As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

For more information please visit http://www.youtube.com/yt/copyright/faq.html

I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review.
2. To learn about the game and how to play certain parts.
3. To see how I handle and react to certain parts of the game.

Since I started my gaming channel, I’ve played a lot of games. I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers.

• Why is it that car companies seem to have a hard time NOT making offensive ads? Ford India recently apologized for some terrible ads depicting bound and gagged women in the spacious hatchback trunk of a Ford Figo. But Ford wasn't the only example, Hyundai and GM also had some horrible commercials to retract recently. [url]
• Dr Pepper posted an ad on Facebook with a common geeky joke, showing the evolution of humans -- starting with a chimp-like ancestor and ending with a modern upright person holding a can of his favorite beverage. Poking the beehive of anti-evolution religious folks might be a fairly safe way of creating some controversy, but it probably doesn't sell that much more sugar water. [url]
• The Economist once ran an ad for itself, asking "Why should women read The Economist?" Maybe publications written by -- and read by -- mostly men should be a bit more careful when trying to step away from being a "Maxim for nerds"..? [url]

Ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed the representations. Accordingly, Google did not engage in conduct that was misleading or deceptive.

Safe harbors from secondary liability are essential for Internet platforms and businesses, and it is encouraging when other countries affirm these principles.

Fortunately, one common user of Captcha is dismissing it from their site. Ticketmaster has decided that Captcha is now too hated to use. Are you ready for the massive change?

Ticketmaster has moved to ditch it in favour of a simpler system. It means users will write phrases, such as "freezing temperatures", rather than, for example, "tormentis harlory".

The average time to solve a Captcha puzzle was 14 seconds, while the new system was taking users an average of seven seconds to figure out.

Not surprisingly, SodaStream would like to advertise this fact.  In fact, it is so keen on advertising the relative benefits of its product over the more traditional route of buying pre-made soda from the store that the company ponied up for a Super Bowl commercial.  Unfortunately for SodaStream, the ad was rejected by CBS, not because it was too risque, but because it “disparages” other major advertisers (which is apparently more objectionable than borderline softcore porn a la GoDaddy and Mercedes).  As Ad Age reported:

The content of its planned commercial seemed to have concerned CBS because it was a direct hit at two other Super Bowl sponsors and heavy network TV advertisers: Coke and Pepsi.

We’ve discussed elsewhere CBS’s newfound affinity for the ban hammer, but this isn’t even the first time this has happened to SodaStream.  British regulatory authorities yanked Sodastream’s first major advertising campaign for “being too disparaging towards soda manufacturers like Coke and Pepsi.”

How disparaging was SodaStream that its ads were pulled from television?  Well, it simply pointed out that SodaStream was more environmentally friendly than drinking off-the-shelf sodas because, with SodaStream, “you could save more than 2,000 bottles a year.”  Wow, that is incendiary.  Not safe for public consumption!

It gets better.  Clearcast, the NGO — funded by the British broadcasters — that pre-approves most advertisements for British television, reportedly offered this rationale for pulling the ad:

The majority decided that the ad could be seen to tell people not to go to supermarkets and buy soft drinks, [and] instead help to save the environment by buying a SodaStream. [SodaStream] was also told that it constituted denigration of the bottled-drinks market.

Hypocritically, U.S. broadcasters have allowed Pepsi to air Super Bowl ads that bashed Coke directly, as Ad Age also pointed out:

Interestingly enough, Pepsi has scored big points with viewers over the years by showing Super Bowl ads with Coke deliverymen abandoning their employer wholesale for a sip of a Pepsi drink.

Moral of this story:  Pepsi and Coke can attack each other over trivial differences in their products, but don’t attack the business model of big incumbent advertisers.

Fortunately, there is an upside for SodaStream.  All the controversy that these ads have stirred has generated a buzz around them.  The SodaStream “banned Super Bowl ad” has already generated more than two million hits on YouTube in two days and generated a media buzz around the company itself.  And that’s without having to splash $3.8 million worth of cash for a Super Bowl commercial.  Another example of the Streisand Effect in action.

[SodaStream is running a commercial during the Super Bowl, but it was forced to replace Coke and Pepsi with fictional soda companies.  However, that ad only has a little more than 17,000 YouTube views in the last two days.]

Cross posted from Project-Disco.

• 86% of Americans say they do not want "political advertising tailored to your interests." Somewhat smaller majorities also said they don't want ads for products and services (61%) or news (56%) tailored to their interests.
• 85% agreed "If I found out that Facebook was sending me ads for political candidates based on my profile information that I had set to private, I would be angry.”
• More than 3/4 said they wouldn't return to a website if they knew if was sharing information about them with political advertisers.
• 70% say they would be less likely to vote for a candidate they support if they found out that their campaign was using Facebook to send ads to friends of that person saying they "like" that candidate's Facebook page.
• And two-thirds said their likelihood of voting for a candidate would decrease if they found out they were tailoring messages to them and their neighbors by purchasing information about their online activities, and then sending them different messages based on what might appeal to each.

"The Annenberg study is interesting but raises more questions then it answers. From a methodology standpoint the researchers never asked respondents if they were registered to vote and whether or not they voted in the last election. Regrettably a majority of Americans don't show up at the polls because they have become disaffected by the process. It's unclear if the respondents are the same people who don't show up at the polls or if they are in fact engaged in the process. Secondly, the researchers made little to no effort to inform the survey respondents that the technology used for targeting is, in fact anonymous. The presumption that an individual's privacy is violated would lead one to assume the results would be negative. Lastly, there are many surveys that indicate Americans do not like negative campaign advertising, exercise or healthy diets. The fact that Americans do not like these things does not make them bad."

"It is understandable that Americans think that they don't want political advertising tailored to them when asked directly. But the simple fact is, and as this report points out, political advertisers have been tailoring messages to Americans since the beginning of the modern political campaign. When cable TV began political advertisers would choose what channels to advertise on based on their desired demographics and sometimes tailoring different ads on different channels. Tailored online advertising is not very different from tailored direct mail, which has proven very effective."

"People like Walsh, Massicotte and Masterson, and the political operatives and politicians who hire them, may want to remember one key thing about the Internet. Unlike TV or direct mail, it's a two-way medium. The people who are being targeted can talk back. And lately, salient numbers of people have been talking back at all kinds of targets. If the political targeting industry and its clients aren't careful, they may find the bulls-eye painted on their backs."

More specifically, and by way of non-limiting example, the www.buzzfeed.com website uses an embedded flash player to present a first data type of a video file of "Boris v Romney" along with the presentation of advertising data of a second type that includes a static image advertisement for "Sour Patch Kids," for example.

For purposes of Claim 64, when a web browser of a client device displays the Defendant Website, the web server that serves the Defendant Website downloads both the video file (first data type) and the static image advertisement (second data type). The web server that serves the Defendant Website then executes executable code created by Defendant’s content authors/website administrators. The executable code includes both the first and second commands for the presentation of the first and second data types, respectively. The executable code couples the presentation of the first and second data types. That is, because the first and second data types are linked together via executable code, the presentation of the first data type causes the presentation of the second data type, automatically. The web server that serves the Defendant Website presents the first data type to the web browser of the client device. Namely, video file of "Boris v Romney" is presented along with the static image advertisement for "Sour Patch Kids." Thus, the presentation of the video file causes the presentation of the static image advertisement, though not necessarily always in that order.

• Automatically serving ads without a human editor to judge the appropriateness of the content can be a really bad idea -- especially when placing ads on news items. Yahoo News recently inserted ads for Express clothing on a news photo -- unfortunately the photo pictured a distraught man who survived an attack by Taliban militants. [url]
• KFC ran a commercial in the UK a few years ago that set a record for complaints -- because viewers thought it encouraged bad manners and mocked people with speech impediments. This commercial has held on to its record to this day, but there probably aren't many agencies vying for the title. [url]
• Pizza Hut knows its customers love pizza, but does a love of pizza correlate with disliking math? This commercial needs to show its work on how it arrived at its conclusion. [url]
• Kenneth Cole is trying to raise "awearness" with some edgy ad campaigns. But one of its billboards generated some backlash from teachers when it suggested that teachers' rights were at odds with student interests. [url]

At the core of the '545 patent is the basic idea that one can use advertisement as an exchange or currency. An Internet user can pay for copyrighted media by sitting through a sponsored message instead of paying money to download the media. This core principle, similar to the core of the Bilski patent, is an abstract idea. Indeed, public television channels have used the same basic idea for years to provide free (or offset the cost of) media to their viewers. At its heart, therefore, the patent does no more than disclose an abstract idea.

While machine-or-transformation logic served well as a tool to evaluate the subject matter of Industrial Age processes, that test has far less application to the inventions of the Information Age.... Technology without anchors in physical structures and mechanical steps simply defy easy classification under the machine-or-transformation categories.

Whether, or in what circumstances, a patent's general and indeterminate references to "over the Internet" or at "an Internet website" are sufficient to transform an unpatentable abstract idea into a patentable process for purposes of 35 U.S.C.

• A billboard at a London bus stop determines (or tries to) people's gender and present ads accordingly. The system apparently is about 90% accurate, and it doesn't apologize for its mistakes. [url]
• Eyetracking billboards haven't exactly caught on, but the technology exists with cameras that can tell when your retinas are aligned for optimal ad delivery. If these eye-trackers do catch on, there might be a new market of ad-blocking sunglasses... [url]
• Immersive Labs has a prototype ad system that tries to personalize and target its promotions using a collection of software tools that include face recognition and machine learning to figure out the demographics of its audience. The creators of this system say their product will only deliver the ads that people want to see. [Ahem.] [url]
• To discover more interesting advertising-related content, check out what's floating around on StumbleUpon. [url]  

Per the AMPAS rules that govern the qualification for the Oscars, paid ads needed to run in conjunction with a seven day, official theatrical engagement. This was a bitter pill to swallow, as we’ve sold lots of Red State tickets all year long without running a single paid ad. But a rule’s a rule, so after the AMPAS folks signed off on the New Beverly for the home of our Los Angeles run, we spent $9,316 on newspaper ads.

It still makes me queasy – solely because it’s money not well-spent. We’d sold out all of our weekend screenings before the ad ever ran in either of the three papers we bought space in: the LA Weekly (six inch ad), the LA Times (same), and the west coast edition of the NY Times (1/2 page ad).

we ran the flick for a week at Quentin Tarantino’s New Beverly Cinema in Los Angeles (big thanks to Julia!), where we did two screenings a night, which I followed with 30 minute Q&A’s. Tickets were $20 for the Friday to Wednesday screenings and were followed by post-show Q&A’s with Fatty McNoFly, scourge of the skies.

Since few movie sites ever wanna include us in their box office wrap-up pieces (nor mention that we had the highest per screen average for the last two weeks), here’s the financials for how Red State performed that week…

Friday August 19th
6:30PM 215 – tickets sold $4300
9:00PM 215 – tickets sold $4300
Total for Friday, 8/19: $8600

Saturday August 20th
6:30PM 215 – $4300
9:00PM 215 – $4300
Total for Saturday, 8/19: $8600

Sunday August 21st
6:30PM 215 – $4300
9:00PM 215 – $4300
Total for Sunday, 8/19: $8600

Monday August 22nd
6:30PM 154 – $3,080
9:00PM 215 – $4,300
Total for Monday, 8/19: $7,380

Tuesday August 23rd
6:30PM 168 – $3,360
9:00PM 215 – $4,300
Total for Tuesday, 8/19: $7,660

Wednesday August 24th
6:30PM 215 – $4300
9:00PM 228 – $4560.00 (oversold)
Total for Wednesday, 8/19: $8,860

Friday to Wednesday total: $49,700

On Thursday, I didn’t Q&A after the screenings at all, as per AMPAS rules (regarding leaving filmmaker-free screenings open for Academy members so they can watch the flick without influence). Thursday’s ticket price was only $7 for the movie only ($7 is the normal New Beverly admission price, although usually that’s for a non-first-run double-feature). Even that did solid numbers…

Thursday August 25th
6:30PM 175 x $7 = $1225.00
9:00PM 191 x $7 = $1337.00
Total for Thursday, 8/19: $2,562

Friday to Wednesday total: $49,700
Thursday total: $ 2,562
New Beverly Total: $52,262

Of the 2,675 seats available from Friday to Wednesday, we sold 2,580. From Friday to Wednesday, over the course of twelve screenings, merely 95 seats ever sat empty. Had our start time been 7:30 each night, we likely would’ve sold those seats as well (it’s a bitch getting anybody out in L.A., let alone at 6:30 at night; folks are still getting home from work).

• Backpage allows keyword searches. Citing several cases, including Jurin and Rosetta Stone, the court says this is irrelevant.
• Backpage created an adult category. The court cites Dart v. Craigslist in concluding this is irrelevant.
• Backpage takes steps to increase its revenues. Backpage allegedly "tout[ed] its website as a 'highly tuned marketing site' and instruct[ed] posters of ads on how to best increase the impact of those ads." The court responds: "to find Backpage to be not immune from suit based on M.A.'s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to § 230's broad grant of immunity. This the Court may not do."
• Backpage allegedly knew prostitution was advertised on the site. The court cites several cases for the proposition that knowledge is irrelevant to 230's immunity.

The legal novelty of the ruling makes it an important early precedent, but the opinion is not especially persuasive. To me, the judge seemed overwhelmed by both the challenging legal doctrines and technology at issue in this case. In response, the judge issued one of the most citation-free opinions of its length that I have ever seen. This is not a scholarly opinion, and that makes less likely to influence other courts. It also means that an appellate court will likely give this opinion relatively low deference.

The fact that the court dismissed the lawsuit is, on its face, good news for both search engines and advertisers. However, I thought the judge's arguments were questionable and, at least at one crucial juncture, internally inconsistent. The ruling turned on a specific word in the Wisconsin publicity rights statute, and courts applying other statutes can easily distinguish this opinion if they want to rule for the plaintiffs. Therefore, this ruling could morph from a defense win into a plaintiff's friend depending on how future courts rely on and interpret it.