Content, Control and Socially Networked Media

Professor Jon M. GaronHamline University School of Law

February 2009

Content, Control and Socially Networked Media

Intellectual Property Scholars RoundtableDrake University School of Law

February 2009 Jon M. Garon 2

Trends breathe new life into old issues of privacy

The harnessing of social trends for public predictions and consumer behavior

The growing role of the curatorial audience

The expansion of behavioral advertising

The development of tools to search “the deep web”


Social Networking and Subjective Relevance

change both development and distribution

Social relevance -- determining the importance of goods or services based on social rather than objective criteria -- dominates consumer behavior (e.g., hot tickets, premium seats, designer brands, etc.)

– Social relevance sets the value of many otherwise non-scarce goods– Social networks can be used to harness the subjective relevance in the

development of new goods– May reduce the transaction cost for research and development

Combine subjective relevance with active and passive data collection– Moves beyond the consumer product testing common to industry– Allows for much earlier and more predictive consumer behavior– Uses data to allow the consumer behavior to set the questions as well as

answer them– Data mining may highlight insights into commercial development and

geographical differences in social relevance to improve markets


Web 2.0 and the Search for Subjective Relevance

“We've found that certain search terms are good indicators of flu activity.

– “Google Flu Trends uses aggregated Google search data to estimate flu activity - up to two weeks faster than traditional flu surveillance systems.”

“Each week, millions of users around the world search for online health information.

– As you might expect, there are more flu-related searches during flu season, more allergy-related searches during allergy season, and more sunburn-related searches during the summer.”

google.org Flu TrendsData calibrated to be as accurate as CDC data and arrive two weeks before CDC can release the same information.


Social media for programming film in Brazil

Uses Bit torrent to download a digital “print” for showing

In different cities, the programming changes The physical social environment married to

the on-demand movie activity

MovieMobz

Using Internet, participants vote on movie of the week

Theater announces which movie will be shown by e-mail


The “Curatorial Audience” demands a role

YouTube has become pervasive

Audience expects to collect content, post comments, promote views and participate in distribution

Commercial producers are unlocking controls to share in new audience interaction


Watching is not enoughFew better examples of curatorial behavior than Hulu’s tool to embed President Obama’s address to Congress in one’s own website

• This is a new relationship between author and audience•Very well suited to a “Platonic democratic ideal”•Requires new approaches for traditional commercial authors

Allows the curatorial audience to seek revenue for their own websites


But the revenue models from the curatorial audience are not yet adequate for commercial production

Commercial content still leads: Hulu.com has greater revenue than YouTube despite YouTube’s 20x lead in viewership

– “The half-hour comedies … popular on Hulu (“Family Guy” from Fox and “The Office” from NBC) have an average of eight minutes of commercial time on TV.

– On Hulu, where the sitcoms are especially popular, each show averages about two minutes of ads.” (-NY Times)

Pricing: Hulu can charge premium ad prices for ad exclusivity, but increases are 10-40% rather than the 400% necessary to make TV and online revenue the same

– As viewers migrate from TV for same content, the pricing model must change (cheaper shows; subscriptions; download fees; etc.)

Tracking: To demand advertising fees, companies are looking to make the advertising increasingly relevant to the consumer

– This can only be done by tracking the behavior (or “advertising channels, like Travel, Finance, or Luxury cars.” - Webwise.Phorm.com)

RFID: These online suggestions do not even get to the next step - adding RFID and other non-Internet tracking data (yet)


Better ads are more highly personalized

Contextual Advertising – ads that relate to the content on a particular site (e.g. a coupon for luggage on a travel site) draws its relevance to the content available to every viewer

– Relevance of advertising is preferable– No consumer information is sought or used– FTC sees no need to regulate

Online Behavioral Advertising – “Online behavioral advertising involves the tracking of consumers’ online activities in order to deliver tailored advertising.” (FTC)

– “The practice, which is typically invisible to consumers, allows businesses to align their ads more closely to the inferred interests of their audience.”

FTC promulgates updated but voluntary guidelines– Significant practices are recommended– FTC has only issued voluntary guidelines thus far– FTC does not extend to “first party” advertising, meaning that the

guidelines do not apply to the company collecting the data for its own use


FTC Behavioral Advertising Principles(February 12, 1009)

1. Transparency and Consumer ControlEvery website where data is collected for behavioral advertising should provide a clear, concise, consumer-friendly, and prominent statement that (1) data about consumers’ activities online is being collected at the site for use in providing advertising about products and services tailored to individual consumers’ interests, and (2) consumers can choose whether or not to have their information collected for such purpose.

2. Reasonable Security, and Limited Data Retention, for Consumer Data Any company that collects and/or stores consumer data for behavioral advertising should provide reasonable security for that data.

Companies should also retain data only as long as is necessary to fulfill a legitimate business or law enforcement need.

3. Affirmative Express Consent for Material Changes to Existing Privacy PromisesAs the FTC has made clear in its enforcement and outreach efforts, a company must keep any promises that it makes [so] before a company can use previously collected data in a manner materially different from promises the company made when it collected the data, it should obtain affirmative express consent from affected consumers.

4. Affirmative Express Consent to (or Prohibition Against) Using Sensitive Data for Behavioral AdvertisingCompanies should collect sensitive data for behavioral advertising only after they obtain affirmative express consent from the consumer to receive such advertising.


Deep searching and the semantic web

James Geller, et. al., IEEE Computer Society: “Many organizations generate backend data that is dynamically retrieved through Web-form-based interfaces and thus not indexed by conventional search engines.”

– “This hidden, invisible, and nonindexable content is called the Deep Web, and its size is estimated to be tens of thousands of times larger than the surface Web.”

– “A major goal of the Semantic Web is to facilitate the automation of e-business processes and services: Software agents (softbots) with rich semantic knowledge and reasoning capabilities automatically roam the Web, find data and services, and combine them to achieve business goals.”

– Goals to improve deep searching are “gaining acceptance of an “open source attitude” in the e-commerce realm to make building Deep Web ontologies easier by accessing currently securely locked data sources; [and] creating libraries of semantic crawlers for the purpose of extracting back-end database information…”

Deep searching can improve efficiency, increase access to content, etc.

Deep searching can be used to increase cross-referenced of personally identified information and expand behavior tracking for behavioral advertising or other identity searches

Jon M. Garon

Amazon Consolidating content distribution through BookSurge, CreateSpace and Kindle

Broader range of media and goods than any online competitor

Closely tracks user behavior to suggest new products and services

Kindle: Physical device sold at loss Wireless so ties user to site Sells many e-books at loss to build

affinity Proprietary format No need for computer – so no

leakage in distribution pipeline from company to consumer (no middlemen)

Vertically integrating all publishing Actively soliciting authors and

publishers to sell exclusive ebook content in its format

Refusing to deal with other print-on-demand companies

Can Amazon monitor users reading habits and making recommendations for its products and services?

Can Amazon scrape Netflix data to make better recommendations?


Scary but possible: eMelody

Deep web searches use log-in password on other sites (since most people repeat passwords) – and the EULA even gives it permission to do so (just as financial aggregators do)

Track viewing of particular media viewed; religious behaviors; content read in news, blogs, etc.; purchases and travel;

Directs faux-ads to further test user behavior Creates match recommendations on behavior rather than self-

identified preferences– eMelody knows more about you than your mother– eMelody knows more about you than you know about

yourself

Cookies enable the match site to identify user’s actual behaviors

Individual’s own answers tested against trends in its database


Modest recommendations for a 12-minute presentation

FTC Guidelines must become federal law, not merely best practices New laws must reach any storage of personally identifiable information (PII) as

well as reproduction and use New law may be needed to protect PII from deep web searching

– Control: Allowing deep web searching should require same notice and opt-in consent as disclosure by site operator

– Fiduciary Duties: Content repositories should have fiduciary obligations to assure that private data is protect from third party use in a manner consistent with the site’s own obligations and rules for third party usage

New laws may be modeled after COPPA requirements that website operators obtain verifiable consent regarding information sharing and allow distribution only with express consent. See 16 C.F.R. § 312.4

A European model would be preferable to voluntary guidelines, but it is unlikely to create affirmative fiduciary duties from deep searching

All governmental use of PII must meet same opt-in requirements or be accessed only with a bona fide search warrant

– Phishing for criminals and profiling should be prohibited by law– Honey traps must be narrowly built to avoid entrapment


Conclusion – beware what familiarity breeds

The trends bring great promise– The harnessing of social trends for public predictions

and consumer behavior– The growing role of the curatorial audience– The expansion of behavioral advertising– The development of tools to search “the deep web”

But with these promises come potential for abuse– Reassert privacy concerns– Full disclosure and opt-in use for behavioral targeting– Require protections from unauthorized behavioral data

mining and deep searching of PII

Professor Jon M. GaronHamline University School of Law

February 2009

Content, Control and Socially Networked Media

Intellectual Property Scholars RoundtableDrake University School of Law

Content, Control and Socially Networked Media

Documents

Transcript of Content, Control and Socially Networked Media