Does WOM or Social Network Marketing Create Agency?

We are now near the end of January, and I realize it has been a little while since my last post.  Before leaving LexisNexis, I prepared a proposal, formatted as a white paper, for a position specializing in information management.  At the same time, I wrote a post here on how online social networking technology impacts marketing strategy.  I’m looking into writing on the subject, and how it intersects with law.

Social networking technology is just one aspect of Web 2.0, the paradigm that was encapsulated and named only four-and-a-half years ago by IT publisher and guru Tim O’Reilly.  As such, social networking should be considered as one of many related technologies.  In fact, it shouldn’t be seen as a technology at all, but as an interaction platform, a way both of enabling interaction between participant users and also of nurturing those interactions.  And like any nurturing mother, the platform controller infuses the nurturing with whatever flavour suits it.

O’Reilly summed up Web 2.0 as “the move [by business] to the Internet as a platform.”  Seeing the Internet as a platform instead of as a mess of often unrelated technologies is key to understanding both the interconnectedness of Web 2.0 and the resultant online social networking phenomena.  The various technologies always were related, but this was not apparent as they (e-mail, web pages, newsgroups, chat, etc.) manifested independently.  The interconnectedness is now apparent.  It is part of the user experience, not just the underlying technology.

Users are now able to connect their web toys in uncountable ways.  From wired broadband to wi-fi hotspots to 3G iPhones, BlackBerries, and other smartphones, to the variety of social networking platforms (Facebook, MySpace, Twitter, LinkedIn), cloud computing web-based applications (a Google app world?), and user-generated content (YouTube, etc.), connectivity is the emergent über-paradigm.  Connectivity is the defining factor of this post-industrial information age.

I’ll climb down from the soapbox now, put down the megaphone, doff my cyber-evangelist’s cloak…

What does this mean to business, and to the law that affects business?

Read the rest of this entry »

What would you call open-source marketing?

President-Elect Barack Obama raised $264.5M through April 30, 2008, thrice that raised by his opponent, Senator John McCain. Studies at the FEC, The Campaign Finance Institute, The Center for Responsive Politics , George Washington University, indicate that a massive amount of this difference was through small contributions (many of which were repeat donations by the same donors) obtained through online resources. The marketing of the Obama-for-President brand embraced social networking; when Sen. McCain attempted to allow his supporters to use YouTube to swell his popularity, he was thwarted by the rigid intellectual property rules he helped establish.

Some time ago, I posted about Ford’s order to a black Mustang fan club to stop publishing a calendar of pictures of their cars. I wonder what an actuary would calculate as the net from loss of goodwill from such a suit as compared to the gains from attempting to extend their intellectual property.

As would not surprise anyone who has looked at the fabulous wooden instrument in the corner of my living room, I am a member of the Facebook group for fans of the Fender Telecaster electric guitar. One day, I might add a picture of my fifteen-year-old Tele to the group’s album.

In 1999, Star Wars fans like me were subjected to Jar Jar Binks, “Annie” Skywalker, naked C-3P0, and the rest of an unprecedentedly anticipated movie in which the menace seemed to be somewhat, well, phantom. Why was Star Wars, Episode I so eagerly anticipated? Did the fire come from the official trailers and marketing put out in various media by Lucasfilm? Or was it from a massive underground campaign of fanvideo, promulgated through such unofficial sites as theforce.net? George Lucas loosened his grip on the trade-marks and copyrights of his celluloid empire, rewarding his fans with the right to publish their labours of sycophantic love, and in turn reaping his own rewards at the box office when the good, but not great, “prequel” obliterated box office records in its opening weekend.

So what is this grassroots phenomenon? Read the rest of this entry »

EU suggests reason and logic behind ACTA

I’ve just finished reading the ACTA Fact Sheet, updated November 2008.  Here is some preliminary information:

1. ACTA is the Anti-Counterfeiting Trade Agreement.
2. The subtitle “Fact Sheet” is footnoted, “This fact sheet purports to explain the objectives of the ACTA negotiations.  It does not in any way interpret or prejudge on the provisions of a future agreement.”
3. This document was prepared by the EU’s European Commission on Trade.
4. You can find the Fact Sheet here:  http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_140836.11.08.pdf

This is the same ACTA that, based on early leaks that were likely from American sources, had many of us burning our passports, locking our mp3 players in vaults, encrypting our laptops, and generally vowing never to cross the border again.  (Earlier post:  http://weblawg.costinmedia.com/wp/intellectual-property/riaa-and-mpaa-hijack-the-border/)

My source of early panic was an article in that cauldron of superlative journalism, the Vancouver Province, to which I’d been directed by a friend.  Reading it, sucked in by the force of its writing, which was thoroughly unmitigated by journalistic integrity or what we academics call “checking your facts and citing your sources,” I felt inclined to stay forever north of the 49^th, my jaw dropped in disbelief that this is what border resources would be used for.

What’s the “this”?  Well, it seemed that an international coordinated effort to stop trafficking in counterfeit data and media at the border by peering into individual travellers’ mp3 players, laptops, USB keys, etc., on the hunt for that unauthorized copy of P. Diddy’s latest ditty, or Jim Carrey’s newest caper.

Being an international treaty, ACTA is exempt from Charter scrutiny or any of the other legislative checks we rely upon.

And, of course, there was also the fact that U.S. Border guards were already tackling what they saw – well beyond their dubious competency – as IP infractions.

So we had a reason to fear ACTA. Read the rest of this entry »

New ways of looking at video game IP

I suggested the other day that we use video games as the industry in which to consider hybrid IP for software.

I suggested this because video game software, more than any other kind of software, still retains the elements that were patentable in their mechanical (i.e. non-virtual) predecessors.  Let’s look briefly at Monopoly, U.S. Patent # 2,026,082, filed in 1935.  The patent contains sketches of all of the components in the box (the board, cards, playing pieces, and dice), and the following opening paragraph:

“This invention relates to board game apparatus and is intended primarily to provide a game of barter, thus involving trading and bargaining.”

Thus we all three patentability requirements met.  Monopoly is novel (although this was contended, as it had a predecessor), non-obvious (it is in fact an invention), and useful (it “provide[s] a game of barter”).  The patent on the whole, 14 pages long, includes those sketches, as well as the rules of the game, and a list of 9 ways in which Charles Darrow restates his claim over the invention.

Here’s what I got, reading over the patent and thinking about games as closed systems versus (other) forms of software expression:

Games are closed systems.  There is a wholeness to the game that maintains, strongly, its connection to its pre-software past.  This is why the video game industry is an ideal arena to test the hybrid model.

All of the elements of the earlier game survive the transition to digitization.  Although the dice, cards, board, etc., are all virtualized, they all still exist. Read the rest of this entry »

Software IP and Games – which model applies?

At the moment, video games, because they are software, are covered by copyright.  But traditionally, games were covered by patent.

Hmm.  I’ve argued before that software should be sui generis, governed by a hybrid model of patent and copyright:

The Source Door: When and How Far should it be opened?
Reforming the Intellectual Property Regime for Computer Software through a Hybrid Protection Model.

Perhaps video games should provide the legal arena for this battle.  How does one then fit user-created collaborative content into such a model?

I smell a thesis coming.

Remembrance Day – Poems by Wilfred Owen

I wrote a paper on these two poems a number of years ago.  I found them much more powerful than In Flanders Fields. Wilfred Owen was a British soldier who died a week before the Armistice that ended World War I.  I’ll let them speak for themselves: Read the rest of this entry »

Are there benefits to “piracy”?

The pro-copyright, pro-DMCA, anti-counterfeit lobby groups would have you believe that all unauthorized reproduction (and distribution), colloquially known (inaccurately) as piracy, is horrid for the industries concerned, and is destroying them.  They go so far as to call it theft, which it isn’t.  It can’t be reduced to a single term, like “theft” or “piracy”, because it is not actually a crime, but the commission of an otherwise legal act made tortious (wrong in a civil, as opposed to criminal way) by the lack of authorization.  Theft is in and of itself a crime, as is piracy.  Copying is not.  Copying without authorization is a civil wrong.  I’m going to end that discussion before I get into a rant.

Anyway, I want to take a different tack:  Many say that unauthorized copying actually benefits the concerned industries.  Do you think this is true?  If so, which industry benefits the most?  I’ve created a poll, which is to the left of this post, and I would like you to let me know what you think.  Feel free to comment to this post.  I’ll repeat the options below:

Which industry benefits the most from unauthorized reproduction/distribution (i.e. “piracy”)

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• Software - Standards are reinforced and the companies profit through the necessity created by ubiquity. Ubiquity creates a spiralling increase in demand.
• Mainstream music - Popularity thresholds are crossed that are similar to the “standards” concept. The overall popularity increase yields revenue through the popularity-increases-demand model, with a net increase over the everything’s-paid-for model that has lower popularity; touring revenues further increase from the increase in popularity.
• Long-tail, independent label, and other rarer musical acts – The exposure through shared music now is no different from years ago; fans of these genres are likely to purchase albums (often directly from the artists at higher profit margin) and go to small live venues.
• Movies - Popularizing the brand in anticipation of the sequel is more important than initial returns. The movie industry in now a branding and franchise industry. In an industry now increasingly dependent on sequels and the application of the “franchise model” to entertainment, building a brand through any means whatsoever is beneficial.
• No one - Everyone loses when unauthorized reproduction is rampant. Bring on the Copyright Czar!

Read the rest of this entry »

Michael Lifshitz is asking for your support

[Note from the Admin:  Michael Lifshitz is a friend of mine from many years ago.  He is a chartered accountant, financial advisor, and holder of an MBA.  He is also a stand-up comic.  Michael has a physical disability and has run into an issue with the Quebec government witholding further adaptive assistance, even though the current problem is likely due to a restriction they themselves have imposed.  Michael is asking for support with a petition, and I've given him some well-deserved soapbox space here. --Jeremy]

Dear Friends,

As many of you are aware, I use an electric wheelchair to get around longer distances. In order to transport the wheelchair, the van must be adapted. The cost of the van adaptation is $32,000.

The Societe Assurance Automobile du Quebec has a program by where it pays for a van adaptation every five years. When I received my first van adaptation, I purchased a van with every expectation that it would last the five years. At the time I had wanted to purchase a Japanese van, but the only models which the government would adapt was a Ford, GM or Dodge. Read the rest of this entry »

Competition and the NHL

It’s hockey season, and that’s the reason for the poll that’s been on the sidebar.  However, a reader asked me to open it up for discussion (i.e. put it into a post) so that’s what I’m doing.

The issue is this:  Jim Balsillie, if I’ve got my facts straight (and feel free to correct me in the comments), wants to open an NHL franchise in Hamilton.  Since the NHL isn’t watering down expanding again, his remaining option is to purchase and move an existing franchise, preferably one that is neither profitable, popular, nor culturally significant to the locals (e.g. Nashville, unlike Winnipeg, but I’ll do my best to avoid that rant).

The NHL is blocking the move for spurious reasons.  Some discussion has focused on questionable dealings between existing team ownership groups and the Commish, Gary “How many sports can I destroy” Bettman.  Without any facts to go on, I’m not going to suggest that there is any truth to those suggestions.  You can look them up yourself and decide.

Other discussion has suggested that Toronto is blocking the entry of a competitor in the Southern Ontario market.  There are three NHL teams already in the neighbourhood (Toronto, Buffalo, and Detroit), and more than enough population in Hamilton and the rest of Southern Ontario / Western New York / Eastern Michigan to at least entertain another franchise and let it sink or swim on its own merits.  But the League refuses. Read the rest of this entry »

Leadership Qualifications in a Democracy

Power to the people, right?  That’s the rallying cry of democracy.

A government of peers, the message of Gov. Sarah Palin, is not a new message.  Stephen Harper rode that message to the Prime Minister’s Office here not long ago, his road greased by the neoprene wetsuittails of Stockwell Day and the Brylcreem of Preston Manning.  Harper’s predecessors in the new Conservative Party, but a shadow of the Progressive Conservatives of this country’s history, were cheerleaders of a “grassroots” movement.  For allt he folksy wisdom seemingly encompassed by a grassroots movement, it is actually a term that, when you think about it, means being governed by the lowest common denominators of society – those denominators being both low and common.

You’re going to accuse me of being elitist, as though that’s a bad thing.  When taking an oath to execute the highest governing offices in a large and variegated populace, a certain quantum of elite – meaning top-shelf, high-end, and superior in quality – talent is a good thing.  Intelligence, education, experience, and the rare gift of synergistic comprehension – and reconciliation – of opposing concepts are qualifications to these offices.

I am going to go out on a limb here, and say something that sounds a bit boastful, but for a reason: Read the rest of this entry »