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	<title>Concurring Opinions &#187; Advertising</title>
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		<title>The Disconnect Between What People Say and Do About Privacy</title>
		<link>http://www.concurringopinions.com/archives/2012/02/the-disconnect-between-what-people-say-and-do-about-privacy.html</link>
		<comments>http://www.concurringopinions.com/archives/2012/02/the-disconnect-between-what-people-say-and-do-about-privacy.html#comments</comments>
		<pubDate>Wed, 08 Feb 2012 18:55:34 +0000</pubDate>
		<dc:creator>Joseph Turow</dc:creator>
				<category><![CDATA[Advertising]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=57251</guid>
		<description><![CDATA[<p>In the course of my research I’ve been fortunate to be able to speak at length with media planning executives and practitioners.  They spend much of their time figuring out how to use data to send commercials to targeted segments and individuals online.  When the conversation turns to privacy issues, they invariably dispute that the public is genuinely concerned with the topic.  “When they respond to your surveys people may claim to worry about privacy issues,” the industry practitioners tell me. “But look at what they actually do online.  People will give up personal information just to get a discount coupon.  And look what they reveal about themselves on Facebook!  The disconnect between what people say and do shows that policymakers and academics misjudge the [...]]]></description>
			<content:encoded><![CDATA[<p>In the course of my research I’ve been fortunate to be able to speak at length with media planning executives and practitioners.  They spend much of their time figuring out how to use data to send commercials to targeted segments and individuals online.  When the conversation turns to privacy issues, they invariably dispute that the public is genuinely concerned with the topic.  “When they respond to your surveys people may claim to worry about privacy issues,” the industry practitioners tell me. “But look at what they actually do online.  People will give up personal information just to get a discount coupon.  And look what they reveal about themselves on Facebook!  The disconnect between what people say and do shows that policymakers and academics misjudge the extent to which the public really cares about the use of data about them by marketers.”</p>
<p>It’s an interesting argument and one that must be taken seriously.  One response I give is that people are indeed complex, but their behavior doesn’t mean they are two-faced when it comes to privacy.  Rather, findings from national telephone surveys (conducted by me and with colleagues) going back to 1999 show that the majority of Americans are deeply unaware about what goes on with their information about them online.  They know companies follow them, but they have little understanding of the nature of data mining and targeting.  They don’t realize companies are connecting and using bits of data about them within and across sites.  They think that the government protects them regarding the use of their information and against price discrimination more than it does.  And over four surveys, about 75% of adult Americans don’t know that the following statement is false: “When a website has a privacy policy, it means that the site won’t share information about you with other companies without your permission.”</p>
<p>“Why don’t Americans know such things?” industry practitioners often ask me after I recite such findings.  “And why don’t they use anonymizers and other technologies if they are so concerned about leaking data about themselves?”  My answer to that typically takes the form of “people have a life.”  Learning ins and outs about the online world can be complex, and people have so many priorities regarding their families and jobs.  Too, when they go online, whether to Facebook, YouTube or a search engine, they want to follow their needs and leave.  In moments of rational contemplation they may well indicate web wariness.  But online their need to accomplish particular goals and often engage in emotional relationship-building may trump rationale calculation.  Chris Hoofnagle, Jennifer King, Su Li, and I inferred this pattern even from young adults—men and women 18-24 who common wisdom suggests wouldn’t care a whit about privacy.<a name="fr1" href="#footnote-1"></a>[1]</p>
<p>There is an additional explanation for people’s lack of knowledge about how data about them are treated under the internet’s hood.  Unfortunately many of the most prominent digital-marketing actors engage in a kind of doubletalk about their use of information.  It’s a consistent pattern of public faux disclosure that may simultaneously encourage people’s confidence in the firms’ activities and obfuscate the privacy issues connected with those activities.  And some of the biggest players engage in this privacy-doublespeak dance.</p>
<p>Consider how Google recently told its users about its decision to link information about their activities across its most popular services and multiple devices beginning March 1.  The consolidation was clearly a response to a number of developments.  Strategically, Google wanted to use its previously siloed data in ways that would be competitive to its increasing competitor, Facebook.<a name="fr2" href="#footnote-2"></a>[2]  More tactically, Google was motivated by the firm’s need to meet a European-Union directive that beginning May 1 all advertisers must obtain consent from their customers to allow websites to set cookies.  In the words of the U.K. trade magazine <em>New Media Age</em>, “Consolidating its multiple privacy policies, of which it has over 60, for all its accounts will mean consumers only have to give consent once for it to be effective across all Google products.”<a name="fr3" href="#footnote-3"></a>[3]</p>
<p>In the U.S. Google faced a major risk with the data consolidation.  The company had to know that some would see the action as violating last year’s agreement with Federal Trade Commission not to change its handling of people’s data without their explicit permission.  In fact, the Electronic Privacy Information Center filed a complaint with the FTC insisting Google’s new approach violates the deal.<a name="fr4" href="#footnote-4"></a>[4]  Perhaps to blunt such criticism, the company shouted out its new privacy regime to broad publics. For several days Google emblazoned its search page and the landing pages of its other holdings with statements such as “We’re changing our privacy policy” followed by blunt signals of seriousness—for example, “This stuff matters” or “Not the same yada yada.”  But if you clicked the link to learn more, you found essentially the same yada yada.  The urgency evaporated.  The language gave no sense that beginning March 1, to quote the <em>Los Angeles Times</em>, “the only way to turn off the data sharing is to quite Google.” <a name="fr5" href="#footnote-5"></a>[5]  Instead, clickers saw the comforting statement that the change was all good.  The privacy policy would be “a lot shorter and easier to read.” It would reflect “our desire to create one beautifully simple and intuitive experience across Google.”<a name="fr6" href="#footnote-6"></a>[6]</p>
<p>Google certainly isn’t alone in this purposefully confusing, often two-faced approach to the public.  Consider how Amazon makes it seem that its data mining is transparent with respect to its visitors.  On its landing page the firm is straightforward in letting you know that it is connecting what it previously saw of your site behavior with what others who did similar things bought.  But a trudge through the privacy policy will reveal that Amazon’s seemingly open approach to visitors’ data on the home page actually obscures a far broader and impenetrable use of their data for the company’s own and others’ marketing purposes.  Check out Pandora for a similar pattern of transparency and non-transparency in data-handling.  Or visit the Digital Advertising Alliance’s op-out area and note the disconnect between the availability of the opt-out choice and the rhetoric around it that makes its selection seem slightly absurd.</p>
<p align="left">This sort of doublespeak may be endemic to the approach data-driven marketers are taking to the public.  As Wall Street Journal columnist Al Lewis recently noted, “Mark Zuckerberg says Facebook&#8217;s IPO is not about the money. But he then says it&#8217;s about creating a liquid market so his employees and investors can get their money—proving the maxim that it&#8217;s always about the money.”<a name="fr7" href="#footnote-7"></a>[7]  Such corporate “explanations” of their activities add yet another reason for the public’s failure to understand the dynamics of big data in their lives.</p>
<div>
<hr align="left" size="1" width="33%" />
<p><a name="footnote-1" href="#fr1"></a>[1] Chris Jay Hoofnagle, Jennifer Kinng, Su Li, and Joseph Turow, “How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies?”  August 14, 2010.  Report available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589864&amp;download=yes">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589864&amp;download=yes</a> , accessed February 8, 2012.</p>
</div>
<p><a name="footnote-2" href="#fr2"></a>[2] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, <a href="http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1">http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1</a>, accessed February 8, 2012.</p>
<p><a name="footnote-3" href="#fr3"></a>[3] “Google to consolidate privacy data to bolster ad targeting,” <em>New Media Age</em>, January 25, 2012.  Thanks to Jeffrey Chester for pointing out this article to me.</p>
<p><a name="footnote-4" href="#fr4"></a>[4] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, <a href="http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1">http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1</a> , accessed February 8, 2012.</p>
<p><a name="footnote-5" href="#fr5"></a>[5] Jessica Guynn, “Google to Expand Its Tracking of Users,” <em>Los Angeles Times</em>, January 25, 2012, B1.</p>
<p><a name="footnote-6" href="#fr6"></a>[6] “Google Policies &amp; Principles,” <a href="http://www.google.com/policies">http://www.google.com/policies</a> , accessed February 8, 2012.</p>
<p><a name="footnote-7" href="#fr7"></a>[7] Al Lewis, “Facebook, Dead of  Alive,” <em>Wall Street Journal</em>, February 5, 2012, <a href="http://online.wsj.com/article/SB10001424052970203889904577199481841403756.html?mod=WSJ_hp_mostpop_read">http://online.wsj.com/article/SB10001424052970203889904577199481841403756.html?mod=WSJ_hp_mostpop_read</a> , accessed February 8, 2012.</p>
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		<title>The Hidden Dynamics of the Media System</title>
		<link>http://www.concurringopinions.com/archives/2012/02/the-hidden-dynamics-of-the-media-system.html</link>
		<comments>http://www.concurringopinions.com/archives/2012/02/the-hidden-dynamics-of-the-media-system.html#comments</comments>
		<pubDate>Wed, 01 Feb 2012 18:52:15 +0000</pubDate>
		<dc:creator>Joseph Turow</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[advertising]]></category>
		<category><![CDATA[audiences]]></category>
		<category><![CDATA[cable]]></category>
		<category><![CDATA[digital]]></category>
		<category><![CDATA[game consoles]]></category>
		<category><![CDATA[Internet]]></category>
		<category><![CDATA[magazines]]></category>
		<category><![CDATA[marketing]]></category>
		<category><![CDATA[media]]></category>
		<category><![CDATA[newspapers]]></category>
		<category><![CDATA[satellite]]></category>
		<category><![CDATA[targeting]]></category>
		<category><![CDATA[television]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=57030</guid>
		<description><![CDATA[<p>I’m flattered by Concurring Opinions’ request that I contribute to the blog this month. My expertise is not in the Law. It relates to the strategies and dynamics of media industries—particularly the processes at the intersection of marketing, digital media, and society. My aim in these contributions is to show how new, often hidden dynamics in the media system raise crucial issues for people concerned with the growth of an optimal media system for society.</p>
<p>What would such a system look like? I suggest that a good society should have a balance between what might be called society-making and segment-making media. Segment-making media are those that encourage small slices of society to talk to themselves, while society-making media are those that have the potential to get [...]]]></description>
			<content:encoded><![CDATA[<p>I’m flattered by Concurring Opinions’ request that I contribute to the blog this month. My expertise is not in the Law. It relates to the strategies and dynamics of media industries—particularly the processes at the intersection of marketing, digital media, and society. My aim in these contributions is to show how new, often hidden dynamics in the media system raise crucial issues for people concerned with the growth of an optimal media system for society.</p>
<p>What would such a system look like? I suggest that a good society should have a balance between what might be called society-making and segment-making media. Segment-making media are those that encourage small slices of society to talk to themselves, while society-making media are those that have the potential to get all those segments to talk to each other. So, for example, <em>Latino Perspectives</em>, a magazine for Latinos living in Phoenix and Tucson, may be considered segment-making; the same with the Univision television network. By contrast, <em>People</em> magazine and CBS television, with their interest in broad national audiences, can be called society-making.</p>
<p>A hallmark of the twentieth century was the growth of both types in the United States. A huge number of ad-supported vehicles—mostly newspapers and magazines—served as a way to reinforce, even create identities for an impressive array of segments that advertisers cared about, from groups of immigrants just establishing a presence in the country to the Jay Gatsby-esque luxury market, and more. At the same time, some ad-sponsored newspapers, radio networks and—especially—television networks were able to reach across these groups. For those who hope for a caring society, each level of media had, and continues to have, its problems. Segment-making media have sometimes offered their audiences narrow, prejudiced views of other social segments. Similarly, society-making media have marginalized certain groups, perpetuated stereotypes of many others, and generally presented an ideal vision of the world that reflects the corporate establishment sponsoring them at the expense of the competing visions that define actual publics. Nevertheless, the existence of both forms of media offers the potential for a healthy balance. In the ideal scenario segment-making media strengthen the identities of interest groups while society-making media allow those groups to move out of their parochial scenes to talk with, argue against, and entertain one another. The result is a rich and diverse sense of overarching connectedness: this is what a vibrant society is all about.</p>
<p>What are the core drivers that push the media toward or away from this development? I argue that in the U.S. and many other societies, the answer can be found in relationships between media and advertisers. To understand the key contemporary dynamics, I’ve focused a good deal of my recent research on the critical transformation taking place in the advertising system’s media-buying-and-planning business. The idea behind media buying and planning is basic: An agency helps its clients (the advertisers) decide where to place paid messages about their products. Thirty years ago the U.S. media plan for most national advertisers was a rather straightforward one negotiated by a few people and carried out by rather inexperienced clerks. The realistic possibilities involved the big three broadcast television networks, local radio stations, magazines, newspapers, and outdoor.</p>
<p>But with the rise of cable, satellite, game consoles, DVDs, and a panoply of internet-connected digital devices, media buying and planning has become a byzantine activity. The complexity of deciding how to think about and reach desired audiences has led agencies to a shift in personnel. Statisticians and computer engineers increasingly sit at the center of the process. They formulate complex computer programs, crunch numbers, and even create new advertising buying-and-selling technologies with the aim of identifying and reaching the best prospects in the best places.</p>
<p>The money used to purchase advertising is huge. Media buyers funnel hundreds of billions of dollars (allegedly close to $500 billion) to media firms in exchange for space and time worldwide.1 A substantial portion (one industry consultancy says 88%2) of the spending runs through a small number of organizations owned by a handful of agency conglomerates most people have never heard of: WPP, Omnicom, Publicis, Interpublic, Aegis, and Havas. And that money covers only the formal advertising. Activities such as product placement and “earned media” (an increasingly wide range of public-relations work that may well include coordinating Twitter feeds and Facebook fan pages) raises the total substantially.</p>
<p>Given the amount of cash involved and the fact that advertising provides such a high level of support for so many media industries, the decisions buyers and planners make influence whether media outlets live and how they live—for example, what audiences they should target and how much they can afford to invest in content. The past decade or so has seen the advertising business take a fundamental turn. The emerging media-planning-and-buying system is predicated on neither society-making nor segment-making advertising media channels. Rather, marketing executives along with their engineers and statisticians are building it increasingly around a belief in the primacy of the chosen consumer. The belief motivates them to sort audiences into targets and waste, focus on the individuals they deem valuable, track those people across as many platforms as possible, and serve them personalized ads and other content anywhere they show up.</p>
<p>They are creating a new marketing-and-media world, and the ramifications may well be profound for the individual, for media practitioners and their products, and for society at large. My hope with this month’s posts is that I can elucidate a few of these issues, tie them to current developments, and encourage policy discussions around them. I look forward to your comments.</p>
<p>References<br />
1 See “Worldwide Ad Market Approaches $500 Billion,” eMarketer, June 13, 2011.<br />
2 RECMA, “Global Overall Activity Billings 2010,” http://www.recma.com/files/RECMA_11103_1310117878200_FREE_EXTRACT_-_7_PAGES_-_July_08_A_.pdf , accessed February 1, 2012.</p>
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		<title>The E.U. Data Protection Directive and Robot Chicken</title>
		<link>http://www.concurringopinions.com/archives/2012/01/the-e-u-data-protection-directive-and-robot-chicken.html</link>
		<comments>http://www.concurringopinions.com/archives/2012/01/the-e-u-data-protection-directive-and-robot-chicken.html#comments</comments>
		<pubDate>Wed, 25 Jan 2012 21:32:04 +0000</pubDate>
		<dc:creator>Derek Bambauer</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Architecture]]></category>
		<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[Consumer Protection Law]]></category>
		<category><![CDATA[Current Events]]></category>
		<category><![CDATA[Cyber Civil Rights]]></category>
		<category><![CDATA[Cyberlaw]]></category>
		<category><![CDATA[Google and Search Engines]]></category>
		<category><![CDATA[Innovation]]></category>
		<category><![CDATA[Politics]]></category>
		<category><![CDATA[Privacy]]></category>
		<category><![CDATA[Privacy (Consumer Privacy)]]></category>
		<category><![CDATA[Social Network Websites]]></category>
		<category><![CDATA[Technology]]></category>
		<category><![CDATA[Web 2.0]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=56645</guid>
		<description><![CDATA[<p>The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece&#8230;</p>
]]></description>
			<content:encoded><![CDATA[<p>The European Commission released a <a href="http://ec.europa.eu/news/business/120125_en.htm" target="_blank">draft of its revised Data Protection Directive</a> this morning, and <a href="http://www.brooklaw.edu/faculty/directory/facultymember/biography.aspx?id=jane.yakowitz" target="_blank">Jane Yakowitz</a> has a <a href="http://www.forbes.com/sites/kashmirhill/2012/01/25/more-bad-ideas-from-the-e-u/" target="_blank">trenchant critique up at Forbes.com</a>. In addition to the sharp legal analysis, her article has both a <a href="http://www.imdb.com/character/ch0000005/quotes" target="_blank">Star Wars</a> and <a href="http://www.adultswim.com/shows/robotchicken/extras/starwars/" target="_blank">Robot Chicken</a> reference, which makes it basically the perfect information law piece&#8230;</p>
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		<title>Censorship on the March</title>
		<link>http://www.concurringopinions.com/archives/2012/01/censorship-on-the-march.html</link>
		<comments>http://www.concurringopinions.com/archives/2012/01/censorship-on-the-march.html#comments</comments>
		<pubDate>Wed, 18 Jan 2012 22:31:20 +0000</pubDate>
		<dc:creator>Derek Bambauer</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Architecture]]></category>
		<category><![CDATA[Civil Procedure]]></category>
		<category><![CDATA[Constitutional Law]]></category>
		<category><![CDATA[Culture]]></category>
		<category><![CDATA[Current Events]]></category>
		<category><![CDATA[Cyberlaw]]></category>
		<category><![CDATA[First Amendment]]></category>
		<category><![CDATA[Google & Search Engines]]></category>
		<category><![CDATA[Google and Search Engines]]></category>
		<category><![CDATA[Innovation]]></category>
		<category><![CDATA[Intellectual Property]]></category>
		<category><![CDATA[Media Law]]></category>
		<category><![CDATA[Movies & Television]]></category>
		<category><![CDATA[Politics]]></category>
		<category><![CDATA[Technology]]></category>
		<category><![CDATA[Web 2.0]]></category>
		<category><![CDATA[Wiki]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=56282</guid>
		<description><![CDATA[<p>Today, you can&#8217;t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America&#8217;s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for [...]]]></description>
			<content:encoded><![CDATA[<p>Today, you can&#8217;t get to <a href="http://theoatmeal.com/" target="_blank">The Oatmeal</a>, or <a href="http://www.qwantz.com/index.php" target="_blank">Dinosaur Comics</a>, or <a href="http://xkcd.com/" target="_blank">XKCD</a>, or (less importantly) <a href="http://en.wikipedia.org/wiki/Main_Page" target="_blank">Wikipedia</a>. The sites have gone dark to protest the <a href="http://judiciary.house.gov/issues/issues_RogueWebsites.html" target="_blank">Stop Online Piracy Act</a> (SOPA) and the <a href="http://leahy.senate.gov/imo/media/doc/BillText-PROTECTIPAct.pdf" target="_blank">PROTECT IP Act</a>, America&#8217;s attempt to <a href="http://www.salon.com/2012/01/18/chris_dodds_paid_sopa_crusading/singleton/" target="_blank">censor the Internet to reduce copyright infringement</a>. This is part of a remarkable, distributed, coordinated <a href="http://www.forbes.com/sites/kashmirhill/2012/01/18/the-web-goes-on-a-sopa-strike-with-the-oatmeal-doing-it-best/" target="_blank">protest effort</a>, both online and in realspace (I saw my colleague and friend <a href="http://www.brooklaw.edu/faculty/directory/facultymember/biography.aspx?id=jonathan.askin" target="_blank">Jonathan Askin</a> headed to <a href="http://guestofaguest.com/new-york/technology/ny-tech-community-to-rally-against-proposed-internet-censorship-legislation/" target="_blank">protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand</a>). Many of the protesters argue that America is headed in the direction of authoritarian states such as <a href="http://opennet.net/countries/china" target="_blank">China</a>, <a href="http://opennet.net/countries/iran" target="_blank">Iran</a>, and <a href="http://opennet.net/countries/bahrain" target="_blank">Bahrain</a> in censoring the Net. The problem, though, is that America is not alone: <strong>most</strong> Western democracies are censoring the Internet. <a href="http://www.cl.cam.ac.uk/~rnc1/cleanfeed.pdf" target="_blank">Britain does it for child pornography</a>. <a href="http://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Speech" target="_blank">France: hate speech</a>. <a href="http://www.itnews.com.au/News/285670,users-to-flag-terrorist-web-pages-under-eu-proposal.aspx" target="_blank">The EU is debating a proposal to allow &#8220;flagging&#8221; of objectionable content for ISPs to ban</a>. <a href="http://www.washingtonpost.com/blogs/blogpost/post/internet-censorship-what-does-it-look-like-around-the-world/2012/01/18/gIQAdvMq8P_blog.html" target="_blank">Australia&#8217;s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing</a>. <a href="http://india.blogs.nytimes.com/2011/12/05/india-asks-google-facebook-others-to-screen-user-content/" target="_blank">India wants Facebook, Google, and other online platforms to remove any content the government finds problematic</a>.</p>
<p><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1143582" target="_blank">Censorship is on the march</a>, in <a href="http://legalworkshop.org/2010/05/03/duke-post-2" target="_blank">democracies as well as dictatorships</a>. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different &#8211; as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, <a href="http://www.wired.com/threatlevel/2011/12/wyden-domain-seizure/" target="_blank">we are seizing domain names</a>, <a href="http://www.chesterfield.gov/connectedgovernment.aspx?id=2083" target="_blank">filtering municipal wi-fi</a>, and <a href="http://www.educause.edu/blog/SLWorona/UpdateonHEOAandP2P/174432" target="_blank">using funding to leverage colleges and universities to filter P2P</a>. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions &#8211; the fight on-line and in Congress and in the <a href="http://www.forbes.com/sites/danielfisher/2012/01/18/sopa-meet-the-player-piano-copyright-threat/" target="_blank">media</a> shows how we differ from China &#8211; but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking <a href="http://arstechnica.com/tech-policy/news/2011/12/spanish-site-taking-our-domain-was-unconstitutional-prior-restraint.ars" target="_blank">Rojadirecta</a> or <a href="http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml" target="_blank">Dajaz1</a>.</p>
<p>Cross-posted at <a href="http://blogs.law.harvard.edu/infolaw/2012/01/18/censorship-on-the-march/" target="_blank">Info/Law</a>.</p>
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		<title>The PII Problem: Privacy and a New Concept of Personally Identifiable Information</title>
		<link>http://www.concurringopinions.com/archives/2011/12/the-pii-problem-privacy-and-a-new-concept-of-personally-identifiable-information.html</link>
		<comments>http://www.concurringopinions.com/archives/2011/12/the-pii-problem-privacy-and-a-new-concept-of-personally-identifiable-information.html#comments</comments>
		<pubDate>Tue, 06 Dec 2011 14:20:34 +0000</pubDate>
		<dc:creator>Daniel Solove</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Articles and Books]]></category>
		<category><![CDATA[Privacy]]></category>
		<category><![CDATA[Privacy (Consumer Privacy)]]></category>
		<category><![CDATA[Privacy (Medical)]]></category>
		<category><![CDATA[Technology]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=53870</guid>
		<description><![CDATA[<p>My article, The PII Problem: Privacy and a New Concept of Personally Identifiable Information (with Professor Paul Schwartz), is now out in print.   You can download the final published version from SSRN.  Here&#8217;s the abstract:</p>
<p>Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not [...]]]></description>
			<content:encoded><![CDATA[<p>My article, <a href="http://ssrn.com/abstract=1909366"><em>The PII Problem: Privacy and a New Concept of Personally Identifiable Information</em></a> (with Professor Paul Schwartz), is now out in print.   You can download the final published version from <a href="http://ssrn.com/abstract=1909366">SSRN</a>.  Here&#8217;s the abstract:</p>
<blockquote><p>Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the mechanism by which to define the boundaries of privacy law.</p>
<p>In this Article, we argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. We develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate this theory, we use the example of regulating behavioral marketing to adults and children. We show how existing approaches to PII impede the effective regulation of behavioral marketing, and how PII 2.0 would resolve these problems.</p></blockquote>
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		<title>CELS VI: Half a CELS is Statistically Better Than No CELS</title>
		<link>http://www.concurringopinions.com/archives/2011/11/cels-vi-half-a-cels-is-statistically-better-than-no-cels.html</link>
		<comments>http://www.concurringopinions.com/archives/2011/11/cels-vi-half-a-cels-is-statistically-better-than-no-cels.html#comments</comments>
		<pubDate>Tue, 15 Nov 2011 20:26:40 +0000</pubDate>
		<dc:creator>Dave Hoffman</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Behavioral Law and Economics]]></category>
		<category><![CDATA[Conferences]]></category>
		<category><![CDATA[Empirical Analysis of Law]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=52683</guid>
		<description><![CDATA[<p class="wp-caption-text">Northwestern&#39;s Stained Glass Windows  Made Me Wonder Whether Some Kind of Regression Was Being Proposed</p>
<p>As promised, I&#8217;m filing a report from the Sixth Annual Empirical Studies Conference, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from CELS V, IV, and III. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the natural law figure in effigy.  Next year&#8217;s conference is at Stanford.  I&#8217;ll make a similar offer to the one I&#8217;ve made in the past: if the organizing committee pays my way, I promise not only to blog [...]]]></description>
			<content:encoded><![CDATA[<div id="attachment_52806" class="wp-caption alignright" style="width: 310px"><a href="http://www.concurringopinions.com/wp-content/uploads/2011/11/northwesetrn.jpg"><img class="size-medium wp-image-52806" title="northwesetrn" src="http://www.concurringopinions.com/wp-content/uploads/2011/11/northwesetrn-300x199.jpg" alt="" width="300" height="199" /></a><p class="wp-caption-text">Northwestern&#39;s Stained Glass Windows  Made Me Wonder Whether Some Kind of Regression Was Being Proposed</p></div>
<p>As <a href="http://www.concurringopinions.com/archives/2011/11/cels-vi.html">promised</a>, I&#8217;m filing a report from the <a href="http://www.law.northwestern.edu/faculty/conferences/cels-2011/">Sixth Annual Empirical Studies Conferenc</a>e, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from <a href="http://www.concurringopinions.com/archives/2010/11/cels-v-the-year-of-the-experiment.html">CELS V</a>, <a href="http://www.concurringopinions.com/archives/2009/11/high-on-cels.html">IV</a>, and <a href="http://www.concurringopinions.com/archives/2008/09/when_academics_1.html">III</a>. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the <a href="http://www.burningman.com/">natural law figure</a> in effigy.  Next year&#8217;s conference is at <a href="http://www.law.stanford.edu/calendar/details/6245/Conference%20on%20Empirical%20Legal%20Studies%202012/">Stanford</a>.  I&#8217;ll make a similar offer to the one I&#8217;ve made in the past: if the organizing committee pays my way, I promise not only to blog the whole thing, but to praise you unstintingly.  Here&#8217;s an example: I didn&#8217;t observe a single technical or organization snafu at Northwestern this year.  Kudos to the organizing committee: Bernie Black, Shari Diamond, and Emerson Tiller.</p>
<p><strong>What I saw</strong></p>
<p>I arrived Friday night in time for the poster session.  A few impressions.  Yun-chien Chang&#8217;s <em>Tenancy in &#8216;Anticommons&#8217;? A Theoretical and Empirical Analysis of Co-Ownership</em> won &#8220;best poster,&#8221; but I was drawn to David Lovis-McMahon &amp; N.J. Schweitzer&#8217;s <em>Substantive Justice: How the Substantive Law Shapes Perceived Fairnes</em>s.  Overall, the trend toward professionalization in poster display continues unabated.  Even Ted Eisenberg&#8217;s poster was glossy &amp; evidenced some post-production work &#8212; Ted&#8217;s posters at past sessions were, famously, not as civilized. Gone are the days where you could throw some powerpoint slides onto a board and talk about them over a glass of wine!  That said, I&#8217;m skeptical about poster sessions generally.  I would love to hear differently from folks who were there.</p>
<p>On Saturday, bright eyed and caffeinated, I went to a Juries panel, where I got to see three pretty cool papers.  The first, by Mercer/Kadous, was about how juries are likely to react to precise/imprecise legal standards.  (For a previous version, see <a href="http://www.business.utah.edu/sites/default/files/documents/school-of-accounting/KadousPaper.pdf">here</a>.) Though the work was nominally about auditing standards, it seemed generalizable to other kinds of legal rules.  The basic conclusion was that imprecise standards increase the likelihood of plaintiff verdicts, but only when the underlying conduct is conservative but deviates from industry norms.  By contrast, if the underlying conduct is aggressive, jurors return fewer pro-plaintiff verdicts.  Unlike most such projects, the authors permitted a large number of mock juries to deliberate, which added a degree of external validity.  Similarly worth reading was Lee/Waters&#8217; work on jury verdict reporters (bottom line: reporters aren&#8217;t systematically pro-plaintiff, as the CW suggests, but they are awfully noise measures of what juries are actually doing).  Finally, Hans/Reyna presented some very interesting work on the &#8220;gist&#8221; model of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1876667">jury decisionmaking</a>.</p>
<p>At 11:00, I had to skip a great paper by Daniel Klerman whose title was worth the price of admission alone &#8211; the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1884002">Selection of Thirteenth-Century Disputes for Litigation</a>.  Instead, I went to Law and Psychology III.  There, Kenworthey Bilz presented<em> Crime, Tort, Anger, and Insult</em>, a paper which studies how attribution &amp; perceptions of dignitary loss mark a psychological boundary between crime and tort cases.  Bilz presented several neat experiments in service of her thesis, among them a priming survey- &#8211; people primed to think about crimes complete the word &#8220;ins-&#8221; as &#8220;insult,&#8221; while people primed to think about torts complete it as &#8220;insurance.&#8221;  (I think I&#8217;ve got that right &#8211; - the paper isn&#8217;t available online, and I&#8217;m drawing on two week old memories.)</p>
<p>At noon, Andrew Gelman gave a fantastic presentation on the visualization of empirical data.  The bottom line: <a href="http://www.wordle.net/create">wordles </a>are silly and convey no important information.  Actually, Andrew didn&#8217;t say that.  I just thought that coming in.  What Andrew said was something more like &#8220;can&#8217;t people who produce visually interesting graphs and people who produce graphs that convey information get along?&#8221;</p>
<p>Finally, I was the discussant at an Experimental Panel, responding to Brooks/Stremitzer/Tontrup&#8217;s <em><a href="http://www.law.northwestern.edu/colloquium/law_economics/documents/Fall2011_Stremitzer.pdf">Framing Contracts:Why Loss Framing Increases Effort</a></em>.  Attendees witnessed my ill-fated attempt to reverse the order of my presentation on the fly, leading me to neglect the bread in the praise sandwich.  This was a good teaching moment about academic norms. My substantive reaction to <em>Framing Contracts</em> is that it was hard to know how much the paper connected to real-world contracting behavior, since the kinds of decision tasks that the experimental subjects were asked to perform were stripped of the relational &amp; reciprocal norms that characterize actual deals.</p>
<p><strong>CELS: What I missed</strong></p>
<p>The entire first day!  One of my papers with the cultural cognition project, <em><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1755706">They Saw a Protest</a></em>, apparently came off well.  Of course, there was also tons of great stuff <em>not</em> written from within the expanding cultural cognition empire.  Here&#8217;s a selection: on <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1640062">lawyer optimism</a>; on <a href="http://academiccommons.columbia.edu/catalog/ac:129661">public housing, enforcement and race</a>; on<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1877125"> probable cause and hindsight judging</a>; and several papers on Iqbal, none of which appear to be online.</p>
<p>What did you see &amp; like?</p>
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		<title>Scoring Ourselves to Economic Death</title>
		<link>http://www.concurringopinions.com/archives/2011/06/scoring-ourselves-to-economic-death.html</link>
		<comments>http://www.concurringopinions.com/archives/2011/06/scoring-ourselves-to-economic-death.html#comments</comments>
		<pubDate>Tue, 28 Jun 2011 22:24:43 +0000</pubDate>
		<dc:creator>Danielle Citron</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Architecture]]></category>
		<category><![CDATA[Culture]]></category>
		<category><![CDATA[Cyber Civil Rights]]></category>
		<category><![CDATA[Cyberlaw]]></category>
		<category><![CDATA[Google & Search Engines]]></category>
		<category><![CDATA[Privacy]]></category>
		<category><![CDATA[Privacy (Consumer Privacy)]]></category>
		<category><![CDATA[Web 2.0]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=47402</guid>
		<description><![CDATA[<p>In The New York Times, Stephanie Rosenbloom asks readers to &#8220;imagine a world in which we are assigned a number that indicates how influential we are.&#8221;  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You&#8217;re doing [...]]]></description>
			<content:encoded><![CDATA[<p><img class="alignright size-full wp-image-47410" title="1283203_50" src="http://www.concurringopinions.com/wp-content/uploads/2011/06/1283203_50.jpg" alt="" width="100" height="67" />In<a href="http://www.nytimes.com/2011/06/26/sunday-review/26rosenbloom.html"> The New York Times</a>, Stephanie Rosenbloom <a href="http://www.nytimes.com/2011/06/26/sunday-review/26rosenbloom.html">asks</a> readers to &#8220;imagine a world in which we are assigned a number that indicates how influential we are.&#8221;  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You&#8217;re doing a good thing for your friends and the salon (let&#8217;s hope), and now you&#8217;re doing good for you.  Because you have inspired people to take action, your influence score may rise.  In the present, people with high scores get preferential treatment by retailers.  More than 2,500 marketers are now using Klout&#8217;s data.  Audi will begin offering Facebook users promotions based on their Klout score.  The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show.  In the future, those scores could be used by prospective employers, friends, and dates.</p>
<p>On the one hand, this market trend has something important to commend &#8212; its visibility.  Consumers can find out their influence scores and work to raise them.  By contrast, the impact of behavioral advertising is often hidden.  We are tracked and scored in databases and have no idea how it shakes out.  Joe Turow&#8217;s excellent book <a href="http://www.amazon.com/Niche-Envy-Marketing-Discrimination-Digital/dp/0262201658">Niche Envy</a> explains that consumers know very little about how their data personalizes market transactions.  Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it.  As Turow explains, &#8220;our simple corner store is turning into a Marrakech bazaar&#8211;except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.&#8221;  On the other hand, the information isn&#8217;t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don&#8217;t.  But that isn&#8217;t really troubling, unless every job or blog post had the effect we hoped it might.  What&#8217;s troubling is the trend&#8217;s implications for society and culture.  It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture.  Now, they may feel pressured to do all of these things as a matter of economic necessity.  We may forgo experimentation for product endorsements, and idle chatter for better job prospects.  This makes our children&#8217;s choice to engage with social media seem like less of choice than a carefully cultivated necessity.  It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions.  They go offline or write under pseudonyms to protect themselves.  We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses.  I imagine there&#8217;s more to this influence score story but I thought I&#8217;d share my initial take.</p>
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		<title>A Gummy Lawsuit</title>
		<link>http://www.concurringopinions.com/archives/2010/07/a-gummy-lawsuit.html</link>
		<comments>http://www.concurringopinions.com/archives/2010/07/a-gummy-lawsuit.html#comments</comments>
		<pubDate>Wed, 28 Jul 2010 13:46:56 +0000</pubDate>
		<dc:creator>Dave Hoffman</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Consumer Protection Law]]></category>
		<category><![CDATA[Contract Law & Beyond]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=31893</guid>
		<description><![CDATA[<p>A man has bad teeth.  He chews Trident Xtra Care gum, which promises that it &#8220;Strengthens and Rebuilds Teeth&#8221; by &#8220;fill[ing] in the tiny crevices where cavities can form and leav[ing] teeth more resistant to plaque acids.&#8221;  His teeth remain rotten.  It&#8217;s America.  So he sues for deceptive business practices, and seeks to represent a class of gum purchasers.   You name the defenses.</p>
]]></description>
			<content:encoded><![CDATA[<p>A man has bad teeth.  He chews Trident Xtra Care gum, which promises that it &#8220;Strengthens and Rebuilds Teeth&#8221; by &#8220;fill[ing] in the tiny crevices where cavities can form and leav[ing] teeth more resistant to plaque acids.&#8221;  His teeth remain rotten.  It&#8217;s America.  So he <a href="http://www.nydailynews.com/ny_local/2010/07/22/2010-07-22_he_says_gum_ads_are_rotten_drills_company_with_lawsuit.html">sues</a> for deceptive business practices, and seeks to represent a class of gum purchasers.   You name the defenses.</p>
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		<title>More on Pizza and Puffery</title>
		<link>http://www.concurringopinions.com/archives/2010/02/more-on-pizza-and-puffery.html</link>
		<comments>http://www.concurringopinions.com/archives/2010/02/more-on-pizza-and-puffery.html#comments</comments>
		<pubDate>Thu, 18 Feb 2010 14:31:28 +0000</pubDate>
		<dc:creator>Lisa Fairfax</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Contract Law & Beyond]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=25239</guid>
		<description><![CDATA[<p>Like Nate, the Domino&#8217;s puffery commercial caught my eye.  In addition to his concerns, the commercial prompted me to think about at least two other issues related to the commercial&#8217;s effectiveness.</p>
<p>First, given that Domino&#8217;s only has a couple of seconds to get across its message, do most viewers really appreciate the reference to puffery?  To be sure, Domino&#8217;s loves it so much that they have dedicated a whole site to the &#8220;Stop the Puffery&#8221; idea and &#8220;calling out Papa John&#8217;s&#8221;.  Moreover, it seems to be garnering a lot of buzz on legal blogs, such as these thoughts on ContractsProf Blog and Above the  Law.  But as those posts reveal, the initial puffery reference stems from an old case between Papa John&#8217;s and Pizza Hut where Papa John&#8217;s essentially [...]]]></description>
			<content:encoded><![CDATA[<p>Like <a href="http://www.concurringopinions.com/archives/2010/02/puffery-and-pizza.html">Nate</a>, the Domino&#8217;s puffery commercial caught my eye.  In addition to his concerns, the commercial prompted me to think about at least two other issues related to the commercial&#8217;s effectiveness.</p>
<p>First, given that Domino&#8217;s only has a couple of seconds to get across its message, do most viewers really appreciate the reference to puffery?  To be sure, Domino&#8217;s loves it so much that they have dedicated a whole <a href="http://www.facebook.com/Dominos?v=app_10442206389">site</a> to the &#8220;Stop the Puffery&#8221; idea and &#8220;calling out Papa John&#8217;s&#8221;.  Moreover, it seems to be garnering a lot of buzz on legal blogs, such as these thoughts on <a href="http://lawprofessors.typepad.com/contractsprof_blog/2010/02/followup-on-pizza-hut-inc-v-papa-johns-international-inc-.html">ContractsProf Blog</a> and <a href="http://abovethelaw.com/2010/02/taste_the_truthery_dominos_papa_johns_pizza.php">Above the  Law</a>.  But as those posts reveal, the initial puffery reference stems from an old <a href="http://ftp.resource.org/courts.gov/c/F3/227/227.F3d.489.00-10071.html">case</a> between Papa John&#8217;s and Pizza Hut where Papa John&#8217;s essentially admits that its &#8220;Better Ingredients. Better Pizza&#8221; slogan is puffery in order to avoid Pizza Hut&#8217;s claim that ads using the slogan were false and misleading.   Interestingly, the Fifth Circuit case notes that &#8220;Pizza Hut does not appear to contest the truthfulness&#8221; of Papa John&#8217;s factual assertions that Pizza Hut used frozen dough, made its dough using &#8220;whatever comes out of the tap,&#8221; and made its sauce from remanufactured tomato paste.  Instead, Pizza Hut suggest that the ingredients make no difference in terms of taste.   In any event, the Fifth Circuit concludes that Papa John&#8217;s slogan is non-actionable puffery and thus did not really impact people&#8217;s buying decision.  From Domino&#8217;s perspective, calling Papa John&#8217;s slogan puffery is supposed to get across the idea that the slogan is &#8220;NOT FACT&#8221;&#8211;or in Papa&#8217;s John&#8217;s <a href="http://ftp.resource.org/courts.gov/c/F3/227/227.F3d.489.00-10071.html">words</a>, involves claims about &#8220;common sense choice.&#8221;  But it is not clear how much, if any, of that gets across in the ad. </p>
<p>Second, wasn&#8217;t it just last month that Domino&#8217;s <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/12/AR2010011201696.html">launched</a> an ad strategy based on a mea culpa where company executives not only quoting comments likening Domino&#8217;s crust to cardboard and the sauce to ketchup, but also comments like &#8220;worst excuse for pizza I ever had,&#8221; and &#8220;totally devoid of flavor&#8221;?  The apology strategy seemed both bold and risky.  Though one could argue that it is only a few steps removed from ads that offer &#8220;new and improved&#8221; products, except those ads don&#8217;t explicitly admit that the old product was relatively worse.  Nevertheless, Domino&#8217;s apologetic strategy seems at odds with the attack strategy in these puffery commercials.   Indeed, the apology appears to be aimed at fostering good will and a positive outlook.  Moreover, the apology seems to be at the very least an implicit acknowledgement that Domino&#8217;s pizzas (and ingredients) were worse than their competitors.  So the puffery attack seems a bit hard to swallow. </p>
<p>But in the interest of being honest, I will admit that I have not yet tasted the new and improved Domino&#8217;s pizza, and hence can&#8217;t really say anything about the pizza. . .just the pizza ad.</p>
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		<title>Puffery and Pizza</title>
		<link>http://www.concurringopinions.com/archives/2010/02/puffery-and-pizza.html</link>
		<comments>http://www.concurringopinions.com/archives/2010/02/puffery-and-pizza.html#comments</comments>
		<pubDate>Thu, 11 Feb 2010 15:25:17 +0000</pubDate>
		<dc:creator>Nate Oman</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Contract Law & Beyond]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=25085</guid>
		<description><![CDATA[<p>In this commercial, Domino&#8217;s Pizza offers us a definition of &#8220;puffery.&#8221;  So does the claim, &#8220;Our pizzas taste better, and that&#8217;s not puffery.  That&#8217;s proven.&#8221; constitute a warranty?</p>
<p>(And don&#8217;t forget to read &#8220;The Best Puffery Article Ever&#8221;)</p>
]]></description>
			<content:encoded><![CDATA[<p>In <a href="http://www.youtube.com/watch?v=Yn5n4NFpxe8">this commercial</a>, Domino&#8217;s Pizza offers us a definition of &#8220;puffery.&#8221;  So does the claim, &#8220;Our pizzas taste better, and that&#8217;s not puffery.  That&#8217;s proven.&#8221; constitute a warranty?</p>
<p>(And don&#8217;t forget to read <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=887720">&#8220;The Best Puffery Article Ever&#8221;</a>)</p>
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		<title>Marketing and Kids</title>
		<link>http://www.concurringopinions.com/archives/2009/12/marketing-and-kids.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/12/marketing-and-kids.html#comments</comments>
		<pubDate>Wed, 23 Dec 2009 19:20:27 +0000</pubDate>
		<dc:creator>Deven Desai</dc:creator>
				<category><![CDATA[Advertising]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=23382</guid>
		<description><![CDATA[<p>Although I tend to prefer less regulation in many cases, the pictures below seem to call for a little more discussion about how products are marketed to kids. Candy in that mimics many of the attributes of adult products such as cigarettes probably makes it easier for a kid to think they ought to try the real thing and maybe soon. As I have noted before, the warning labels on cigarettes in other countries are quite a bit more stark (some simply state in large font &#8220;Smoking kills&#8221;. </p>
<p>As a trademark point, one might wonder whether an infringement action or maybe a dilution one would work. One might think cigarette makers have entered the cigarette entry market (Anyone remember Joe Camel?). Dilution by blurring may [...]]]></description>
			<content:encoded><![CDATA[<p>Although I tend to prefer less regulation in many cases, the pictures below seem to call for a little more discussion about how products are marketed to kids. Candy in that mimics many of the attributes of adult products such as cigarettes probably makes it easier for a kid to think they ought to try the real thing and maybe soon. As I have noted before, <a href="http://www.concurringopinions.com/archives/2008/08/cultural_differ.html">the warning labels on cigarettes in other countries</a> are quite a bit more stark (some simply state in large font &#8220;Smoking kills&#8221;. </p>
<p>As a trademark point, one might wonder whether an infringement action or maybe a dilution one would work. One might think cigarette makers have entered the cigarette entry market (Anyone remember Joe Camel?). Dilution by blurring may apply too, but a tarnishment claim may be more difficult as I think candy (absent those pesky four out of five dentists) is still seen as a step up from tobacco. All kidding aside, even if one argues that adults can make informed decisions, it seems to me that packaging candy to look quite similar to major cigarette brand packaging is an error. You make the call about these images and what, if anything, should be done.</p>
<p>The ones with cellophane wrapping look even more like a training kit to me.</p>
<p><img src="http://www.concurringopinions.com/wp-content/uploads/2009/12/Candy-Cigarettes-21-300x237.jpg" alt="Candy Cigarettes 2" title="Candy Cigarettes 2" width="300" height="237" class="alignleft size-medium wp-image-23380" /></p>
<p><img src="http://www.concurringopinions.com/wp-content/uploads/2009/12/Candy-Cigarettes-3-264x300.jpg" alt="Candy Cigarettes 3" title="Candy Cigarettes 3" width="264" height="300" class="alignright size-medium wp-image-23381" /></p>
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		<title>Are T.V. Programs Killer Apps?</title>
		<link>http://www.concurringopinions.com/archives/2009/12/are-t-v-programs-killer-apps.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/12/are-t-v-programs-killer-apps.html#comments</comments>
		<pubDate>Mon, 07 Dec 2009 21:36:46 +0000</pubDate>
		<dc:creator>Deven Desai</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Culture]]></category>
		<category><![CDATA[Google & Search Engines]]></category>
		<category><![CDATA[Intellectual Property]]></category>
		<category><![CDATA[Trade]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=22907</guid>
		<description><![CDATA[<p>Networks. In my youth, the term was most familiar to me as the word for large, national television stations. NBC was at the bottom of a small heap in the late 1970s. If I recall correctly, Johnny Carson and the Tonight Show supported most of the network in general. Now remember, there were only three networks and some local stations, yet NBC was unable to do well. Then NBC tried a show that I believe many thought would not work or have little success, The Cosby Show. Who knew? That show took off and NBC parlayed The Cosby Show into 20 years of dominance. Family Ties was OK but nothing brilliant. Nonetheless, with Cosby as the anchor, NBC tested and launched series such as Cheers, [...]]]></description>
			<content:encoded><![CDATA[<p>Networks. In my youth, the term was most familiar to me as the word for large, national television stations. NBC was at the bottom of a small heap in the late 1970s. If I recall correctly, Johnny Carson and the Tonight Show supported most of the network in general. Now remember, there were only three networks and some local stations, yet NBC was unable to do well. Then NBC tried a show that I believe many thought would not work or have little success, The Cosby Show. Who knew? That show took off and NBC parlayed The Cosby Show into 20 years of dominance. Family Ties was OK but nothing brilliant. Nonetheless, with Cosby as the anchor, NBC tested and launched series such as Cheers, Friends, and ER with Wings and other decent fillers in between. In a sense NBC seemed to have cross-subsidized its programming on Thursday and even other nights (by launching and then moving series). In addition, that lead allowed NBC to promote all its other programming. Then came CBS which was in the doldrums and it tried a little thing called Survivor. Boom! CBS took off. Many OK, and some not so good shows have done well on CBS. FOX arguably uses American Idol to achieve similar results. NBC struggles so much that some rather good shows are lost and like the proverbial tree they fall but no one hears them. </p>
<p>The analogy is far from perfect (for one I am not certain that T.V. shows require large numbers to be useful then again they seem to do well in part because one likes to be able to talk about shows around the so-called water cooler), but I wonder if Yahoo!, AOL, Google, MSN, Facebook, and Twitter are in some ways similar to the T.V. networks. One killer app and the site grabs a ton of people who stick and may use other products from the network. Users can click away and can use the services in a simultaneous way in that one can work with one service at time or have multiple services running but not miss programming as was the case before the VCR. There are many open questions in this arena. For one, how easily can one switch from one service to another? In addition, are there similar problems regarding limited access (i.e., T.V. and cable can carry only so many channels but the Internet has greater capacity (though depending on the status of the network not as unlimited as some might argue)? A key issue in my mind is the problem of knowing that a good service or program exists. The Internet appears better than T.V. at letting users quickly decide what they like, and the information seems to spread rather well. Still, I am sure there are great services that I am missing (a recent one that someone mentioned to me was Dropbox). One often doesn&#8217;t know what is good until those pesky advertisers and marketers push information. My recent research has been looking into the way trademarks as brands have functioned on several levels, but one thing that jumps out is that brands are two-way information devices. Advertising is a major piece of that puzzle in one direction; the Internet and commentary is a major piece of the puzzle in the other direction (trademark law handles this idea poorly). Ironically, just as T.V. and print cry out because ads are being skipped, the Internet steps in and seems to deliver better returns on ads. The new difference is that in some cases those who pay for and create the content that was subsidized by ads are not seeing that money. In other words, as Paul Duguid has shown in his work and I have found in my research, early brands can be understood as having a big role in supply chains; we may need to think of modern networks in much the same way. There are many details and differences to address in the Internet arena, but I think these ideas will be part of how we sort out some of the online competition issues in play today. </p>
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		<title>IP Law and the Presidential Sneakers&#8230;</title>
		<link>http://www.concurringopinions.com/archives/2009/05/ip-law-and-the-presidential-sneakers.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/05/ip-law-and-the-presidential-sneakers.html#comments</comments>
		<pubDate>Tue, 19 May 2009 16:16:25 +0000</pubDate>
		<dc:creator>Jacqueline Lipton</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Consumer Protection Law]]></category>
		<category><![CDATA[Culture]]></category>
		<category><![CDATA[Cyberlaw]]></category>
		<category><![CDATA[First Amendment]]></category>
		<category><![CDATA[Intellectual Property]]></category>
		<category><![CDATA[Politics]]></category>
		<category><![CDATA[Technology]]></category>
		<category><![CDATA[Uncategorized]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=16060</guid>
		<description><![CDATA[<p>President Obama is likely the first true &#8220;celebrity president&#8221;, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights &#8211; a topic much debated on the cyberprof listserve in the early days of this presidency.</p>
<p>In this vein, I couldn&#8217;t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be [...]]]></description>
			<content:encoded><![CDATA[<p>President Obama is likely the first true &#8220;celebrity president&#8221;, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights &#8211; a topic much debated on the cyberprof listserve in the early days of this presidency.</p>
<p>In this vein, I couldn&#8217;t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be in Michigan (although they do not give their postal address, but do require Michigan residents to pay sales tax on purchases from their website) has set up an &#8220;Obama shoes&#8221; website.  On this website, you can purchase Obama sneakers, backpacks, and basketballs.</p>
<p>The website uses video clips from one of Obama&#8217;s speeches and refers to itself as selling merchandise that is inspirational to young folks and that is intended to commemorate Obama&#8217;s inauguration.  Thus, it obviously intends to juxtapose free speech interests in the inauguration against the commercial use of Obama&#8217;s name and likeness.</p>
<p>There are some other interesting little sidenotes about this business venture that suggest the people who set it up sought at least some legal advice before doing so.</p>
<p>1. They used the domain name &#8220;<a href="https://www.obamashoes.tv/">obamashoes.tv</a>&#8221; presumably either because they couldn&#8217;t get a &#8220;better&#8221; domain name or because they wanted to avoid claims under the <a href="http://www.icann.org/en/udrp/udrp-policy-24oct99.htm">Uniform Domain Name Dispute Resolution Policy</a>.  They could argue that even if Obama&#8217;s name operates as a TM, they have not used his actual name in the domain name, but have added &#8220;shoes&#8221; to the end of it so no one will think it&#8217;s an authorized Obama website.  </p>
<p>2. They include a disclaimer on their webpage to the effect that:  &#8220;Obamashoes.tv is a private entity and makes no claim of affiliation or endorsement by President Barack Obama or his campaign for office.&#8221;</p>
<p>3. Interestingly, there is also a disclaimer on their FAQ page about the design of the sneakers themselves.  &#8220;Q. Why does [sic] the shoes look like Nike Air Force Ones (AF1) and the Jordan Brand?<br />
A. These design is [sic] been proven to be commonly preferred by most Adults &amp; Children (black or white).&#8221;  Now, I personally don&#8217;t know anything about sneaker designs, but I assume this is intended as a preemptive strike to ward of claims in trademark, trade dress, and/or design patent with respect to the actual design of the shoes.</p>
<p>So, interesting business model&#8230;<br />
Legitimate free speech?  Or intellectual property law infringement as far as they eye can see?</p>
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		<title>The Blogosphere Running on Fumes?</title>
		<link>http://www.concurringopinions.com/archives/2009/02/the_blogosphere.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/02/the_blogosphere.html#comments</comments>
		<pubDate>Mon, 02 Feb 2009 20:19:44 +0000</pubDate>
		<dc:creator>Dave Hoffman</dc:creator>
				<category><![CDATA[Advertising]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2009/02/the-blogosphere-running-on-fumes.html</guid>
		<description><![CDATA[<p>Gandelman&#8217;s roundup of reactions to Pajamas Media&#8217;s shuttering of its blogging network is worth checking out.  Of the various reactions I&#8217;ve seen, from anger at incompetence, to anger that PJM wasn&#8217;t right-wing enough, I think the best is by Dennis the Peasant, who republished an old post about how to make money online:
The mistake I had made was assuming that some good household data was enough information to get an advertiser to act. It isn’t. What will convince advertisers to advertise on blogs is convincing data that the decision makers for their products are at those blogs. Yeah, high household income is something advertisers like, but if it isn’t coupled with access to the decision maker they have no reason to spend with you. [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="tn_xlarge_Pinto.jpg" src="http://www.concurringopinions.com/archives/tn_xlarge_Pinto.jpg" width="338" height="228" align="right" hspace="5"/>Gandelman&#8217;s roundup of <a href="http://themoderatevoice.com/26102/economy-hits-pajamas-media-pajamas-media-ad-network-to-shut-and-focus-to-be-on-web-tv/">reactions </a>to Pajamas Media&#8217;s shuttering of its blogging network is worth checking out.  Of the various reactions I&#8217;ve seen, from anger at incompetence, to anger that PJM wasn&#8217;t right-wing <a href="http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/01/pajama-media-closes-its-doors.html">enough</a>, I think the best is by <a href=" http://dennisthepeasant.typepad.com/dennis_the_peasant/2009/02/from-november-17-2005.html">Dennis the Peasant</a>, who republished an old post about how to make money online:<br />
<blockquote>The mistake I had made was assuming that some good household data was enough information to get an advertiser to act. It isn’t. What will convince advertisers to advertise on blogs is convincing data that the decision makers for their products are at those blogs. Yeah, high household income is something advertisers like, but if it isn’t coupled with access to the decision maker they have no reason to spend with you. Their job is to convince the decision maker to buy their product. If you don’t deliver that person, they can’t do their job. If they can’t do their job, they are going move on from you to someone who will enable them do their job.</p>
<p>So think about this: What kind of advertising do you see on the Sunday morning talk shows? What kind of advertising do you see in the politically-oriented magazines (as opposed to news magazines)? See much in the way of advertising for computers, cell phones, video games or cameras?</p></blockquote>
<p>This strikes me as intuitively quite right, although I&#8217;ve previously <a href="http://www.concurringopinions.com/archives/2007/08/why_advertise_h.html">written </a>that advertising on some blogs might create a beneficial <a href="http://www.journals.uchicago.edu/JCR/journal/issues/v34n1/340110/brief/340110.abstract.html">exposure effect.</a> (Perhaps this argument is too self-serving to be believed.)</p>
<p>Does the failure of political blogging to make money have any implications for the legal blogosphere? I doubt it, because the legal blogosphere, with one exception I can think of, is basically a nonprofit enterprise.</p>
<p>The Caron Blog Empire has a deal with Thompson-West that seems to fit with the theory, as law professors are the primary decision makers for casebooks.  (Which, of course, explains why such books are routinely overpriced). But I doubt that the law professor blog network is producing a rush of revenue.  Everyone else is subsidized, either directly by their underlying practices or indirectly by their law schools. (Even Volokh appears not to be currently running ads).</p>
<p>The only exception is Above the Law.  Today they are running credit-check &#038; job search ads.  Appropriate.</p>
<p>(Image Source.  A Ford Pinto.  <a href="http://www.motortopia.com/vehicles/view/p/cars/v/3922/i/oleyellow">Go buy it</a>, if you are feeling brave.)</p>
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		<title>Cultural Difference</title>
		<link>http://www.concurringopinions.com/archives/2008/08/cultural_differ.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/08/cultural_differ.html#comments</comments>
		<pubDate>Fri, 22 Aug 2008 03:03:37 +0000</pubDate>
		<dc:creator>Deven Desai</dc:creator>
				<category><![CDATA[Advertising]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/08/cultural-difference.html</guid>
		<description><![CDATA[<p>This is a display in a duty free shop in Guadalajara.</p>
<p></p>
<p>My guess is that the disclaimers are required by law and the multi-pack box cannot be otherwise offered. Still the size of the display and the choice of putting the boxes next to the sign with the sale information rather than just a sign is interesting. Maybe they had to do so or maybe folks are inured to the warnings. Either way it startled me and made me think this display is free market meets information.</p>
]]></description>
			<content:encoded><![CDATA[<p>This is a display in a duty free shop in Guadalajara.</p>
<p><img alt="cigs4.JPG" src="http://www.concurringopinions.com/archives/cigs4.JPG" width="486" height="365" /></p>
<p>My guess is that the disclaimers are required by law and the multi-pack box cannot be otherwise offered. Still the size of the display and the choice of putting the boxes next to the sign with the sale information rather than just a sign is interesting. Maybe they had to do so or maybe folks are inured to the warnings. Either way it startled me and made me think this display is free market meets information.</p>
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		<title>How Far Should Safety Ads Go?</title>
		<link>http://www.concurringopinions.com/archives/2008/03/how_far_should.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/03/how_far_should.html#comments</comments>
		<pubDate>Fri, 07 Mar 2008 18:32:54 +0000</pubDate>
		<dc:creator>Daniel Solove</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Culture]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/03/how-far-should-safety-ads-go.html</guid>
		<description><![CDATA[<p></p>
<p>I was struck (pardon the pun) by these new safety ads by the Metropolitan Washington Council of Governments&#8217;s (MWCOG) Street Smart program.  In addition to the vivid ads (above), there&#8217;s also a radio spot that begins with the sound of a screaming pedestrian getting hit by a car.  You can download the ads at the Street Smart website.</p>
<p>According to the Washington Post:</p>
<p>[O]n average more than 80 people die and 2,000 people are injured a year in pedestrian accidents in the Washington region. . . .</p>
<p>&#8220;The idea of the campaign is to get to the core of the issue. It&#8217;s a life-and-death situation,&#8221; said Jim McAndrew, vice president of Design House, the firm responsible for producing the ads.</p>
<p>D.C. Assistant Police Chief Patrick A. Burke [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="DC-bus-poster2.jpg" src="http://www.concurringopinions.com/archives/images/DC-bus-poster2.jpg" width="535" height="126" /></p>
<p>I was struck (pardon the pun) by these new safety ads by the Metropolitan Washington Council of Governments&#8217;s (MWCOG) Street Smart program.  In addition to the vivid ads (above), there&#8217;s also a radio spot that begins with the sound of a screaming pedestrian getting hit by a car.  You can download the ads at the <a href="http://www.mwcog.org/streetsmart/resources.asp">Street Smart website</a>.</p>
<p>According to the <a href="http://www.washingtonpost.com/wp-dyn/content/article/2008/03/06/AR2008030603617.html">Washington Post</a>:</p>
<blockquote><p>[O]n average more than 80 people die and 2,000 people are injured a year in pedestrian accidents in the Washington region. . . .</p>
<p>&#8220;The idea of the campaign is to get to the core of the issue. It&#8217;s a life-and-death situation,&#8221; said Jim McAndrew, vice president of Design House, the firm responsible for producing the ads.</p>
<p>D.C. Assistant Police Chief Patrick A. Burke said risks have increased in recent years because pedestrians and drivers are often distracted by cellphones and text-messaging. &#8220;We&#8217;ve got to get people&#8217;s attention back on the road and the street,&#8221; he said.</p></blockquote>
<p>The ads are put up on bus and transit shelters.  The poster at the top of this post is a version of the ad that goes on the side of buses.  The purpose of the ad is to shock people into being more careful.  Effective?  Or too vivid?</p>
<p>Hat tip: <a href="http://dcist.com/2008/03/07/terrifying_pede.php">DCist blog</a></p>
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		<title>And Now a Word From Our Sponsors&#8230;: The Ethics of Sponsored Courses and Maybe Chairs?</title>
		<link>http://www.concurringopinions.com/archives/2008/03/and_now_a_word_2.html</link>
		<comments>http://www.concurringopinions.com/archives/2008/03/and_now_a_word_2.html#comments</comments>
		<pubDate>Tue, 04 Mar 2008 03:12:46 +0000</pubDate>
		<dc:creator>Deven Desai</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Education]]></category>
		<category><![CDATA[Teaching]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2008/03/and-now-a-word-from-our-sponsors-the-ethics-of-sponsored-courses-and-maybe-chairs.html</guid>
		<description><![CDATA[<p>Inside Higher Ed details that Hunter College offered a course that was sponsored by an industry group called International Anticounterfeiting Coalition (known as the IACC). The group represents major fashion industry companies. The class well that is where the fun begins. Apparently the</p>
<p>students would create a campaign against counterfeiting in which they would create a fake Web site to tell the story of a fictional student experiencing trauma because of fake consumer goods. One goal of the effort was to mislead students not in the course into thinking that they were reading about someone real.</p>
<p>The article raises some good questions: Why have students perform free labor for the fashion industry (and really pay for the privilege?)? What about the underlying lies? These issues remind me [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="dollars2.jpg" src="http://www.concurringopinions.com/archives/dollars2.jpg" width="240" height="180" align="right" hspace="5"/>Inside Higher Ed details that <a href="http://www.insidehighered.com/news/2008/03/03/hunter">Hunter College offered a course </a>that was sponsored by an industry group called <a href="http://www.iacc.org/membership/members.php">International Anticounterfeiting Coalition </a>(known as the IACC). The group represents major fashion industry companies. The class well that is where the fun begins. Apparently the</p>
<blockquote><p>students would create a campaign against counterfeiting in which they would create a fake Web site to tell the story of a fictional student experiencing trauma because of fake consumer goods. One goal of the effort was to mislead students not in the course into thinking that they were reading about someone real.</p></blockquote>
<p>The article raises some good questions: Why have students perform free labor for the fashion industry (and really pay for the privilege?)? What about the underlying lies? These issues remind me of the <a href="http://en.wikipedia.org/wiki/Lonelygirl15">LonleyGirl </a>issues (there a fake videoblog lured people into what appeared to be a true personal site but was a front for a group launching a film company. Eric Goldman has a set of <a href="http://blog.ericgoldman.org/archives/2008/03/feb_2008_quick.htm">quick links</a> that highlight the problems of user-generated content, ads, and quality. In general the school&#8217;s willingness to offer a class that propagates a shall we say less than authentic Web site is an example of the marketer&#8217;s will. Not that this point should exonerate the school. (Note that apparently <a href="http://www.insidehighered.com/news/2007/07/18/wellmark">Iowa turned down money </a>when it was unsure about naming a school after the donor).</p>
<p>Still according to the article &#8220;other colleges do work with IACC&#8221; including Ohio State University but at least Ohio State does not operate in the same way as Hunter allegedly did. Ohio State seems to set up the projects as out of class activities. Hunter&#8217;s class according to some was directed by the IACC such &#8220;that the professor was required to teach only one side of the issue, had to accept industry officials watching him teach, and had little clout to fight back since he didn’t (and still doesn’t) have tenure.&#8221;</p>
<p>So it goes. Schools need cash and corporations have it. Would a school bow to its donors? Are schools market immune? Of course they aspire to be but the reality is different. Further as public schools lose the endowment race, they will be more and more beholden to outside funding. I am not, repeat not, saying that schools should operate so that they bow to corporate requests. I am saying that the issue is alive and well and not so easy to combat. If the allegations are true, Hunter seems to be the easy case, don&#8217;t do it. The harder ones will be the subtle questions of hiring, curriculum, and building funds which can easily look like a decision based on lack of funds when perhaps other interests scuttled the project.</p>
<p>Hat Tip: <a href="http://yro.slashdot.org/article.pl?no_d2=1&#038;sid=08/03/03/2328232">Slashdot</a></p>
<p>Image: <a href="http://commons.wikimedia.org/wiki/Image:1%2C5_und_10_Dollarnoten.jpg">Manuel Dohmen WikiCommons</a></p>
<p>License: <a href="http://en.wikipedia.org/wiki/GNU_Free_Documentation_License">GNU Free Documentation license</a>, Version 1.2</p>
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		<title>Persuading Surfers&#8217; Eyeballs</title>
		<link>http://www.concurringopinions.com/archives/2007/12/capturing_eyeba.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/12/capturing_eyeba.html#comments</comments>
		<pubDate>Thu, 27 Dec 2007 07:01:29 +0000</pubDate>
		<dc:creator>Dave Hoffman</dc:creator>
				<category><![CDATA[Advertising]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2007/12/persuading-surfers-eyeballs.html</guid>
		<description><![CDATA[<p>It&#8217;s a grim season for Americans who own homes (or, shopping malls).  Luckily, casual blogging for mediocre stakes is quickly filling the gap as the ultimate backstop for the American economy.  Well, sort of:
[W]ith the right mix of compelling content and exposure, a blog can draw a dedicated following, making advertising a low-hanging fruit.</p>
<p>&#8220;This is really a continuation of how the Web in general has enabled smaller businesses and individuals to compete if not at a level playing field, at least a more equitable level,&#8221; said David Hallerman, a senior analyst with the research group eMarketer.</p>
<p>AdSense is an automated program that places targeted advertising on sites big and small. Other programs such as PayPerPost are just as user friendly; bloggers sign up and [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="800px-Ecclesia_romana_(particolare),_XII_sec._d.C.,_mosaico_policromo,_dalla_Basilica_di_San_Pietro.JPG" src="http://www.concurringopinions.com/archives/800px-Ecclesia_romana_%28particolare%29%2C_XII_sec._d.C.%2C_mosaico_policromo%2C_dalla_Basilica_di_San_Pietro.JPG" width="400" height="300" align="right"/>It&#8217;s a grim season for Americans who <a href="http://online.wsj.com/article/SB119867779499850669.html?mod=hpp_us_whats_news">own homes</a> (or, <a href="http://online.wsj.com/article/SB119862576458749597.html">shopping malls</a>).  Luckily, casual blogging for <a href="http://www.statesman.com/business/content/business/stories/other/12/26/1226blogs.html">mediocre stakes</a> is quickly filling the gap as the ultimate backstop for the American economy.  Well, sort of:<br />
<blockquote>[W]ith the right mix of compelling content and exposure, a blog can draw a dedicated following, making advertising a low-hanging fruit.</p>
<p>&#8220;This is really a continuation of how the Web in general has enabled smaller businesses and individuals to compete if not at a level playing field, at least a more equitable level,&#8221; said David Hallerman, a senior analyst with the research group eMarketer.</p>
<p>AdSense is an automated program that places targeted advertising on sites big and small. Other programs such as PayPerPost are just as user friendly; bloggers sign up and advertisers cherry pick where they want to place ads based on categories and the number of impressions a site captures.</p>
<p><em></p>
<p>Getting paid might even help validate what may otherwise seem like a silly or obscure obsession.</em></p>
<p>For Samuel Chi, BCSGuru.com started as a way to demystify the convoluted universe of college football rankings.</p>
<p>Chi, a former sports journalist with training in statistics, posts his calculations every Saturday night during the season before official results are released Sunday. From Saturday night to Monday, about 4,000 sports fans log on daily to check out the &#8220;guru&#8217;s&#8221; forecast.</p>
<p>This season, Chi made about $8,000 from the blog; ticket brokers contacted him directly after word about his site got out. AdSense brought in another couple hundred dollars for Chi, the owner of a bed-and-breakfast in Amelia Island, Fla. </p></blockquote>
<p>A few things.  First, it is very hard to imagine that $8,000 is going to validate what is, let&#8217;s be frank, a <a href="http://www.theonion.com/content/node/38664">silly and obscure obsession</a> with college football rankings.  But putting that aside, it strikes me as odd that the article paid so little attention to the potentially pernicious consequences of running targeted ads on a niche website.  With evidence <a href="http://www.concurringopinions.com/archives/2007/08/why_advertise_h.html">growing </a>that online advertising works, even when it isn&#8217;t <a href="http://blog.mozilla.com/metrics/2007/11/26/mozilla-online-advertising-%e2%80%93-an-experiment/">clicked on</a>, there are, I think, two sets of issues to think about.</p>
<p><em>First</em>, privacy law.  As a commentator to Dan&#8217;s earlier post noted, even Concurring Opinions, which has relatively few ads, runs lots of javascript hosted by third-parties.  Obviously, sophisticated readers can <a href="http://noscript.net/">opt out</a> of this collection regime, but the percentage of readers with this level of know-how is small.  I&#8217;m not in the group.</p>
<p><em>Second</em>, total persuasion.  As I argued <a href="http://www.concurringopinions.com/archives/2007/01/total_persuasio_1.html">here </a>and more <a href="http://www.concurringopinions.com/archives/2007/05/politics_privat_1.html">extensively here</a>, we should be troubled by a world in which it is impossible to walk, or surf, &#8220;without feeling like a targeted consumer.&#8221;  In a world where ads are generalized, like T.V., you can a) feel confident in your ordinary defenses to advertising &#8211; skepticism, caution, disbelief &#8211; will work; and therefore b) you will feel the freedom of being unpersuaded, and in making consumer choices that maximize your well-being, broadly defined.   This is not true with targeted advertising. Thus, although it is nice that small blogs like ours can monetize themselves &#8211; indeed, I pushed and continue to support the decision to take on advertising &#8211; we should acknowledge the cost paid by our readers.  Targeted advertising on a blog means that readers become consumers, subject to the most persuasive speech money can buy.  Ultimately, I imagine that almost every blog with non-negligible traffic streams will take on advertising, if only to defray hosting fees.  And folks can be persuaded from cradle to grave.  Even during <a href="http://www.theconglomerate.org/2005/07/advances_in_hum.html">lunch!</a></p>
<p>(Image Source: <a href="http://commons.wikimedia.org/wiki/Image:Ecclesia_romana_%28particolare%29%2C_XII_sec._d.C.%2C_mosaico_policromo%2C_dalla_Basilica_di_San_Pietro.JPG">Wikicommons</a>.)</p>
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		<title>The Brutal Attack Ads Begin</title>
		<link>http://www.concurringopinions.com/archives/2007/12/the_brutal_atta.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/12/the_brutal_atta.html#comments</comments>
		<pubDate>Thu, 13 Dec 2007 16:05:24 +0000</pubDate>
		<dc:creator>Nate Oman</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Humor]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2007/12/the-brutal-attack-ads-begin.html</guid>
		<description><![CDATA[<p></p>
<p>(ht Marc Bohn)</p>
]]></description>
			<content:encoded><![CDATA[<p><object width="425" height="355"><param name="movie" value="http://www.youtube.com/v/7M-cmNdiFuI&#038;rel=1"></param><param name="wmode" value="transparent"></param><embed src="http://www.youtube.com/v/7M-cmNdiFuI&#038;rel=1" type="application/x-shockwave-flash" wmode="transparent" width="425" height="355"></embed></object></p>
<p>(ht Marc Bohn)</p>
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		<title>Lessons in Irony: AMC’s Mad Men and the Advertising World</title>
		<link>http://www.concurringopinions.com/archives/2007/12/lessons_in_iron.html</link>
		<comments>http://www.concurringopinions.com/archives/2007/12/lessons_in_iron.html#comments</comments>
		<pubDate>Sat, 08 Dec 2007 19:15:03 +0000</pubDate>
		<dc:creator>Deven Desai</dc:creator>
				<category><![CDATA[Advertising]]></category>
		<category><![CDATA[Culture]]></category>

		<guid isPermaLink="false">http://www.solove.org/archives/2007/12/lessons-in-irony-amc%e2%80%99s-mad-men-and-the-advertising-world.html</guid>
		<description><![CDATA[<p>Many have noted that cable networks produce some of the better if not the best shows on television of late. The Sopranos arguably started this trend but other shows such as The Larry Sanders Show and Dream On opened the way for more creative shows. Recently Battlestar Galactica and The Wire (possibly the best show in the past 20 years although it and similar shows owe a small debt to Wiseguy, a network show, as a pioneer of the season-long story arc) have shown what can be done with good writing and a dedication to developing complex characters and story arcs. This past summer one show, Mad Men, joined the list of excellent television fare. (Irony hors d’oeuvre: Apparently the term, Mad Men, was coined [...]]]></description>
			<content:encoded><![CDATA[<p><img alt="MadMen2.JPG" src="http://www.concurringopinions.com/archives/MadMen2.JPG" width="288" height="231" align="right" hspace="5"/>Many have noted that cable networks produce some of the better if not the best shows on television of late. <em>The Sopranos</em> arguably started this trend but other shows such as <em>The Larry Sanders Show</em> and <em>Dream On</em> opened the way for more creative shows. Recently <em>Battlestar Galactica</em> and <em>The Wire</em> (possibly the best show in the past 20 years although it and similar shows owe a small debt to <em>Wiseguy</em>, a network show, as a pioneer of the season-long story arc) have shown what can be done with good writing and a dedication to developing complex characters and story arcs. This past summer one show, <em>Mad Men</em>, joined the list of excellent television fare. (Irony hors d’oeuvre: Apparently the term, Mad Men, was coined by none other than the advertising world).</p>
<p>The series focuses on the world of Madison Avenue advertising in the late 50s. The set and costume details alone justify watching a few episodes, but what sets the show apart is the way it captures the highs of American corporate life after World War II and the seeds of the lows to come. The advertising masters drink, smoke, and screw as they manipulate words and images to sell cigarettes, alcohol, cosmetics, and vibrating weight loss devices that happen to have a sex-related side effect.</p>
<p>Irony first course: When the Mad Men must overcome the first wave of restrictions on cigarette advertising the main character who is more than lost and unsure about the changing world offers, “Advertising is based on one thing happiness. And you know what happiness is? Happiness is the smell of a new car, it’s freedom from fear, it’s a billboard on the side of the road that screams with reassurance that whatever you’re doing it’s O.K. You are O.K.” And one is not sure whether he believes he is O.K. or because needs that reassurance at all times he is a master at his game.</p>
<p>Irony Main Course: Unlike shows on HBO or Showtime, <em>Mad Men</em> is on an advertising supported network. So after a scene where characters develop ad copy designed to hide smoking’s harms, one watches the modern advertising created by the characters’ descendants. Of course with DVRs the ads would be missed but even here the show and AMC have a solution. As one clicks&#8211;one, two, three&#8211;to zoom past the commercials, a frame in the show’s opening credits’ look and feel appears. One stops thinking the show is back. But no, instead the interruption offers trivia about the advertisement and/or the company behind the advertisement about to air. Brilliant.</p>
<p>The person who watches the show in part because of the historical aspect of seeing how the advertising world grew now stops to learn more about advertising and specifically the advertising of the advertiser supporting the show. The move also captures the popup video and factoid culture of the nineties. Perhaps the strategy is perverse, but one can admire the irony of watching a show about how advertising manipulates an audience and then being manipulated into watching the advertising. Of course one could ignore or avoid the trick but then again if the advertiser gains just a few more eyeballs or manages to have the product stick just a little longer the advertisement has done its job. Besides did you know that Jack Daniels never revelaed the meaning of Old No. 7? “The first Friday’s Restaurant was in New York City”? “L’Oreal has designed and patented over 120 molecules” “Heineken was first sold in the US in: the 1880’s”? Well stop and watch and you will learn that and much more.</p>
<p>There are many other ways to commend this show, but I would have to indulge in spoilers to do so.</p>
<p>cross-posted at <a href="http://madisonian.net/archives/2007/12/08/lessons-in-irony-amc%e2%80%99s-mad-men-and-the-advertising-world/">Madisonian</a></p>
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