by the order (any time he represents the source of a website’s content). The court says this is reasonably related to the violations in question. The order also required Fanning to give a copy of the order to the principals, officers, and agents of any “current and future employers” having responsibilities with respect to the subject matter of the order. It also required him to notify the Commission of any new affiliation and submit the address of the business (with whom he affiliates). The court says the first restriction is appropriate, given that it’s tied to the order, but the second one is overbroad (it’s not restricted to violations of or responsibilities under the order).

Uh oh. Social networking sites often are populated with content to encourage users to post (I’ve heard it called “seeding”). Sometimes sites gather content from elsewhere (e.g., via scraping). There are high profile examples of this. Does this now mean that such sites have to have disclaimers letting users know that 100% of their profiles are not user-submitted?

The Commission and the court make certain assumptions about the expectations of a user generated site’s consumer. While not explicitly stated, it’s clear they are using the lowest common denominator (or least sophisticated consumer approach).

The court’s reliance on stray statements and product features to support its conclusion was somewhat troubling. It’s something that we have flagged before, but I’m not sure we want the FTC to be in the web-app design business!

The design of the website is intriguing and in theory tries a variant of Ripoff Report’s model (people can say bad stuff about you and if enough people speak up, eventually, the site can be a database of people to stay away from). Even without the possible mischief such a site can cause, I’m not sure we would want such a resource, but it’s an interesting idea to ponder, apart from the obvious Section 230 legal questions.  Obviously, the implementation here was flawed fundamentally, but I can see someone else trying to do this. (Numerous sites already exist in niches. Primarily, in the “cheating” space.)

Eric’s Comments:

“Pay-to-remove” sites are categorically sketchy. Maybe they aren’t illegal, but they suffer an incurable conflict-of-interest when dealing with their paying customers. This is why I don’t view these sites as credible, and I keep waiting for Google to drop the hammer on them and downgrade their rankings due to their credibility problem.

To the extent that “pay-to-remove” sites advertise that they will remove content for a fee and then don’t, that’s an easy case of deception. Based on the FTC’s allegations, I have little quarrel with the second deception claim over the purported benefits of membership.

In contrast, I have issues with the FTC’s deception theory about’s content source misrepresentation. As we know, the FTC hates inauthentic content online, so this enforcement action is consistent with the FTC’s long-term initiative to help online readers know why they are seeing the content that they are seeing. Unfortunately, as we also know, the FTC will never win this battle. Readers routinely misapprehend or don’t understand why they are seeing particular content items, and no degree of FTC exertion will fix that.

In this case, there is pitifully thin evidence that “deceived” consumers into believing that the site content was purely user-generated. hoped to become a user-generated content website, so it wrote its terms that way. Had more people participated with its service, then it all would have been true. So apparently didn’t say loudly enough that, at its ramp-up stage, it contained a mix of scraped and user-generated content.

You know who else could have been accused of similar behavior? Yelp in its early days. Recall that Yelp paid contractors to write reviews in newly covered cities. And don’t forget that Yelp paid folks to stroke the ego of early reviewers. Did Yelp skate by because the FTC didn’t notice or graced it with prosecutorial discretion? Given Yelp’s recipe for success, I assume new review websites routinely follow similar practices. Perhaps the FTC will give them some leeway so long as they don’t adopt an in-your-face name like

In any case, this ruling is an exemplar for attorneys who want to discourage clients from cutting-and-pasting other services’ user agreements. If a client grabs the wrong user agreement template designed for a different user relationship and doesn’t properly edit out all of the incorrect assumptions, the FTC will view that as deceptive. Good to know.

Finally, the court largely endorsed the FTC’s remedies, which I’m sure they are thrilled about. However, even this court couldn’t stomach the FTC’s demand to know every single one of Fanning’s business affiliations, regardless of relevance to the practices at issue in this case. (Here’s the exact language: “respondent John Fanning, for a period of ten (10) years after the date of issuance of this order, shall notify the Commission of the discontinuance of his current business or employment, or of his affiliation with any new business or employment. The notice shall include respondent’s new business address and telephone number and a description of the nature of the business or employment and his duties and responsibilities.”). The FTC taking overreaching positions…?


Case citation: Fanning v. Federal Trade Commission, 2016 WL 2621140 (1st Cir. May 9, 2016)

May 13th 2016 Marketing

Report: Facebook and Twitter Don’t Like You Promoting Your Snapchat Account

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A lot of businesses have been trying their hand at Snapchat, trying to gain some traction on the social media service du jour. One way many have been trying to promote their Snapchat presence is to do so on other social platforms like Facebook, Twitter, Instagram, and LinkedIn.

Many have even gone so far as to make their profile pictures (or Page avatars) their Snapcodes, which are scannable and lead to their Snapchat accounts (in case you’ve wondered why you’ve seen these so often) .

Screen Shot 2016-04-28 at 11.56.16 AM

Some of the social networks aren’t very cool with this practice, however. They no doubt see it as a way to drive traffic to a competitor. According to a new report from DigiDay, Twitter, Facebook, and Instagram have been “discouraging” brands from promoting their Snapchat accounts. From the report:

“They are preventing external links. You cannot add a Snapchat link in your Instagram bio anymore. If you try to do it, it’s not possible,” said Justin Rezvani, CEO of TheAmplify, a technology platform that works with influencers on Instagram and Snapchat.

Many brands and publishers have relied on promotional posts on Twitter. They now face pressure to remove the Snapchat links, according to sources. The Huffington Post, for instance, used to promote its Snapchat account via its Twitter avatar; now it isn’t. The Huffington Post did not return a request for comment about why it changed. The Information reported on the disappearing Snapchat codes earlier this month and said that The Huffington Post still sparingly uses its Snapcode on Twitter. Sources familiar with Twitter’s policies said that while the Snapcodes are not against the rules, they are frowned upon.

There’s not a lot of clarity around all of this right now, but more of a vague sense that it might be better to back off of the Snapchat account promotion a bit. As social media timelines utilize an algorithmic approach, businesses aren’t going to want to give any reason to be looked down upon (or “frowned upon” if you will).

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April 29th 2016 Facebook, Marketing, Social Media, Twitter

Infographic: People Have Smaller Attention Spans Than Goldfish (Marketing Tips For Overcoming This)

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Last year, Microsoft released some research finding that the average attention span for a goldfish is about nine seconds and that for people of the smartphone era, it’s even less than that at eight seconds. It’s somewhat troubling, but not all that surprising when you think about all the content being blasted at you every second from a device that you keep close by at all times.

While marketers have more tools in their arsenals than ever, cutting through the noise (not to mention the content of substance) is no easy deed. Last fall, Wyzowl put together this infographic that takes this goldfish to human comparison into consideration and provides some advice on how to overcome the issue.

While the infographic has been out there since October, it has been popping up in a few places in recent days, bringing it to our attention (I first saw it at Social Media Today).

The eight-second rule for grabbing attention in videos is particularly interesting this week as Google just introduced a new six-second, unskippable video ad format.

Images via iStock, Wyzowl

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April 28th 2016 Marketing

Email Marketing Only Becoming Bigger Priority For Marketers

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Email on Acid recently released the results of a survey of 3,550 professionals (including marketers and developers) from last fall, looking at development, design, and marketing trends and behavior in email marketing. Based on this, email marketing is going to stay a top priority for businesses this year.

The company found that 71.8% are planning to spend more time on email production while 86.7% intend to increase email marketing budgets in 2016. Of those who identified as marketers, 91.2% of them are willing to spend more time on email marketing in the coming year.

The survey found that 69.1% spend between one and five hours developing a typical email campaign and that 30.6% plan to spend an additional 20+ hours per month on their email marketing programs. 23.5% will send an average of over 30 emails per month this year.

86.7% of all respondents intend to spend more money on email marketing this year. 60.2% expect to increase budget on technology and tools, while 38.4% expect to do do on list growth. 37.7% intend to increase dollars on development, and 32.5% expect to spend more on design.

“Responsive design is becoming increasingly popular, with 56.9 percent of survey respondents reporting to use responsive templates,” says Email on Acid’s Tanya Wheeler-Berliner. “Hybrid fluid design is less popular, with 7.9 percent saying they use templates coded with this technique and 19.9 percent saying they use both responsive and hybrid fluid design. Only 15.2 percent report to use neither coding method.”

53% expect to use dynamic content elements in their campaigns in 2016. 45.8% expect to use merge tags for personalization. 26.6% intend to use CSS navigation, while 22.5% will use HTML5 video and 20% will use carousel hero images.

“The survey revealed that a third of marketers believe strategy development (33.3 percent) will have the biggest impact on their email marketing program in 2016,” writes Wheeler-Berliner. “Additionally, improving email content and providing contextually relevant email experiences were cited almost equally by about one-third of all respondents as marketers’ number one goal. Finally-not surprisingly-coding for email was identified as a perennial pain point of the production process. Tools that can fix code for you was rated the top idea that would help the email creation process (39.8 percent), followed by a more streamlined testing system (24.6 percent) and better project management tools geared for email (22.3 percent).”

Email on Acid put out this infographic highlighting the survey’s findings.


You can find the full report here.

Images via iStock, Email on Acid

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April 28th 2016 Marketing

Upcoming Marketing Webinars From Facebook Cover Important Topics

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Facebook announced eight upcoming webinars tackling various aspects of marketing with Facebook, Instagram, and Messenger. A couple of them are this week.

On Tuesday, April 26, they’re hosting one on running campaigns across Facebook, Instagram, and the Audience Network, with guidance on when to use the platforms together as opposed to separately. Facebook’s product team will cover advantages cross-platform advertising, which include incremental reach and better performance, according to the company.

Then, on Thursday, April 28, they’ll dig into getting more out of Facebook Lead Ads. This will look at benefits of the ads and provide tips on how to use them for higher quality leads.

After these, there will be webinars on May 5, May 26, June 9, June 15, June 29, and June 30. These will cover advanced performance marketing on Instagram, Messenger best practices, Dynamic Ad best practices, going global, Slideshows on Facebook, and Local Awareness Ads respectively.

You can find the full webinar series and descriptions of each one here.

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April 25th 2016 Facebook, Marketing, Social Media

Q1 2016 Quick Links, Part 4 (Copyright, Marketing and More)

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Photo credit: 3D Quick Link Crossword // ShutterStock

Photo credit: 3D Quick Link Crossword // ShutterStock


* Naruto v. Slater: “Naruto is not an “author” within the meaning of the Copyright Act.” I heart Naruto!

* Handshoe v. Abel, 1:14-cv-00159-KS-MTP (S.D. Miss. Jan. 8, 2016) (cites omitted):

Given that there is no dispute that the minor child drew the image, and therefore held a copyright in it under 17 U.S.C. § 102(a)(5), nor is there a dispute that Plaintiff posted the image without permission of the copyright owner or his agent, the only avenue through which Plaintiff could have used the image was through the doctrine of fair use. Plaintiff does not plead that his use of the image constituted fair use. More importantly, though, Plaintiff does not allege that Yount and Abel did not in good faith consider any fair use defense he may have had before issuing the DMCA takedown notice. See Lenz v. Universal Music Corp., 801 F.3d 1126, 1132-33 (9th Cir. 2015) (holding that the DMCA requires copyright owners to consider fair use before issuing a takedown notice under § 512). In fact, Plaintiff’s Amended Complaint excerpts the takedown notice, which states that Yount and Abel did “have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” As fair use is an authorized use under copyright law, the Court can only assume, absent any contrary allegations from Plaintiff, that Yount and Abel considered in good faith the applicability of the fair use doctrine in forming this belief. The Court therefore does not find that Plaintiff has sufficiently pleaded a misrepresentation under § 512(f).

* Farouk Systems, Inc. v. AG Global Products, LLC, 2016 WL 1322315 (S.D. Tex. April 5, 2016):

Farouk admits that the two images on its Facebook page were created by copying a quotation and images from Shutterstock, a provider of royalty-free images. In Image No. 1, the Farouk employee combined an unaccredited quotation with images of a comb, scissors, and brush from Shutterstock. In Image No. 2, the Farouk employee combined a quote from Picasso with a banner reading “Snips of Wisdom” and the image of a pair of scissors. Even though the images may be copyrightable as compilations, the copyright extends only to the original material contributed by the Farouk employee, not to the preexisting material borrowed from other sources. See 17 U.S.C. § 103(b). Each of the elements of Image No. 1 was copied from another source. Additionally, although Defendant’s version of Image No. 1 is extremely similar to Plaintiff’s, it is obvious that it is not a copy. In Image No. 2, the original elements added by a Farouk employee are the “Snips of Wisdom” and the image of the scissors. Neither of these elements is included in the allegedly infringing image on AG’s Facebook page. As a result, AG is entitled to summary judgment on the copyright infringement claims regarding Images No. 1 and No. 2.

Plaintiff alleges also that a photograph of Gulamani on his personal LinkedIn profile page constitutes copyright infringement. There is no evidence that, at the time the photograph was presented on Gulamani’s LinkedIn page, Farouk possessed a valid copyright for the photograph. It is undisputed that the photograph was taken of Gulamani by a third-party photographer. There is no evidence that the photographer transferred the rights to the photograph to Farouk in a written assignment as required by 17 U.S.C. § 204(a). Farouk argues that the photograph was taken while Gulamani was employed by Farouk, but the “work for hire” provision of the Copyright Act provides copyright protection under certain circumstances to an employer where the person creating the work is an employee. See 17 U.S.C. § 201(b). There is no similar provision where the subject of the work, not the creator of the work, is the employee. Absent evidence that Farouk had a valid copyright in the photograph, Gulamani is entitled to summary judgment on the copyright infringement claim.

As an additional, yet equal, basis for summary judgment in favor of Defendants on the copyright infringement claims, Plaintiff has conceded that it is seeking only an award of statutory damages and injunctive relief on its copyright claims. It is undisputed that Farouk did not attempt to register its copyrights in the two images and the photograph until April 21, 2015, after the alleged infringement and, indeed, after this lawsuit was filed in February 2015. The timing of the registration applications renders any claim for statutory damages and attorneys’ fees unavailable.

Copyright lawsuits over headshots are stupid!

* i09: Cosplayers threatened with legal action for hotel carpet costume

* Vice Sports: Who Owns Tattoos?

* Eriq Gardner: In Deal With Fox, Dish Agrees to Disable Ad-Skipping for 7 Days After Shows First Air

* CNET: Australia shelves a manual graduated response notification system because it cost too much.

* Malibu Media, LLC v. Weaver, 2016 WL 1394331 (M.D. Fla. April 8, 2016): “the Communication Decency Act is inapplicable to copyright infringement actions”

* New Republic: The Mass-Market Edition of To Kill a Mockingbird Is Dead

* Phantomalert, Inc. v. Google Inc., 2016 WL 879758 (N.D. Cal. March 8, 2016):

To the extent these allegations support an inference that the locations of some of the Points of Interest do not reflect the actual location of the corresponding Driving Condition and also are not purely a function of the need to give drivers notice as they approach a particular Driving Condition, the Court finds that PhantomALERT has sufficiently alleged that these individual Points of Interest reflect a “creative spark” and therefore, like the prices in CDN v. Kapes., are entitled to copyright protection…

PhantomALERT has not alleged that any specific Point of Interest whose location involved the creative process described in the FAC appears in the Waze application at the same location; nor has it alleged any specific facts suggesting that the overall arrangement, selection or categorization of the Points of Interest is preserved in the Waze application such that there is “substantial similarity.”

Prior blog post.

* Priceonomics: How a College Student Used Creative Commons to Dominate Political Photography

* MIT: The Rise of Visual Content Online

Other IP

* Reuters: U.S. to send attachés to foreign markets to boost digital trade. It’s about time the USTR started thinking about foreign trade barriers to our domestic tech community.

* Science: U.S. charges drug researchers with sending trade secrets to China, but will case stand up?

* Looks like a competitor gamed the marshals with respect to the Hoverboard ex parte seizure at CES. Ex parte seizures based on trade secrets are bad news.

* Tyler, TX Brags About Its “Friendliness” to Patent Trolls

Search Engines

* Google, Inc. v. Hood, 2016 WL 1397765 (5th Cir. April 8, 2016). While the court dissolved the injunction against Hood’s overreaching subpoena, the court introduced the issues:

This lawsuit, like others of late, reminds us of the importance of preserving free speech on the internet, even though that medium serves as a conduit for much that is distasteful or unlawful. See, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (holding unconstitutional a sheriff’s threats to credit card companies to stop doing business with a website that hosts classified ads for prostitution). Also like other recent litigation, this case implicates section 230 of the Communications Decency Act—Congress’s grant of “broad immunity” to internet service providers “for all claims stemming from their publication of information created by third parties,” which we and other circuits have consistently given a wide scope. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); see also Doe v., LLC, — F.3d —, 2016 WL 963848, at *3–9, 14 (1st Cir. Mar. 14, 2016) (affirming dismissal based on section 230 despite appellants’ “persuasive case” that the defendant “tailored its website to make sex trafficking easier” and stating: “If the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation.”).

The court added in a footnote:

we do not suggest that section 230 of the CDA would not apply if Hood were to eventually bring an enforcement action, or cannot be applied at the motion-to-dismiss stage. Indeed, several courts have applied the provision to dismiss claims against Google

Prior blog post.

* Danny Sullivan: 10 big changes with search engines over my 20 years of covering them

* Washington Post: Google now shows presidential campaign finance data directly in search results. Good example of how deciding what information to present is hardly neutral.

* Ars Technica: Microsoft looks to be retreating from EU antitrust fight against Google. Re/code: Microsoft, Google agree to stop complaining to regulators about each other. A thousand private school headmasters are weeping at the resulting dropoff in their enrollments of lawyers’ kids.

* The Verge: Google is letting celebrities and businesses post directly to search results

* AdWeek: 6 Reactions by Marketers to the End of ‘Free Social’ as the Algorithm Era Unfolds


* Novation Ventures, LLC v. J.G. Wentworth Company, LLC, 2015 WL 9695257 (C.D. Cal. May 15, 2015):

While Plaintiff alleges in the Complaint that Defendants have “driven up the cost of being in the 1st, 2nd, or 3rd position so as to effectively preclude or minimize the competitive impact of other entrants,” Plaintiff does not explain how this forecloses it from competing in the market. Plaintiff does not, for example, allege that it attempted to bid on one of the top AdWords listings but was not permitted to do so. In fact, Plaintiff alleges that “JG Wentworth and Peachtree are able to consistently grab two of the top three or four search listing results,” but it does not suggest that Plaintiff could not bid for and be awarded one of the other remaining one or two available spots. Accordingly, Plaintiff has failed to identify any injury that it has suffered that is of the type that the antitrust laws were designed to prevent.

In a footnote:

Plaintiff essentially claims that it has been injured because Defendants have driven up the cost of obtaining one of the top four AdWords listing spots, which has effectively priced Plaintiff out of the bidding process. Yet as Defendants argue, that is not necessarily an antitrust violation. If Plaintiff has suffered lost profits or a loss of market share because it is unable to keep up with price competition, it is because Defendants have made obtaining these desirable spots more competitive.

* In re Rocket Fuel, Inc. Securities Litigation, 2015 WL 9311921 (N.D. Cal. Dec. 23, 2015). Rocket Fuel may have overclaimed its anti-ad fraud technology

* Search Engine Land: Google to bloggers: Disclose & nofollow links when reviewing gifted products. Following in the footsteps of the FTC’s Endorsement and Testimonials Guidelines.

* Rebecca: seller-incentivized reviews might be misleading (and violate FTC guidelines)

* New York Times: An Online Deal Just for You (Oh, and Everyone Else, Too)

* New York Times: “Clear Channel Outdoor Americas, which has tens of thousands of billboards across the United States…has partnered with several companies, including AT&T, to track people’s travel patterns and behaviors through their mobile phones.”

* Boston Globe: casinos are using online slot machines, paying worthless virtual credits, with better payouts than the machines in the physical casino. Is that false advertising?

* Priceonomics: How Esurance Lost Its Mascot to the Internet

* Recorder: Facebook Settles Suit Over Purchases By Minors


* WSJ: Donald Trump’s Long History of Litigation

* Cloudpath Networks, Inc. v. SecureW2 B.V., 2016 WL 153127 (D. Colo. Jan. 13, 2016)

the Court ultimately agrees with Second, Fourth, and Ninth Circuits’ shared conclusion: “exceeds authorized access” in the CFAA does not impose criminal liability on individuals who are authorized to access company data but do so for disloyal purposes; it applies only to individuals who are allowed to access a company computer and use that access to obtain data they are not allowed to see for any purpose. Given this, Cloudpath’s CFAA cause of action (Count One) is dismissed with prejudice to the extent Cloudpath alleges CFAA violations by any Defendant who was authorized to access the relevant information for at least some purpose at the time of the alleged violation. This dismissal also extends to any allegation of conspiracy to commit, or vicarious liability for, such a violation.

* New Yorker: sex offender registries sound like a good idea, but are they being implemented properly?

* Buzzfeed: How High-Flying Zenefits Fell To Earth

* Congressional Research Service: What Does the Gig Economy Mean for Workers?

* Super profile of Mike Masnick. I’ve never understood how Mike achieves his combination of speed, productivity & accuracy. Another great interview with Mike Masnick. He even produces interviews more quickly than I can read them.

April 24th 2016 Marketing

Sketchy Suit Between Native Advertising Competitors Produces Sketchy Section 230 Ruling–Adblade v. RevContent

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I chose the popcorn, but maybe I should do both. Photo credit: "Big Bucket of Popcorn" // ShutterStock

I chose the popcorn, but maybe I should do both. Photo credit: “Big Bucket of Popcorn” // ShutterStock

This case is filled with sketchiness. First, the litigants compete in the “native advertising industry,” which doesn’t have a great reputation (and this lawsuit isn’t likely to improve it). Second, the ads in question promote wrinkle creams, diet pills and muscle builders–the kinds of products that advertising law professors assume will be regularly overpromised and underdelivered. Third, the plaintiff believes the defendant is poaching advertisers through overclaims and other manipulative tricks–legitimate concerns, but perhaps tinged with irony in this industry context? Maybe the plaintiff views itself as the white knight that will save the industry from a race to the bottom. Fourth, the plaintiff itself recently lost a defamation case brought by a different competitor, and the FTC is regularly sniffing around native advertising and discretionary health products like the ones at issue here. With all of this litigiousness in the air, it makes me wonder if the niche will erupt in a fireball of litigation. Finally, I can’t help noting the litigants’ names are generic dot com cliches: the plaintiff is “Congoo,” a/k/a “AdBlade,” which is owned by “Adiant”; and the defendant is “RevContent.” In light of all the sketchiness, while reading the opinion I couldn’t decide whether to grab a bucket of popcorn or a bloodsplatter-proof poncho. (Or maybe it’s just my diet pills are giving me anxiety).

After reading the court’s short opinion, I remained unclear about exactly what RevContent allegedly did wrong, so I pulled the complaint seeking further clarity. Unfortunately, this didn’t really help. The complaint extensively details alleged problems with the implementation of three native advertising campaigns associated with RevContent (for the aforesaid wrinkle creams, diet pills and muscle builders), and AdBlade believes it’s losing customers to RevContent due to price competition that may be assisted by false advertising. Yet, after reading the complaint, I’m still not sure who wrote the allegedly problematic native advertising content or who controls the various product decisions that contribute to the alleged falsity. Attributing these actions to the defendant (rather than its advertisers or other third parties) ordinarily seems like an essential part of the plaintiff’s prima facie case.

Indeed, the plaintiff practically writes the defendant’s Section 230 arguments when the complaint says: “Plaintiff, and other native advertising companies, operate as an “intermediary” between (a) the actual advertisers, i.e., those businesses offering products and/or services for sale (hereinafter “Advertisers”), and (b) the news, information and content websites that publish the native advertisements.” Yet, the defendants’ Section 230 motion to dismiss fails. Why?

The court cites the following allegations from the complaint:

• Defendants have published or caused to be published many impressions of native advertising unit ads (“Defendants Ads”) with various Published Websites, including Publisher Websites that were previous clients of Plaintiff.
• Many, if not most of Defendants’ Ads and the Advertisement Websites to which the Ads redirect unsuspecting consumers, employ false and misleading advertising intended to deceive innocent consumers out of the significant monies by charging their debit cards or credit cards.
Defendants have employed the above stated false and misleading representative in advertising to generate greater income from their Ads and those of Defendants’ Advertisers [the court added the emphasis to the complaint]

Notice the tricky drafting. The defined term “Defendants Ads” lumps together items that could come from a variety of sources. The court takes the bait:

Construing the allegations in the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently pled that Revcontent was responsible in part for the development of the subject advertisements. Thus, at this juncture, the Court finds that Revcontent has not established that it is entitled to immunity under § 230 of the CDA.

The plaintiff alleged that the defendant wooed advertisers to switch allegiances based on false promises about its advertising services. Those first party representations should be outside the scope of Section 230, a point the court acknowledges more expressly in its 43(a) Lanham Act false advertising discussion. However, typically third party ads, and third party websites promoted in those ads, should be clearly covered by Section 230. Unfortunately, the court bypassed all of that nuance in its pithy Section 230 discussion. What the court should have done instead was expressly identify the parts of the plaintiff’s complaint that were preempted by Section 230; which would have honed the dispute for the next round(s). We saw the more nuanced handling of a similar situation in the Tanisha v. Chandra ruling. Perhaps the court will become more exacting about the facts at the summary judgment stage.

Note: I approached both sides’ lawyers for a comment about the ruling. The defendants declined. The plaintiffs did not respond by posting time.

Case citation: Congoo, LLC v. Revcontent LLC, 2016 WL 1547171 (D. N.J. April 15, 2016). The plaintiff’s complaint.

April 21st 2016 Marketing