I’ve completed a manuscript for my newest journal article, which began life as some posts (starting here) musing about the legal implications of Facebook’s then-new advertising programs, including Facebook Beacon, which notified users’ friends of their purchases.
“Social marketing” is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers can send personalized promotional messages featuring an ordinary customer to that customer’s friends. Because they reveal a customer’s browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals’ ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation — spanning from privacy to trademark and unfair competition to consumer protection to the appropriation tort and rights of publicity.
This Article examines potential concerns with social marketing and the various legal responses available. It demonstrates that none of the existing legal paradigms, which all evolved in response to particular problems, addresses the unique new challenges posed by social marketing. Even though policymakers ultimately may choose not to regulate social marketing at all, that decision cannot be made intelligently without first contemplating possible problems and solutions. The Article concludes by suggesting a legal response that draws from existing law and requires only small changes. In doing so, it provides an example for adapting existing law to new technology, and it argues that law should play a more active role in establishing best practices for emerging online trends.
This article along with James Grimmelman’s recent Facebook and the Social Dynamics of Privacy, are must reads for scholars interested in the legal implications of information sharing in online social networks. Both are wonderful contributions from some very right-headed scholars.
Today’s recommended post comes from Wendy Seltzer, law professor and fellow at the Berkman Center. In it, Wendy spends some time analyzing the intellectual property aspects of games. With the release of the official Scrabble Facebook application, and numerous C&D’s sent to Scrabulous’ creators, why does Scrabulous remain online? Seltzer states: “Scrabulous remains online, probably because the threats’ legal merits are murky: there are few rights to “a game” as such.”
Seltzer goes on:
Three kinds of intellectual property might protect aspects of a game — patent, trademark, and copyright — but each has limits that leave plenty of room for imitators and emulators.
Moreover, the board design for Scrabble contains only de minimis separable expression. The arrangement of double-letter and triple-word scores is part of the method of play — like tennis’s “if you cross the fault line while serving, the serve is no good,” it merges with the unprotectable idea.
As reported in various blog and print sources, Facebook has announced changes to Beacon, the controversial ad program. According to the reports, there will be a change to the story posting flow, requiring users to approve a story before it is sent to the Newsfeed. This does address some of the concerns regarding information leaks through Beacon.
In a nutshell, when a user on a third-party site sets off a Beacon action, they will be presented with the popup. If the users does nothing, the story will be sent to a queue, rather than to the Facebook. The next time a user sets off a Beacon action, they will be presented with a list of stories to send to Facebook, and can select or reject stories as they deem appropriate. Facebook will also make more clear the posting flow, promising prominent notifications when one logs in and is presented stories to approve.
Notably, there is no mention of a global opt-out, which I believe is a mistake. One of the critical problems with Beacon is it breaks boundaries of privacy between sites, and Facebook provides no apparatus for restoring the privacy. As a result, cookie-based pageview tracking will also continue to occur.
While the response to MoveOn’s call has been tepid – 50,000 signees, the response to Facebook Beacon is still coming. Beacon isn’t evenly distributed around the web; one may not use Fandango or Epicurious or read Techcrunch, meaning there are a lot of Facebook users out there still waiting to step on these Beacon privacy landmines. This is a distinctly different situation from Newsfeed, which was extremely direct. This story will evolve; it will be more of a rolling problem.
In other quick news, tomorrow’s Virtual Citizenship and New Technologies Symposium will be broadcast into Second Life. My talk is at 9:30AM (Eastern) if you’re interested, but I’d really recommend you checking out the talks of my very esteemed fellow presenters. If the excellent conversation we had at dinner is any indication of what to expect tomorrow, it will be worth your while. Full instructions for the Second Life simulcast on the Symposium website.