Techdirt. Stories filed under "reviews"

Yelp Fights Back Against Carpet Cleaning Service That Sued Anonymous Critics For Defamation

Mike Masnick — Fri, 10 May 2013 15:48:30 PDT

We've seen plenty of lawsuits involving people upset about Yelp reviews, but here's a fairly extreme case. Apparently, a DC-area carpet cleaning service named Hadeed Carpet Cleaning, which is somewhat infamous in the area for its "pervasive advertising" and direct mail coupons promising a $99 cleaning special, does not have the greatest reputation on Yelp. The key issue: apparently that $99 deal is often not honored. Also, there are multiple reviews of people getting a quote, dropping off a carpet, and then being told later if they want the carpet back they have to pay much more -- with various excuses being offered as to why they're charging more than the quote.

Hadeed then decided to sue seven anonymous reviewers for defamation. Here's the oddity: Hadeed does not appear to be suing them over the contents of the bad review. In fact, the company doesn't seem to dispute the various complaints about its pricing practices. Rather, it argues that it could not match these seven reviewers to actual customers within its database, and therefore, the reviewers are defaming them by misrepresenting that they were ever Hadeed customers. Hadeed appears to suggest that they reviews were really written by a competitor.

As we've discussed, many courts have adopted the so-called Dendrite rules for identifying anonymous speakers. The rules require giving the anonymous users a chance to respond and (more importantly) require the plaintiff to present enough evidence to prove there's an actual case. However, the court in Virginia chose to not apply any such rules, but rather allowed a subpoena to Yelp ordering it to identify the posters. Yelp has refused, and the court ordered compliance, which Yelp again refused, leading to the court saying Yelp was in contempt.

Public Citizen has now filed a brief on behalf of Yelp with the appeals court, arguing both that the Virginia court had no jurisdiction over Yelp, a California company, and that Yelp was correct to ignore the order since the First Amendment (which protects anonymous speech) requires much more proof before an anonymous speaker can be revealed.

When pervasive advertisements from a local merchant feature prices that seem to be just too good to be true, they may, in fact, not be the price that the average consumer will pay. Dozens of consumers who have used pseudonyms to post about their experiences with appellee Hadeed Carpet Cleaning, Inc. (“Hadeed”) on the popular website www.yelp.com, maintained by appellant Yelp Inc. (“Yelp”), report that Hadeed routinely fails to honor the advertised discount prices. Hadeed’s responses to several consumers on Yelp suggest that it recognizes the problem; yet its complaint for defamation singles out the authors of seven reviews posted on Yelp that say the same thing as the other online detractors of Hadeed and its sister business, Hadeed Oriental Rug Cleaning. Based on that allegation, Hadeed invoked the court’s subpoena power to strip its pseudonymous critics of their First Amendment right to speak anonymously.

The main question on this appeal—an issue of first impression at the appellate level in Virginia—is whether the trial court applied the proper legal standard in overriding the anonymous speakers’ First Amendment rights. Courts elsewhere have recognized that, given the valuable role played by the First Amendment right to speak anonymously in encouraging ordinary people to express themselves fully, it is necessary to balance that right against a plaintiff’s right to seek redress for wrongful speech by adopting a standard requiring a plaintiff to do more than articulate a good faith belief that the speech “maybe tortious.” Before stripping the defendant of a First Amendment right, these courts take an early look at the merits of the plaintiff’s claim to determine whether a valid claim has been alleged and whether there is a prima facie evidentiary basis for that claim. In this appeal, Yelp urges Virginia to adopt the same approach, and to remand this case to give Hadeed an opportunity to pursue its subpoena by meeting the proper standard.

In the meantime, though, we have yet another case of a company suing over Yelp reviews -- which just makes me wonder how they ever expect to get more customers. Any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.

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Med Express Apologies For Suing Customer, Says It Was A Mistake, But Doesn't Mention The Long List Of Similar Lawsuits

Mike Masnick — Thu, 18 Apr 2013 12:33:42 PDT

Earlier this week, we posted about eBay seller "Med Express" suing a customer for leaving accurate, but negative, feedback on eBay. We found the story from Paul Levy's original post on the Public Citizen website, and a bunch of other sites picked up on the story, including our friends at Popehat and Ars Technica.

Yesterday, Richard Radey, the President of Med Express made the rounds on all of those sites, including ours, issuing what may appear to be a heartfelt apology, saying that he never intended the customer to be a target, that the company fully supports any and all feedback, and that he had not read the actual lawsuit until the issue got attention. He also claims that he was trying to deal with a separate, but related issue in getting eBay to remove a "Detailed Seller Rating" which impacts how much Med Express has to pay. He claims that the "low ratings caused us to lose our Top Rated Seller Plus" standings, which could lead to "a potential fee increase of tends of thousands of dollars over the course of the year." And, he claims, the only way to remove those "is by court order" and he "was told that such court orders were not uncommon." He concludes:

The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.

That certainly sounds sincere. But is it? The first thing that struck me was that he said low ratings, plural -- not the single low rating we had heard about. And, indeed, Paul Levy has presented a compelling argument that Radey's apology raises more questions than it answers. First off, he discovered that Med Express has been filing similar lawsuits for years, all against customers who leave ratings that Med Express does not like. In one, quite incredible, case, they even sued a guy who left an accurate neutral review. Yes, it wasn't even negative. And the company still sued.

Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst. I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.” Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.” As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback.

Rogan could have suggested that the advertising and sale of an item that the seller knew it could not deliver violated FTC rules for mail-order merchants, but he gave the company the benefit of the doubt while concluding, at the same time, that other customers ought to learn that Med Express cannot always be trusted to have the goods that it is advertising. His generosity did not prevent Radey from signing an affidavit averring that the neutral feedback and negative statement were “false,” attempting to get an injunction requiring that the feedback be taken down, and demanding an award of compensatory and punitive damages as well as attorney fees—not the $1.00 in nominal damages that Radey claims are all that he wanted his lawyer to seek against Nicholls.

Yeah, also, that signing an affidavit thing is a problem. Radey suggests in his apology that he didn't know what was going on, and seems to imply that this was a one off thing. But based on Levy's research, we see a long list of similar lawsuits -- and they include affidavits signed by Radey. So for him to claim he was unaware of what was going on seems quite questionable.

In the meantime, it appears that the customer who was at the center of the original lawsuit, Amy Nicholls, has found highly qualified pro bono help in the form of Tom Haren and Jeffrey Nye, and they've already filed a response and counterclaims. That also means that, even if Radey wants to dismiss this lawsuit, he can no longer do so unilaterally. If Nicholls, represented by Haren and Nye decide to pursue this, Radey may really regret trying to silence customers.

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Digital Camera Review Taken Down By A Botched DMCA Notice That Makes Claims Of Trademark Infringement

Tim Cushing — Thu, 21 Mar 2013 13:12:20 PDT

We've seen the DMCA takedown process abused to stifle criticism or remove unflattering content from the web. Knowing that, the first reaction to reading about a website being forced to remove a product review after being hit by a DMCA notice is to assume some overzealous representative of the affected company is simply using copyright's powers for evil.

DigitalRev recently posted a review comparing GoPro's Hero 3 camera with Sony's HDR-AS15. Not long after that, a DMCA notice arrived from GoPro (or rather, its "brand representative"), demanding that the review be taken down. So far, so censorious. But the DMCA notice sent didn't describe any sort of copyright violation. Instead, it headed off into a completely different IP area.

The notice starts out like many others:

We are providing you this letter of notification pursuant to the Digital Millennium Copyright Act 17 USC??512(c) to make Softlayer.com aware of material on its network or system that infringes the exclusive copyrights of Woodman Labs, Inc d/b/a GoPro (“Company”). We hereby affirm that the undersigned is authorized to act on behalf of Company whose exclusive intellectual property rights we believe to be infringed as described herein.

Barring the extraneous question marks, this all looks perfectly normal. But the next paragraph reroutes the entire DMCA.

We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company:

“GOPRO” Registered: 3/3/2009 US Registration# 3032989

“HERO” Registered: 12/20/2005 US Registration# 3308141

At this point, the notice's issuer, Patrick Hayes (Brand Manager for Woodman Labs), is in uncharted territory. The Digital Millennium Copyright Act notice is for copyright violations only, as can readily be determined by name of the notice itself. Hayes reasserts his trademark violation claim a few paragraphs later, along with a sentence that briefly raises copyright again before returning to the misguided effort at hand.

As you may know, if this information is not removed after notice that complies with the DMCA, the Internet Service Provider may also be held liable for the copyright infringement.

I have a good faith belief that use of the trademark(s) described above in connection with the domain and URLs described above is not authorized by the trademark owner, and such use is not otherwise permissible under applicable law.

I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner.

Hayes really shouldn't be "representing" that any of this bizarre IP melange is "true and correct." Most of it isn't, starting with using a copyright-only takedown form to shutter a review over alleged trademark infringement. Then there's this: the trademarks mentioned are character marks for the name of the product itself -- "GoPro Hero" -- suggesting that DigitalRev is not allowed to use the name of the product when reviewing the product. This is not how trademark law works. At all.

Hang on, though. It gets a bit weirder from there.

As I mentioned earlier, the first reaction is that GoPro doesn't like DigitalRev's review and wants it removed before many more people can read it. (That was DigitalRev's first instinct as well, as detailed in its follow-up post on the subject.) Fortunately, DigitalRev screencapped the relevant part of the review.

There's nothing in that review that looks like it should trouble GoPro enough to overreact in this fashion. In fact, commenters on the site point out that DigitalRev's reviews of GoPro products usually range from "positive" to "overenthusiastic." So, if the review isn't the issue, what is?

Thankfully, another rep from GoPro responded quickly to clear up the confusion... by adding more confusion. The official statement, left at both Reddit and PetaPixel reads as follows:

Thanks for the heads up on this issue. The letter that was posted next to the review on DigitalRev was not sent in response to the review. Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store. As part of our program – we ask merchants who are selling our product to use authorized images. That is why DigitalRev was contacted. But – our letter did not clearly communicate this and that is something we will correct.

There are a few problems with this, but first and foremost is the fact that the URL specified in the takedown notice is the review's URL. Nothing involving DigitalRev's online store was mentioned in the letter and no offending URLs listed. Not only that, but this rep claims to have spotted offending 'images,' something the mentioned trademarks don't cover. A comment left at PetaPixel by GoPro's social media rep adds this to the conversation:

There are a few things that are muddling this situation at the moment. The notice was sent to digitalrev.com not because of the review, but because digitalreview.com is not an authorized reseller and are using our trademark and product images inappropriately. The notice is in regards to the sidebar, not the review itself, but we can see why it seemed like it as the url links to both.

We would never attempt to restrict anyone's freedom to share their opinion about us or our products, positive or negative.

Even if this rep is correct and Woodman Labs meant to target improper use of its trademarks, it missed with both the delivery system and the URL specified. A DMCA notice can't stop trademark infringement. Furthermore, while a hosting company can be held liable for contributory trademark infringement, it's usually a result of the host mishandling takedown notices (and some conflation of copyright and trademark by the presiding judge), rather than a foregone conclusion. Then again, if you want to hold a service provider liable for this sort of infringement, it helps to use the standard process -- directly contacting the site owner and asking him or her to remove the infringing items. Using a DMCA notice for alleged trademark infringement is just plain wrong, although various GoPro reps' insistence that the trademark infringement includes "images" most likely explains the existence of this half-copyright, half-trademark aberration.

However, the most probable explanation for this IP circus is probably contained in this blog post from last November, which details the author's brief altercation with Patrick Hayes and Woodman Labs over a parked domain containing the word "gopro." The letter he received accused him of "domain infringement," and while the tone of the letter was generally cordial, Patrick Hayes made the assumption that any registration of the term "gopro" could only be related to Woodman Labs' products.

GoPro does not authorize any of its resellers (or anyone else) to use “GoPro” or “HERO” in domain names. Your registration of goprodivemaster.com is unfortunately in direct violation of this policy. We understand that your intention is simply to sell and promote our products, but GoPro cannot risk misleading customers into believing that they are interacting directly with GoPro when they are engaging with your website or your organization. The use of our trademark terms in your business name may cause confusion, and is prohibited under international trademark law.

Even if the domain redirects to another site, this is not a permissible use of our brand terms.

Please understand: GoPro has spent years building its brand name—only the company itself is legally represented as “GoPro” or the manufacturer of the “HERO” line of cameras. We need you to kindly discontinue the use of our registered/trademarked name as soon as possible.

The author points out that his parked domain had nothing to do with GoPro or its cameras. He also points out that this issue will certainly surface again, considering the Professional Association of Underwater Instructors uses the term quite often in relation to its instructor development centers. Additionally, he did a little detective work and checked out the WHOIS information on the email address and found the domain was associated with MarkMonitor. So, it appears GoPro is outsourcing its IP protection to a company that seems to take a pray-and-spray approach to takedown notices.

Quite possibly it takes little more than having the word "gopro" appear in a URL (like the review above) to summon the bot-fury of MarkMonitor and Patrick Hayes, "Brand Manager." This explains the bizarre trademark claims and the incomprehensible takedown of a positive review. If this is indeed the case, GoPro is probably considering taking the job back in-house, seeing as its reputation is being damaged further with each retelling of this unfortunate saga.

UPDATE: GoPro's Twitter account claims that five other URLs were included in the takedown notice, but were scrubbed by DigitalRev prior to publishing. However, it has not posted the unedited version for verification.

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News.com Picks Best Of Mobile World Congress, But Leaves You Wondering Which CBS Lawsuit Partner They Didn't Review

Mike Masnick — Thu, 28 Feb 2013 16:06:40 PST

Mobile World Congress, the big trade show for mobile devices, just wrapped up. It's become sort of the go-to place for mobile device makers to announce their new products (even though two of the bigger Android developers, Samsung and HTC, decided to do their big announcements outside of MWC). For the tech press, it's the the "next big show" after CES. As you may remember, there was a bit of a kerfuffle as CNET's parent company, CBS broke down (with sledgehammers) that big wall between business and editorial by forcing CNET to take away the "Best of Show" award they had chosen to give Dish's latest DVR, all because CBS was suing Dish over the product. So, when I saw that CNET had awarded the Ubuntu Touch as "Best of Show" for MWC, all I could wonder was what products did CBS ban CNET from covering at MWC. Once tainted, it's difficult to trust their reviews ever again, which is a real shame.

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A Merger Challenge Not Worth Rating: The DOJ's Misguided Suit Against A Paltry Software Merger

David Balto — Wed, 27 Feb 2013 13:19:00 PST

The following is a guest post from David Balto, former Federal Trade Commission Policy Director. Mr. Balto represented SunGard Data Systems in the US v. SunGard case described in this post.

Antitrust merger enforcement is a unique area of the law. It requires an assessment of whether a merger carries the potential of significantly harming competition. Courts are not very good at predicting the future and justifiably are very reluctant to prevent or unwind an acquisition without strong evidence of likely anticompetitive effects. Appropriately the antitrust enforcers rarely turn to the courts to try to stop business conduct that is typically procompetitive.

This cautionary approach is particularly necessary in software and other high tech markets. Antitrust analysis works best in traditional products, such as industrial products, that have existed for years in which the characteristics of products and the dimensions of competition are well defined. But in software the products are rapidly evolving, demand is ever changing, and the nature of competition can change overnight. Today's so called dominant firm may find itself an afterthought as the market turns to a whole different set of solutions. Not surprisingly, in the past decade the two litigated challenges to high tech mergers, Oracle's acquisition of PeopleSoft and SunGard's acquisition of Comdisco, resulted in stunning defeats for the Department of Justice's Antitrust Division.

That is why many observers were puzzled when the Antitrust Division sued to unwind the merger between Bazaarvoice, a social software and data analytics company, and PowerReviews, a small provider of online reviews that had less than $12 million in total revenues at the time of the transaction. (No one can seem to recall anytime the Division has sued to block a merger of a firm with an amount as paltry as $12 million in revenue). The merger involves the exciting software for providing ratings for products on the Internet, a product that did not exist a few years ago. Although the Division seems to highlight some documents that seem to suggest potential anticompetitive effects, the wooden analysis of the complaint reflects a simple structural view that overlooks the many dimensions of competition and the dynamic nature of the market. Rather than fully probing the likely competitive effects and dynamism of the online retail industry, the Division describes markets, consumer choices, and entry conditions that do not reflect reality. As a result the complaint is plagued by internal inconsistencies and fails to recognize the true price constraints that mitigate the potential for any harm the DOJ predicts as a result of this transaction.

The DOJ Fails to Articulate a Proper Relevant Market

Antitrust analysis may sound daunting, but it is very straightforward. The lodestar in any antitrust case is to define the relevant market – that is to determine what are the products that effectively compete with one another. In a merger challenge, if the government does not properly define the relevant market then the case is over. Defining the market can be very challenging, especially in dynamic markets such as software. Not surprisingly, the government's defeats in challenges to software mergers have typically been because they did not define the relevant market properly.

The DOJ defines the relevant market as "product ratings and review platforms," or "PRR platforms," and explains that these platforms "collect and display consumer-generated product ratings and reviews online." It is axiomatic that defining a relevant market establishes the boundary between products that do compete and those that do not, and determines the firms or products that constrain the relevant firm’s exercise of market power. As the Ninth Circuit has opined, "A relevant market is identified by considering commodities reasonably interchangeable by consumers for the same purposes. Put another way, the relevant market includes all sellers or producers who have actual or potential ability to deprive each other of significant levels of business." As the literature makes clear, if a putative relevant market is too narrow, and does not account for competitive forces that serve as a real price constraint on the parties, then the analysis risks condemning perfectly legitimate and competitive behavior by imputing market power where it does not exist.

On this count in Bazaarvoice, the DOJ does not get to first base. The DOJ's alleged PRR platform market is too narrow and falls prey to the mischaracterization of market power risk embodied in the literature. PRR platforms are one of many social-technological tools that retailers and manufacturers use to communicate with end-user customers. Bazaarvoice and PowerReviews compete against numerous firms that strive to empower the consumer's voice through social media to "collect, organize, and display consumer-generated product ratings and reviews online." Manufacturers may use popular network-driven social media tools such as Facebook, Twitter, Google+ and Yelp or more nuanced social media tools such as YouTube, Pinterest, and LinkedIn to give the consumer a voice in online product reviews. Alternatively, manufacturers and retailers can include social media tools that are similar, but not identical, to consumer reviews such as question-and-answer, and community forums.

These alternative platforms constrain Bazaarvoice, PowerReviews, and other companies that provide third-party review and aggregating services. When a retailer or manufacturer considers purchasing services from these companies, they do not look only at these two options, but also at the available outlets for consumer review generation provided by the ever-increasing array of social media platforms.

In defining markets, the courts rely on a wide variety of evidence including econometric price studies, other pricing evidence, win/loss data, and testimony of customers. None of this is present in the DOJ complaint. Instead the DOJ relies largely on the defendant's documents, but this is a thin reed indeed. Many of these documents are outdated and ignore the realities inherent in this fast-moving industry. It is debatable whether these documents reflected the true nature of competition at the time they were created. It is certain, however, that these documents no longer reflect the current state of competition. For instance, the DOJ twice references an April 2011 email in which a Bazaarvoice executive characterized the nature of the industry and opined that alternatives to Bazaarvoice are "scarce" and "low-quality." In the intensely rapid changing world of the Internet, documents from 2011 are about as relevant as a floppy disk. Instead of 1) demonstrating that this was in-fact true in 2011, and 2) reestablishing that this description remains accurate, the DOJ's complaint merely assumes that both are the case. However, this description does not align with today's online retail industry or its intersection with social media. These are industries highlighted by dynamism, and it would be incorrect to believe that the relationships between PRR platforms and other social media outlets for consumer reviews have remained stagnant.

Even If One Accepts the DOJ's Relevant Product Market, the DOJ Fails to Recognize the Dynamic Nature of Competition

As explained above, a product market of PRR platforms is not a proper relevant market for antitrust purposes. Even assuming arguendo that PRR platforms constitute a proper market, however, the DOJ's complaint fails to discuss adequately the nature of competition within these parameters.

Two fatal flaws plague the DOJ's analysis. First, the DOJ fails to offer any explanation for portraying the PRR platform market as consisting of just two meaningful competitors and numerous fringe competitors who offer no real constraint. The DOJ attempts to justify this portrayal by analyzing the nature of competition between Bazaarvoice and PowerReviews within the "Internet Retailer 500," but it is unclear why the government focuses so closely on this tiny market segment and it is even less clear whether an impact solely on that segment would violate the law. The DOJ even concedes that the PRR platform industry "can range from simple software solutions a company has developed with internal resources to sophisticated commercial platforms offering a combination of software, moderation services, and data analytics tools." However, despite this wide range of styles and services, the complaint analyzes only a small segment of the market and suggests that these large sophisticated companies have only two effective alternatives.

The Division has made this mistake in the past, and it did not end well. In Oracle the DOJ "failed to prove that there are a significant number of customers (the 'node') who regard Oracle and PeopleSoft as their first and second choices." Instead, the DOJ tried to make the unilateral effects argument with the unpersuasive facts that it had. Judge Walker admonished the DOJ, stating the "Plaintiffs' attempt to show localized competition based upon customer and expert testimony was flawed and unreliable. Moreover, plaintiffs' evidence was devoid of any thorough econometric analysis such as diversion ratios showing recapture effects." (A "diversion ratio" shows how much of one competitor's business will shift to another competitor if there is a price increase.)

The complaint against Bazaarvoice is equally flawed. The diversion ratios will simply not tell a story wherein a sizeable portion of all participants in the DOJ's (already flawed) market perceive only Bazaarvoice and PowerReviews as next-best options. If the evidence of diversion ratios were available, the DOJ would have presented it already. In fact, this is a consummated merger – the real-life data should show this effect if it is true. Instead, the data likely tells a story of widespread, dissimilar, and largely unpredictable cross-elasticity of demand. It is probably the case that no "node" in the PRR platform industry exists because the dynamic nature and subjective needs of clients dictate that there is no significant captive set of consumers choosing only between Bazaarvoice and PowerReviews.

Second, the DOJ completely ignores the concept of self-help in the social media consumer reviews industry. At its core, the products supplied by Bazaarvoice and PowerReviews are based on simple technology. These companies create software that appears on a retailer's website and enables consumers to provide first-hand product reviews. The companies also provide differing analytic and syndication services, both of which are a function of nothing more than intelligent use of data. There is nothing stopping retailers and/or manufacturers from creating the same service and extracting value from the data. Unsurprisingly, companies often perform some or all of these tasks themselves. Amazon stands out as a leader in providing consumer review platforms and uses the data to drive marketing and sale decisions. Zappos, the online shoe and apparel company from Henderson, Nevada provides its own consumer review platform on its website, and uses this information not only to improve sales and marketing, but to provide an added level of consumer care.

Like the question of the consumer "node," the DOJ has also failed to account for internal solutions as a price constraint. Once again the DOJ is forgetting an important lesson from a past defeat. In SunGard, the DOJ tried to block the merger of two firms that provided computer disaster recovery services, which sounded like tremendously sophisticated and complex services. But the court found that self-help ("internal hotsite solutions") was a perfectly adequate option for many customers. The DOJ had portrayed the notion of internal hot sites as expensive and difficult to create, and suggested that not enough customers would turn to internal solutions to prevent the merging parties from raising prices. Judge Huvelle disagreed, and pointed out that, not only did internal solutions exist in some capacity, but that the incentive to create internal solutions would increase alongside any increase in price. Furthermore, the evidence demonstrated that customers had varying needs, and "any generalizations regarding customer behavior cannot be arrived at with any certainty, since it depends on a host of factors, including the type of equipment a customer must duplicate, the particular circumstances and needs of the customer, and in some cases, the size of the customer's operations."

The same can be said for customers of social media consumer review -- any attempt to predict the future needs and behaviors of customers is nothing more than generalization and speculation based upon incomplete data, an uncertain technological future, and dynamic and varied customer needs.

The DOJ Fails to Account Adequately for Entry and Expansion, Both of Which are Likely

The DOJ asserts that anticompetitive harm resulting from this transaction will not be corrected by additional competitors entering the market or existing participants expanding. The rationale for this assertion lies primarily in the DOJ's contention that Bazaarvoice's syndication network creates an insurmountable entry barrier. This statement ignores the fact that PowerReviews entered the market and competed effectively without offering a syndication product on par with Bazaarvoice's. Furthermore, the DOJ makes no attempt to quantify the number of Bazaarvoice customers that take advantage of the syndication offering. In fact, many manufacturers and retailers choose not to utilize this service, instead preferring to outsource to another vendor or perform the analytics in-house.

Notwithstanding these factual oversights, the assertion that Bazaarvoice's syndication network is a barrier to entry fails. The aggregation of data through the creation of consumer reviews is a profitable endeavor, but it is also an easily repeated endeavor. Bazaarvoice's reviews and sophisticated analysis may make it a better competitor but it does nothing to cement Bazaarvoice as an enduring competitor in the face of an improved service. Allegations of network effects as barriers to entry are made far too lazily, and the DOJ would have the trier of fact believe that a piece of data can only be captured once, or is a zero-sum game. This is just not the case. There is competition for data just as there is competition for any other product. Finally, as the value of data continues to increase, retailers and manufacturers will have less incentive to continue outsourcing this portion of the business to Bazaarvoice.

Unsurprisingly, entry is already occurring in this alleged market. Reevoo and Yotpo are new entrants looking to disrupt competition, while Amazon and Google are established market participants looking to grow their profits at the expense of companies like Bazaarvoice. The DOJ's entire theory of harm is premised on a presumption of stagnancy that runs contrary to the nature of the high-tech and electronic commerce industries.

Conclusion

Antitrust enforcement in high tech markets poses special challenges -- to recognize the dynamic fast paced nature of competition, the fluidity of product markets, and the opportunities for new forms of rivalry. Unfortunately, the complaint in the Bazaarvoice case takes a static approach hinged to a few outdated documents. Without more it is unlikely a court will take the draconian step of unwinding this merger.

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What The Tesla / NY Times Fight Teaches Us About The Media

Mike Masnick — Fri, 15 Feb 2013 14:54:07 PST

For media watchers, the very public argument this week between Tesla and the NY Times has been quite fascinating. In case you happened to not be obsessively following each back and forth (what, you have lives?!?), it all began with a NY Times' less than enthusiastic review of the experience of trying to drive a Tesla S (the company's flagship electric car sedan) between a pair of Tesla's new "superchargers." You can read the full review yourself, but the short version is that it did not get the mileage expected, and at one point a flatbed truck needed to come pick up the totally dead car. I will admit that I'm impressed by the Tesla car in general, and most of the reviews have made it out to be about as close to a perfect car as you can imagine (which is pretty impressive considering that it's the first year of the car's existence and it's the first "mass" produced Tesla vehicle). But this review was less than thrilled, since the whole point was to test out the ability to drive between these "superchargers."

Upon publication, Tesla's famous CEO, Elon Musk, began tweeting up a storm about how the article was "fake" and that he had the vehicle logs to prove it. The author of the review, John Broder, responded to many of the tweeted charges, arguing that Musk was misrepresenting things -- leading many watchers to suggest that Musk was making a big mistake in attacking the NY Times.

Then, Musk published a blog post with a graphical representation of the log data they had, in which he argues that Broder lied and even purposely tried to run the car out of juice in order to write a negative story. Musk claims that after their dispute with Top Gear, they now keep logs on any media test drives (though it's unclear if they tell reporters that before giving them the cars). And, suddenly, a lot of people flipped sides, arguing that the data won and clearly the NY Times and Broder had some answering to do. After all, there were charts like this one: Except... then some people started to look more closely at the data and realize that perhaps Broder's story wasn't so crazy and Musk made a number of assumptions that aren't necessarily backed up by the data. For example, Musk insists that Broder claimed he turned down the climate control to low to conserve energy at 182 miles, and points to the fact that at 182 miles, Broder actually increased the temperature over 72 degrees. However, as Rebecca Greenfield points out, in her piece (linked above), it really looks like Musk may have simply assumed incorrectly that the point where this happened was 182 miles, and at about 250 miles it's quite clear that Broder does turn the climate control way down and keep it that way for a while (Greenfield added the purple box below). Then Broder chimed back in as well explaining away most of the accusations, including the charge by Musk that Broder drove the car around trying to run it out of energy:

When he first reached our Milford, Connecticut Supercharger, having driven the car hard and after taking an unplanned detour through downtown Manhattan to give his brother a ride, the display said "0 miles remaining." Instead of plugging in the car, he drove in circles for over half a mile in a tiny, 100-space parking lot. When the Model S valiantly refused to die, he eventually plugged it in.

Except, Broder notes, the "unplanned detour through downtown Manhattan" was not "unplanned" and had been communicated clearly to Tesla beforehand, did not actually go into "downtown" Manhattan, was partially recommended by Tesla employees who thought that the "regenerative braking" might help increase the range and only added two total miles to the trip length. Furthermore, as for the charge of driving around in circles in a parking lot?

Mr. Straubel said Tesla did not store data on exact locations where their cars were driven because of privacy concerns, although Tesla seemed to know that I had driven six-tenths of a mile “in a tiny 100-space parking lot.” While Mr. Musk has accused me of doing this to drain the battery, I was in fact driving around the Milford service plaza on Interstate 95, in the dark, trying to find the unlighted and poorly marked Tesla Supercharger.

Ouch.

In the end this is a fascinating story on many different levels. Dan Frommer makes an excellent point that "everyone's a media company now," noting that it's possible for companies to speak out on their own behalf if they disagree with a story. That used to be a lot harder. He compares that to the Quirky / OXO story we recently covered as well.

But, of course, if you're going to rebut charges made in a newspaper review, the information had better hold up, and it's not clear that it does here. Even worse, it really seems like Musk is making a much bigger deal of this than ever needed to be made. Sure, the initial review wasn't great, but it really didn't strike me as that bad. It basically said that if you try to drive it too far, or if you're unable to charge it enough, you might run out of juice. You know what? Same thing is true of a gas-powered car as well. But Musk has called much more attention to the story in a manner that doesn't necessarily lead to Tesla coming out on top. Carl Malmud's summary seems instructive:

Musk was offended that a reporter didn't operate the hardware properly. Blame the manual, tech support, PR, but not the user.

Musk is obviously quite passionate about the companies he runs and their products. And that's something that's actually quite appealing. Having followed his work for a while, you know that he really is striving to build "insanely great" products. So I can absolutely understand how his first emotional reaction is to lash out at someone who wrote a less than kind review (I've been there myself too many times). But, in the end, it seems like there would have been much better ways to handle this. I'm still a huge fan of the Tesla, and still dream of one day actually getting one, but I'd say that Musk's response probably made me more skeptical of the company than Broder's original article ever did.

When "everyone is the media," amazing and powerful things can happen. And, certainly, the ability to correct the record against questionable stories is something that really changes the game. But, at the same time, everyone is now a fact checker, and that makes for an interesting dynamic for both traditional media companies and those who wade in to respond to them.

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Redditor Points Out The Flaws In SimCity's Online-Only DRM, Gets Banned By EA For His Troubles [UPDATED]

Tim Cushing — Tue, 29 Jan 2013 07:33:13 PST

UPDATE:

According to EA's representatives, this ban was the unfortunate result of a gitch in their system which banned several members who had opted out of receiving email from EA. Full response posted below:

Hi Puppier,

I made a post in reply on both imgur and your reddit post, but I just wanted you to know that we've lifted your ban on AHQ. As you know, the system is sending out a lot of emails and it looks like you opted out of receiving mails from us, which for some reason is banning users. There's a few posts on it, for example here http://answers.ea.com/t5/Technical-Problems/Problem-with-Answer-HQ-banned-because-I-tried-to-stop-getting/m-p/419214/highlight/true#M1430. It's not the biggest thread, but it's the first I could get to.

The team is working to fix the bug, but in the interim I actually have one member sitting scanning our logs for anyone that opts out, so we can unban them as quickly as possible.

Apologies again - as you mentioned. There's a lot of similar feedback to yours that hasn't been removed from the forums and the authors banned.

Feel free to give me a shout with any other feedback you have. I'll personally make sure it gets to the right people to make up for the annoyance.

Cheers,
Chris.

Electronic Arts makes some very popular games and some very respected games, but for the past few years, it's been finding itself at the top of Consumerist's annual "Worst Company in America" list. And for good reason.

A few weeks back, we discussed EA's upcoming SimCity game, which is going to be crippled by an always-on DRM scheme masquerading as online multiplayer. Some unsuspecting SimCity developers fired up an AMA (Ask Me Anything), only to find themselves trying in vain to defend a system that maintains your save state online, rather than locally. In addition to "stopping" piracy, this "feature" helps "extend gameplay" by forcing you to redo your moves should sunspots or whatever occur. The Redditors, needless to say, ate them alive and sent their remains back with a message for their bosses: drop the DRM or you won't be seeing our money.

EA, of course, cares not for little things like angry potential customers or, for that matter, being a company people trust and respect. For every step forward, it has taken giant leaps backwards. Just recently, it held a closed beta to do some last-minute bug testing on the new SimCity. All well and good, except that it threatened to ban users from all EA games should they fail to report a bug.

“It is understood and agreed that, as part of your participation in the Beta Program, it is your responsibility to report all known bugs, abuse of ‘bugs’, ‘undocumented features’ or other defects and problems related to the Game and Beta Software to EA as soon as they are found (‘Bugs’). If you know about a Bug or have heard about a Bug and fail to report the Bug to EA, we reserve the right to treat you no differently from someone who abuses the Bug. You acknowledge that EA reserve the right to lock anyone caught abusing a Bug out of all EA products.”

This went over about as well as any banhammer reliant on proving a negative -- the uproar began moments thereafter, leading EA to walk back this threat within 24 hours. EA released this incredulous, self-serving statement that basically said it was shocked (shocked!) that anyone would suggest it would perma-ban its potential customers.

“We have never taken away access to a player’s games for not reporting a bug, and quite simply it’s not something we would ever do… The clause in the EA Beta Agreement for the SimCity beta was intended to prohibit players from using known exploits to their advantage. However, the language as included is too broad. We are now updating the Beta Agreement to remove this point.”

Uh-huh. Nothing you would ever do now that you've been caught.

But EA's not done wielding the banhammer, as one Redditor attempting to login to the beta discovered over the weekend. After waiting over three hours for the software to authenticate, he posted a very valid, very tame and very constructive bit of criticism to their forums. (Original post via Google cache here.)

Back during the Steam Summer Sale, Ubisoft's always-online DRM servers encounter countless errors the inhibited people from playing the game (Story). This is one of several issues game publishers have suffered after having always-online DRM (other than the general player irritation). Although it is annoying that we have to have multiplayer and be online for a single-player game, technical issues also arise, because servers will, inevitably go down at some point.

Frankly, I wouldn't mind being always online if it weren't for all the technical complications, I have purchased the game and as long as I can play it, I'm good. But that is not the case. Instead we wait through countless errors and server delays in order to play the game. If these kind of issues exist during a closed beta, imagine the delays during the actual launch and the days after. Blizzard suffered the same fate after the launch of a Diablo 3 patch (Story).

The repercussions of this? Bad ratings. Although Diablo 3 received generally favorable critic scores, the players rated it at only 3.8/10 (Source). Although you will of course, have buyers, there is always someone dedicated enough to play a game, no matter the costs, bad ratings will turn away even the most dedicated players. And if the issues seen in the closed Beta servers (I've been waiting 45 minutes to log in already and others have been waiting much longer) remain during the official launch, the ratings will undoubtedly suffer. Although I have always been a huge SimCity fan, I am beginning to question whether I will buy this game, and as a result these ratings will decide whether myself and many others will spend our money on SimCity.

As I said, I would be able to tolerate SimCity's always-online DRM if it worked. But from the way it looks right now, it doesn't. If you are not willing to pour enough money into getting large amounts of log in and authentication servers, please remove the always online or add a way for us to play offline in only-offline cities. Other wise, you will turn away large groups of buyers and also large amounts of money.

Although you are trying to prevent piracy, which is something I am firmly am against (piracy), you have caught normal and legal players in the crossfire. The easiest (and best) way to prevent piracy is make a better game. If you make the game accessible and easier to play, you will attract more people into purchasing it. If you don't, you will turn away players and give people "reasons" to pirate your games. I am willing to spend money on SimCity if it is good, many others feel the same way. Don't ruin our dedication by putting us in the crossfire of your "war on piracy".

If you get your authentications servers not simply adequate, but also above and beyond what is necessary, more and more players will buy and enjoy your game. However you must also weigh the benefits. Even if you make a small amount of extra money by instituting an always-online policy, you will have to keep spending money to keep these authentication servers up. This may, in the long run, negate the amount of money you gained from the policy. So make sure you are ready to have servers and keep servers, otherwise you will be in for a lot of trouble.

Thank you,
Puppier

To most people, this would seem like a valid complaint that makes several good points. One, sacrificing your customer base on the altar of piracy prevention seldom makes sense, especially considering the pirated version will be free of all the issues plaguing the paying players. Two, if you can't balance server loads on a closed beta, how on earth are you planning to handle launch day? Considering SimCity will be online only, you'd think EA would have its server issues at a minimum. Paying customers aren't going to be very happy with a $50-60 piece of software that does nothing more than attempt to authenticate for hours on end. All in all, a thoughtful post that highlights what exactly is wrong with the DRM EA has built into the software.

Here's EA's reply. No email. No answer in the forums. Just this.

(In case you can't read the fine print, it says "We're sorry, but you have been banned from using this site.")

If EA's wondering how it could have outmaneuvered Bank of America in a race to the bottom, reputation-wise, it needs look no further than this. When an entertainment company is chosen by 64% of 250,000 voters as being worse than an entity that doubled its customers' interest rates for no apparent reason and allegedly cost taxpayers more than $1 billion when it sold toxic mortgages to Fannie Mae and Freddie Mac, there's a serious flaw in that company's relationship with its customers.

Callous actions like this only serve to further cement EA's reputation as one of the worst companies in America. Legitimate complaints should never result in banning. Even if EA isn't interested in hearing the downside of its "always-on" DRM, it should at least have the broad shoulders to take the criticism without behaving like thin-skinned thug.

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CNET: You Can't Trust Our Reviews, But You Can Trust Our News! Honestly!

Mike Masnick — Fri, 25 Jan 2013 13:26:00 PST

The fallout from CBS's ridiculously short-sighted interference with CNET's editorial process, concerning staffers awarding Dish's new DVR "best of show" at CES, continues to cause problems. Whle one of CNET's best reporters quit in protest, and Dish has turned the whole thing into a marketing opportunity, now any news article about any company that CBS is in a legal fight with has become suspect.

Note this recent article about the updated Aereo app. While it kicks off by saying that Aereo "just became a much more potent alternative to traditional cable TV" stuck right smack in the middle of the article is a big "disclosure":

Disclosure: CBS, the parent corporation of CNET, is currently in active litigation with Aereo as to the legality of its service. As a result of that conflict of interest, CNET cannot review that service going forward.

In other words, "HEY EVERY BODY, YOU CAN'T TRUST US TO REPORT FAIRLY ON THIS BECAUSE OUR CORPORATE OVERLORDS INTERFERE WITH EDITORIAL!" The whole thing is a joke. As Rob Pegoraro correctly noted, CNET's claims that "news" reporting won't be impacted because these bans just apply to "reviews" is simply wrong, wrong, wrong.

To say that there’s “actual news” and then reviews devoid of news value shows a basic misunderstanding of how journalism works.

Hard-news stories (like search-engine results!) are never entirely objective; people made value judgments in assigning them, choosing sources to quote, and giving those pieces their spot on the page or in the paper. Reviews are never entirely subjective and ought to cite objective defects such as slow performance, poor battery life, privacy risks or missing features.

And in the evolving and sometimes fumbling tech industry, assessing the hardware, software and services it serves up is an especially important part of the work of journalism. We need to suffer through these products ourselves–unless you’d prefer that we waited to see you find their problems, then reported the controversy.

Readers, in turn, don’t view news and reviews as distinct entities. If they start seeing one part of a site’s work subject to a corporate overlord’s remote control, they will read everything there skeptically. If they stick around at all.

Indeed. All that disclaimer does is remind people that CNET's coverage of any such topic is not to be trusted at all.

Update: And... things are apparently going downhill. According to reports and internal notes, reporters at CNET are pissed off and morale is falling. There was a meeting where some believed CBS was going to go back on its position, but the company did not. Reporters have been pushing back, but to no avail. The Romenesko link here includes an email from CNET reporter Declan McCullagh ticking off example after example of publications associated with other companies suing Aereo giving perfectly normal reviews of the product:

The Wall Street Journal’s Katie Boehret (who reviews products along with Walt Mossberg, as I’m sure you know) reviewed Aereo three months after the litigation began. Boehret concluded: “It has a thoughtful, clean user interface that works well on the iPad, where I tested it most.. If you’re a fan of TV and want a better way to watch it on the go, Aereo is a pleasure.” The WSJ is owned by News Corp., which is in active litigation with Aereo.

ABCNews.com published a review of Aereo this month. It said: “I’ve been trying out Aereo since September to record and watch all sorts of programs on Aereo — both highbrow shows such as ‘Downton Abbey’ and guilty-pleasure ones such as ‘Revenge…’ It makes cutting cable service tempting.” ABC News is owned by Walt Disney, which is in active litigation with Aereo.

The Chicago Tribune published a syndicated review of streaming services including Aereo, which said “the most exciting development might be a scrappy start-up called Aereo that lets you watch TV on any Web-connected device with a screen via a network of miniaturized antennas.” The newspaper is owned by the Tribune Company, which is in active litigation with Aereo.

It’s true that CBS has the right to set the editorial policies that CNET journalists must abide by. And it’s also true that this policy is prominently disclosed to our readers. But I’m not aware of other media companies that have enacted a similar policy.

This has the makings of quite the business school and journalism school case study...

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CBS's Censorship Of CNET May Undermine A Different CBS Lawsuit

Mike Masnick — Tue, 15 Jan 2013 06:46:44 PST

Last week, after the news came out that CBS had censored its subsidiary CNET, barring reporters there from reviewing Dish products (or any product of any company in litigation with CBS) or from awarding them the "best of CES" award that CNET reporters had already voted on, we wrote a post pointing out how this was dumb for a variety of reasons, mainly focused on the harm it did to CNET's credibility. Indeed, as noted, one of CNET's star reporters, Greg Sandoval, has already resigned. However, it turns out that it may have been even more stupid than originally suspected. In fact, it may undermine another important lawsuit filed by CBS.

We've written in the past a few times about Alki David's crusade against CBS, in which he sued the company, pushing a conspiracy theory about how CBS only went after his company FilmOn (the name of which was later changed, for pure publicity reasons, to AereoKiller) because it wanted to be the only one to profit from infringement. The argument was that because CNET was owned by CBS, and because CNET site Download.com had offered up software like Limewire, combined with CNET reviewers reviewing Limewire, it meant that CBS itself was guilty of infringement.

This was a silly legal theory, built more out of spite to annoy CBS. Unfortunately, since it was first brought up, we've seen many people passing it along (especially one particular YouTube video that calls out this "conspiracy theory" as fact, without any basis). However, knowing how independent CNET was from CBS, it always seemed like a particularly silly accusation, and the first version of the lawsuit didn't go very far, though a refiled version has done slightly better.

However, now that CBS has decided to rush headlong through that wall of editorial independence it may have totally undermined its own case. That's because, in responding to the case, CBS, in part, made the argument that a finding against it might chill free speech by encroaching on the editorial independence of CNET.

Except... in making this latest move, CBS is now making the argument that it has no problem butting in on CNET's editorial independence (or any CBS Interactive property), which may take away a key argument it has against secondary liability for any articles about infringement. Knowing the way Alki David has acted in the past, I'd be surprised if he didn't rush to use this in the ongoing case.

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Virginia Supreme Court Says Court Was Wrong To Force Woman To Change Yelp Review

Mike Masnick — Wed, 2 Jan 2013 16:30:00 PST

We've seen a bunch of stories over the years about local businesses upset about critical online reviews on sites like Yelp and Angie's List. Sometimes these business owners go to court, but rarely get very far. However, in a hearing last month, a court in Virginia issued a preliminary injunction, telling Jane Perez that she needed to make two changes to reviews she posted on those two sites of DC contractor Christopher Dietz. Dietz had sued Perez for $750,000 over the negative reviews, and arguing that Yelp and Angie's List should be held responsible as well, despite their clear protections under Section 230.

The preliminary injunction made her change some claims about possible "stolen" jewelry as well as her characterization of a small claims lawsuit that Dietz had filed against her for non-payment (that case was dismissed due to procedural failures, though she described it as a win for her on summary judgment), but did allow the rest of the posts to remain. This was a partial victory for Perez, since Dietz wanted the entire posts removed, but it still raised some significant questions. Public Citizen and the ACLU asked the court to review, noting that this was classic prior restraint:

Thus, even in jurisdictions that allow an injunction against the repetition of a libel that has been found false and defamatory after a full trial, or in which that issue remains open, injunctions may not issue against speech that has not been finally determined to be false and defamatory. For this reason, courts have rejected attempts to obtain preliminary injunctive relief against Internet speech.

Basically, a court cannot issue an injunction on speech that might be defamatory. It needs to wait until it's actually been proven to be defamatory. As the filing notes, in this case, the court didn't even find that Dietz had shown a "likelihood of success" let alone determined that the statements were defamatory.

Thankfully, the Virginia Supreme Court quickly recognized the error and has vacated the injunction allowing the original text to stay in place while any lawsuit continues:

Upon further consideration whereof, the Court also finds that the preliminary injunction was not justified and that the respondents have an adequate remedy at law.

Good news for free speech, though it's unfortunate that the lower court didn't get it right the first time. Of course, as always, this kind of thing makes you wonder what good it could have possibly done Dietz to file this lawsuit. Whether or not the original allegations were true, now he's made it clear that he's willing to sue over reviews as well. It seems like most people might see that and decide to hire a contractor who not only has good reviews, but doesn't have a history of suing his customers over their online reviews.

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Latest Company To Discover The Streisand Effect: Casey Movers

Mike Masnick — Thu, 15 Nov 2012 13:48:19 PST

Earlier this year, I was at a conference where there was an entire presentation on The Streisand Effect. Considering I first came up with the term and have chronicled it over the years (and had already been asked to speak on a different topic at the conference), I offered to help out with that session -- and got back no response. I went to the session to watch, and it was a really fun session, which didn't need any help from me at all. It was done by Conrad Saam, who works for Urban Spoon (and previously Avvo) and had a ton of great examples of the Streisand Effect and the impact on online reputation management. One element of online reputation management that he'd discussed, which I hadn't paid as much attention to, was the basics on how to deal with online reviews -- with a specific focus on Yelp. There were some dos and donts... and two key things not to do were (1) threaten people who write negative reviews and (2) post fake positive reviews.

Phil Buckley has a story of a Massachusetts-based moving company, called Casey Movers, which appears to have violated both of those rules, starting with a legal threat to Buckley's wife concerning a negative review she had written about Casey Movers 18 months ago, after her parents had a very bad experience with the company. It first took the company over a year to even notice the review and then post a weak defense of its practices. It didn't respond to any of the specific complaints about unprofessional behavior or broken promises. It only focused on the amount that the company had been willing to pay for damages, and gave a somewhat "technical" response about how this was what the "insurance option" she chose provided -- and even could be read as scolding her for not choosing the more expensive insurance option.

And yet... five months later (18 months after the original complaint went up), the same guy who wrote that bizarre defense sends a threat letter saying that the company is prepared to sue for libel if the review isn't removed: Of course, rather than having the intended effect, it just made Buckley furious (and quite reasonably so). Buckley had no interest in removing the review, but rather than just telling Casey Movers to pound sand, he started investigating. He found a variety of other negative reviews... but also a large number of reviews that had significant circumstantial evidence that the company was likely posting fake positive reviews (or had hired a company to do so). It's fun to watch the investigation progress, so it's worth reading the whole thing, but here's a snippet:

Someone decided enough was enough and decided to get some good reviews at CitySearch where they now have a majority of good reviews, except there’s a problem, they’re not real reviews. You may ask how I can say that with so much confidence? Go look at them yourself, one after another… notice how most names are generic or don’t have a human photo? Yes that’s level 1 of suspicious reviews. Start looking at the reviews the “people” have left. It’s quite a coincidence that so many people who have used a Boston moving company have also loved a sprinkler repair guy in Anaheim, California and Fun Hawaii Travel out of Honolulu.

They also have a flurry of activity in August of 2012 – Aug 1, 2, 6, 7, 9, 11, 12, 14. That seems a bit sketchy as well.

His investigation also turned up that the company had been posting images of positive review letters that some customers had signed, but in doing so, revealed all their private info. Buckley contacted a few who seemed surprised and said that they had not provided permission to reveal their private info.

For a while, Casey Movers and the main representative of the company involved in all of this, Matthew Overstreet, basically ignored Buckley. But as his story kept getting more attention, Overstreet finally reached out to Buckley -- and again just kept focusing on the "insurance coverage," a relatively minor issue (made even more minor following the ridiculous threat of a libel lawsuit). Eventually, Overstreet called Buckley on Wednesday night and seemed to indicate that there wasn't any interest in actually suing, though he refused to promise not to sue Buckley's wife.

Either way, the whole story is yet another fun one to include in the long list of companies who get on the wrong side of the Streisand Effect. Going beyond that, it really shows how a bogus legal threat can lead to not just backlash and attention, but also much deeper investigations into whoever originated the threat -- and that might turn up other questionable activity, such as posting likely fake positive reviews to try to counter the real negative reviews. Oops.

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UK Newspaper Licencing Agency Says Musicians Need To Pay To Quote Reviews

Mike Masnick — Mon, 12 Nov 2012 10:35:03 PST

I wonder how copyright maximalist musicians feel about this particular story. Techdirt reader glassneedles alerts us to an offline (!?!) news article in the publication Private Eye, about how the UK's Newspaper Licensing Agency (NLA) has declared that musicians who quote positive reviews from newspapers need to pay £1,250 per year (which would allow them to quote up to 50 reviews). Seriously. Apparently, the NLA went around to various music agents and managers a while ago, and they (quite reasonably) ignored the threats. That just made the NLA mad.

... the phoney war has turned into a real one, with the NLA chasing agents, threatening legal action and demanding not just license payments for future quotes but also retrospective payments for past ones.

The amounts are crazily excessive for the modest, shoestring operations that most classical music management and PR companies tend to be, with £7,000-£8,000 a typical demand.

For folks who help market a number of musicians, the NLA claims are apparently adding up to being fairly serious.

The most outrageous example... concerns a small PR company called ElevenTenths, which is effectively one woman, Claire Willis, working form a spare bedroom.... Poor Ms. Willis was collared by the NLA a few months ago, required to fill in forms about her clients and activities, and then received a bill for £23,500.

Willis complained and apparently the NLA "backed down" and offered a deal for "only" £1,588.45. In the past, we had written about the NLA winning a lawsuit against news aggregators, so perhaps it's now turned to those who quote its reviews as a new, highly questionable, revenue stream.

I wonder if folks in the UK are regretting the decision, in the Hargreaves report, that the UK doesn't need an explicit fair use rule.

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Amazon Freaks Out About Sock Puppet Reviews And Deletes A Bunch Of Real Reviews

Zachary Knight — Fri, 2 Nov 2012 10:44:38 PDT

For a while now, there has been a bit of a kerfuffle at Amazon over so called "sock puppet reviews" or reviews purchased by an author to help pad their books' rankings. We hadn't been covering any of it because, frankly, it was a non-story. There never was a threat to the publishing industry and it was always questionable how widespread the problem really was. Additionally, the idea that a writer would have to pay to get reviews was just a sign that those writers held no real confidence in their work.

Unfortunately, Amazon took these complaints a little too seriously. It would seem that those complaining were loud enough that Amazon heard them and did a couple of things to tackle the non-issue. First it revised its rules for review writing. to make such purchased reviews against the rules. Then it removed a bunch of reviews seemingly at random. Joe Konrath shares his experience upon reading about this:

I've been buried in a book deadline for all of October, and haven't been paying much attention to anything else. When I finally took some time to catch up reading email, I noticed I had many authors (more than twenty) contacting me because their Amazon reviews were disappearing. Some were the ones they wrote. Some were for their books. One author told me that reviews her fans had written--fans that were completely unknown to her--had been deleted.

I took a look at the reviews I'd written, and saw more than fifty of them had been removed, namely reviews I did of my peers. I don't read reviews people give me, but I do keep track of numbers and averages, and I've also lost a fair amount of reviews.

Why did Amazon go nuts deleting reviews? Well, Konrath assumes, based on his responses from Amazon, that this was the result of a new automated sock puppet detection program. Apparently, it works in much the same way as Google's ContentID: flag anything and everything and see what sticks. Actually, no. This is way worse than ContentID. At least ContentID has some kind of -- admittedly weak -- notification, human review and appeals process. That is entirely absent from Amazon's deletion program, as Konrath explains in his letter to Amazon.

My reviews followed all of Amazon's guidelines, and had received hundreds of helpful votes. They informed customers, and they helped sell books. They represented a significant time investment on my part, and they were honest and accurate and fully disclosed my relationships with the author I reviewed if I happened to know them. And these reviews were deleted without warning or explanation.

Next, in his letter, he explains just why Amazon's actions were the wrong thing to do. Primarily because this action harmed more authors than sock puppet reviews ever did.

Obviously Amazon can do whatever it wants to on its site. It isn't up to me to dictate policy. It's your company, your rules, and I fully respect that. But I believe Jeff Bezos is very much about treating customers fairly, and I've heard it said many times that Amazon considers its authors to be valuable customers. So you should know that I'm just one of dozens of authors who are saddened by this, and those are just the ones who have emailed me.

The community you're trying hard to nurture is upset by your actions. They feel those actions are unwarranted and harmful.

Please express our disappointment in Amazon to anyone who needs hear it, and let them know I'll be blogging about it. People are seriously disappointed in how Amazon handled this. It was a knee-jerk, inappropriate reaction to a ridiculous case of unjustified moral panic, and a Big Fail.

Admittedly, this act by Amazon was in response to a number of authors who complained about the problem. However, as I wrote above, it was a problem of egos, not actual harm to any specific authors or group of authors -- or as Konrath put it, an unjustified moral panic. Authors freaked out over news stories of people being paid to write reviews and it ballooned from there. And just like every other moral panic before it, this one did tons of unnecessary collateral damage.

So not only do a bunch of legitimate reviews just up and disappear, there is also further damage to Amazon and the authors it works with. Readers will be less likely to write thoughtful and meaningful reviews in the future. If your review that you spent an hour writing could just up and disappear, why bother? Is this really what Amazon and these authors want -- people less willing to review books they read? That would seem to be a far worse situation than an unconfirmed number of sock puppet reviews.

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Manufacturer Of Buggy 'Kobo Touch' E-Reader Manages Customer Complaints By... Hiding All Online Reviews

Tim Cushing — Thu, 26 Jul 2012 16:28:00 PDT

Quick quiz on crisis management, internet-style:

Exercise 1: The product you've just introduced is a buggy mess, short on content and backed with terrible customer service. What do you do?

a.) Bite the bullet and start handing out refunds
b.) Start patching like hell and fire your current Customer Service team
c.) Drain all bank accounts and reorganize under the name Net Sortie, LLC.
d.) Whistle nonchalantly while sweeping bad reviews under the rug

If you answered "d," then congratulations! You've lost the battle and the war!

No matter how many companies line up to play the "I'd Like to Lose at the Internet" game and walk away empty shells of their former selves, there's always another player ready to step up and take a swing at wishing its problems into the Google Cache cornfield.

This week's contender is Rakuten and its Kobo Touch Reader. Billed as sort of a preemptive strike against the expected arrival of Amazon's Kindle in Japan, the Kobo began shipping last week. That's the last of the good news.

Rakuten launched the Kobo Touch in Japan with the expectation that they would dominate their home market. They are native to the country, and Rakuten does have a sizable retail presence there. Given their technical and CS resources, you’d think they would have been able to pull this off.

Unfortunately, it now looks like Rakuten has paved the way for Amazon to dominate yet another ebook market.This launch is rapidly turning into a debacle and it’s going to damage Rakuten’s reputation. And according to some of the tweets I’ve seen (in Japanese) it already is.

So, what went wrong? Well, many, many things. First off, while the firmware was solid, the desktop software was a disaster. If installation failed on the PC, a rather common situation according to the reviews, it pretty much made the Kobo Reader useless. Secondly, Rakuten's promotional work pointed towards 30,000 titles being available at launch. Instead, there were 18,894 titles and, as is pointed out in the comments, many of those were public domain. Last, but not least, purchasers now holding a shiny brick were treated badly by Rakuten's customer service.

Rakuten was understandably perturbed by this failed launch and decided the best course of action would be to pretend it just wasn't happening.

It’s been just under a week since the Kobo Touch started shipping in Japan, and things are going so well that Rakuten has removed from their website all the reviews of the Kobo Touch.

No, seriously, all of the reviews are down – both good and bad. I suppose there were too many people writing things like “I’m going to buy a Kindle” and that upset someone at Rakuten.

For a tech company, you'd think Rakuten would be a bit more familiar with how this "The Internet" works. You can't just pull the electronic wool over everyone's eyes and hope to sneak away undetected. The Internet never forgets. And even if it could, there's always a helpful person or two willing to remind it where all that stuff is stashed.

Luckily one of Rakuten’s potential customers tipped me to the story, including giving me a link to a blog that had collected responses and a screenshot of the review page before Raskuten removed it. That’s why I can show you things like this:

If you can’t see the image above, it says that the Kobo Touch has a 3 star rating largely due to the vast number of 1 star reviews.

And more help arrives:

Update: My source found a Google Cache page of reviews. Thanks, Bibo!

This response is so wrong and yet so common. Donna Barstow, law schools, the freakin' medical community. Pretty much anyone who's ever heard the term Streisand Effect whispered in their general direction has attempted to delete damning content, either of their own or created by others, only to find it resurrected in Google's Cache or the Internet Archive's Wayback Machine. It's definitely a knee-jerk response, but it seems to have a steep learning curve attached to it. Kobo screwed up and then doubled down by hiding the reviews. What does that say about the company and its future relationship with its customers?

Folks, they took the reviews down from the website so new customers wouldn’t be warned about the many problems. I want you to look past the fact they did it and think about how customers will feel once they discover the deception. That is what will make this a major debacle and not merely an embarrassment for Rakuten.

A bad launch could be recovered from. This is closer to being a systematic effort to lie to their customers. Okay, eventually people will forgive Rakuten, but in the short run this debacle could drive readers to Amazon.

Rakuten, by botching its launch, hurt itself a little. By covering it up, it did a ton of self-inflicted damage. You can't just flip "trust" on and off like a light switch. It's earned. And if it wanted to take on Amazon, it couldn't afford a mistake of this magnitude.

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Gym Allegedly Threatens To Call Police On Blogger For Blogging That Its Prices Were A Bit High

Mike Masnick — Thu, 21 Jun 2012 14:14:00 PDT

Every time you think that there have been enough examples of the Streisand Effect that it should stop people from trying to censor perfectly legitimate content, you're just setting yourself up to be surprised by the next such attempt -- often more bizarre than the previous one. The latest one comes to us via the Consumerist, and it involves the story of a new gym in Cleveland, called BarreCleveland, that has apparently threatened to call the police on a blogger because she though the price was a bit steep. But the really odd thing? The original post was generally positive. We're used to seeing people flip out about people saying negative things about them, but a mostly positive review? Now that's something special.

Alana Munro's original blog post did discuss the fact that she thought the price was too high, and that she normally likes a workout that generates more of a sweat, but on the whole it doesn't seem that negative at all. She noted that if it was a little closer to where she lived (and the prices were lower) she'd likely go back. However, somewhere along the way that got interpreted as being a dig by someone who ran the place, and they first got into a bit of a Facebook and Twitter argument with Alana and some others.

And then.... someone with the same last name as the owner posted a comment on the original blog post, accusing Alana of "stealing" the class she attended:

Just stop the posting about Barre Cleveland and take down all the existing posts. We know that you stole the class and we can pursue legal action against you for that and that is why it is ridiculous that you complain about a price when you never paid for the class. You were never given a discount code by Barre Cleveland and somehow you used that to enter the studio. I am sending you this message to politely ask that you remove all the content about Barre Cleveland from your blog and twitter and we will not get the Beachwood Police involved on this theft of services.

Alana says she did use a discount code -- it was one that was being passed around widely to help promote the gym in the first place. Now the gym may argue that it only meant the code to be used by people it gave it too, but then it should have implemented one-time codes. Instead, the code worked, and Alana has a nice receipt posted to her blog "thanking" her for signing up. Her complaint wasn't that she paid too much for that one class, but that the general price might be too much for her to keep going back.

Either way, the whole thing has blown up and received lots of attention. BarreCleveland has scrubbed the back-and-forth tweets from its Twitter feed. But it certainly looks like it already went way too far. Engaging with people who criticize you online is one thing -- and can be quite useful. Threatening to call the police on them and demanding they erase what they've written about you is going way too far, and the internet (hello Streisand Effect) doesn't take kindly to such things.

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Real Estate Firms Slipping 'Non-Disparagement' Clauses Into Rental Agreements To Stifle Online Criticism

Mike Masnick — Mon, 23 Apr 2012 16:25:00 PDT

Rob Hyndman points us to travel guide guru Arthur Frommer speaking out about a ridiculous trend from some real estate firms that do vacation rentals: slipping a non-disparagement clause into contracts that effectively forbid you from writing a bad review about them online. Frommer's discussion is built off of an article Christopher Elliott wrote for the Washington Post, highlighting the trend:

But don’t go looking for the Dorows’ opinion on the Web. Within a few days of posting it, they received a letter from their vacation rental agency.

“It has come to our attention that you have written an unauthorized review regarding your stay at a home managed by Progressive Management Concepts,” it said. “If this review is published by VRBO.com, you will be in violation of the confidentiality clause of the rental contract you agreed to when you made your reservation.”

When the Dorows refused to remove the review from VRBO.com, the site through which they’d found the rental, Progressive Management promptly charged $500 to their credit card.

If this kind of thing sounds familiar, you may be remembering how some doctors and dentists have done similar things (though using an even more nefarious method of demanding assignment of the copyright on any such review).

Frommer, reasonably, finds this behavior deplorable, and notes that this is only likely to expand to lots of other things that get reviewed online, such as hotel stays. As he notes, since properties like this already have your credit card on file, it's a real risk that they can then just try to "charge" you for writing a bad review. Frommer also disputes the arguments of those in favor of such clauses by noting their argument is basically that they don't like free speech:

Now the various people who defend these clauses, base their arguments on all sorts of horrid, potential and hypothetical threats. They claim there are a lot of people who, upon checking out, threaten the rental property with a negative review unless they are given a retroactive discount on the rental. They claim, in effect, that vacation renters are blackmailing them.

In my view, simply to state that argument is to refute it. You could justify a great many denials of our First Amendment rights of free speech with scary hypotheticals like that.

Of course, the best response to something like this is to recognize that if you put such a clause into a contract, it means that you're hiding something, and aren't confident enough in the quality of your property that you can handle criticism. It should be an automatic disqualifier for a renter. Unfortunately, though, as the article notes, sometimes you don't even get to see the terms until after you agree. While I'd argue that makes such terms unenforceable, it does make things more complicated. At the very least, though, it should allow people to post a review that merely notes the fact that such a clause is in the contract, and how that suggests no confidence in the quality of the property...

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Dentist Who 'Invoiced' Patient For Negative Reviews, Getting Slammed On Yelp

Mike Masnick — Fri, 2 Dec 2011 06:21:39 PST

You may recall that, yesterday, we wrote about the class action lawsuit filed against dentist Stacy Makhnevich. Makhnevich used ethically and legally dubious forms from the organization Medical Justice, to demand the future copyrights on any reviews a patient might write about her. Then, she used the DMCA process to try to take down negative reviews on Yelp and DoctorBase. When that didn't work, she threatened the patient, Robert Lee, with a lawsuit, and started sending him invoices for infringement, at $100/day. None of this addressed Lee's original complaint -- that Makhnevich failed to submit the documents he needed to get reimbursed from his insurance company for an expensive procedure.

Of course, as with any typical Streisand Effect situation, all this ended up doing is leading to a hell of a lot more attention to the situation and the negative comments. But, these days, things can go even further than just driving more attention to content someone wanted disappeared. It can lead to even further backlash -- especially on sites involving reviews -- as we've seen with authors who get dinged for questionable actions. If you go take a look at Yelp's page for Stacy Makhnevich the one star reviews are flowing in... many of them calling her out for what she did. Oh, and Robert Lee's review, which kicked this whole mess off... is Yelp's "featured" review at the top of the page. Her current total review rating is at a star and a half. It used to be much, much better. Some of the reviews are entertaining. I liked this one, which notes "I heard you have to bring your lawyer with you to the dentist's office." For future reference, if you're that concerned with your online reviews, perhaps just do the best you can and respond to customer complaints promptly. Trying to whitewash complaints seems likely to backfire in big, bad way.

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Dentist Forced Patient To Sign Away Future Copyright On Any Online Review; Then Billed Him $100/Day For Negative Reviews

Mike Masnick — Thu, 1 Dec 2011 08:39:44 PST

We've talked about Medical Justice a few times. This is the highly questionable outfit that gives doctors and dentists forms that these medical professionals then require patients to sign in order to get treated. The forms require the patients to pre-emptively hand over the copyright on any future reviews they might write about that medical professional. The idea is that if the doctor or dentist doesn't like the review, they can then just use the DMCA to take it down, claiming that the review infringes on their copyright. Yes, this is incredibly sleazy. This clearly has nothing to do with copyright, but rather it's a use of copyright law to try to censor criticism. There are both ethical and legal problems with this... and the legal problems are about to be discussed in court.

Public Citizen has filed a class action lawsuit against a New York dentist, Stacy Makhnevich, who not only used the Medical Justice forms, but then sent one of her patients invoices, supposedly billing him $100 per day for having posted comments about her online. As Paul Alan Levy explains:

Our individual client, Robert Lee, had a bad experience, not with Makhnevich’s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance. After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase. Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal. Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement. Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.

A few interesting things come out in the lawsuit. First, the fact that both Yelp and DoctorBase defied the DMCA takedowns. Both companies deserve kudos for that. Standing up to bogus DMCA takedowns is pretty rare these days, because the risk of getting roped into a costly lawsuit is just too high. In this case, the fact that there had been so much news about Medical Justice and it's questionable concept, and both Yelp and DoctorBase were aware of this earlier, certainly helped. Still, standing up to such threats deserves praise.

Second, the lawsuit notes that not only is this copyright abuse, but the DMCA takedown notices appear to violate HIPAA -- the federal Health Insurance Portability and Accountability Act -- which is supposed to guarantee privacy for patient info.

In September, 2011, on the letterhead of Aster Dental, a member of Dr. Makhnevich’s staff sent takedown letters under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3), to Yelp and to DoctorBase, asserting that Dr. Makhnevich owned the copyright in Lee’s Commentary pursuant to the Agreement. Defendants warned Yelp and DoctorBase that, if they did not remove the posts immediately, they would lose the immunity that the DMCA otherwise provides Internet Service Providers against monetary liability for copyright infringement. In violation of HIPAA, these takedown notices disclosed plaintiff’s height, weight and birth date, as well as his picture and his home address

The lawsuit also makes the claim that these comments, even if the copyright on them has been assigned, would still be protected as fair use. But, more importantly, it argues that these agreements in the first place constitute "copyright misuse" noting that the agreements:

constitute unclean hands and, with respect to such purported acquisition and assertion, constitute copyright misuse in light of the means by which defendants purportedly acquire the copyrights and because the purpose of such acquisition and assertion of copyright is to suppress truthful commentary concerning defendants and matters of public concern.

No matter what, this should be an interesting lawsuit to follow. As Levy explains, beyond the legal arguments, there is an important public policy aspect to this lawsuit:

The purpose of copyright law is to encourage creative expression by providing a temporary monopoly (sadly, less and less temporary) that enables those whose expression is marketable to reap financial rewards for their work. At the same time, copyright law avoids giving any monopoly on facts or ideas. Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted. The Medical Injustice agreements allow professionals who use them to suppress the underlying opinions and facts, not to reap financial rewards from the expression and not to encourage further creativity. This is a misuse of copyright law and in our view it needs to be stopped.

However, from a future policy perspective, it appears that this lawsuit has already been a win. Within a day of the lawsuit being filed, Medical Justice has announced that it's retiring the agreement... and that it probably should have earlier. It also claims that it's telling doctors to stop using them. We'll see if that actually happens... and if anyone else jumps into the fray instead.

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How Do You Promote A Bad DRM Scheme? With A Bad Movie Of Course

Zachary Knight — Tue, 22 Nov 2011 08:22:32 PST

Recently, we were talking about the horrible customer reviews that Warner's Ultraviolet DRM was getting. These customers were having such a hard time trying to justify the headache that came from complying with the requirements to watch their legally purchased movies. Warner seems to be trying to make the service worthwhile and is now bundling free digital movies with video games. If you buy Batman: Arkham City, you will also get a digital Batman movie for free. Which movie will you get? Batman Forever of course. Wait. What? If the goal of these promotions is to get people to start using the service, wouldn't you think they would try giving away a movie people would actually want to watch? As opposed to the worst Batman flick ever?

I guess the people running Warner just don't realize that customers want quality content. Sadly, when you are offering crap to customers there really isn't much you can do to polish it up. Maybe the next deal will actually be worth it. Most likely not though.

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Hollywood's Kinder, Gentler DRM: UltraViolet, Getting Slammed In Reviews

Mike Masnick — Wed, 26 Oct 2011 07:41:27 PDT

Remember UltraViolet? This was Hollywood's plan for a new, kinder, gentler DRM for movies that would try to provide some additional features. Or, rather, it would (oh so generously) grant you back just a few rights that anyone could get with an unauthorized version of a file... and you were supposed to thank them for this. As we noted at the time, what consumer problem does UltraViolet actually solve? The answer is absolutely none. It only attempts (and fails) to solve a perceived studio problem. Meaning that it was destined to piss off customers.

And that's exactly what's happening.

Jeff Malfant points us to an amusingly satirical Wired article, pretending to be from the studios' vantage point about UltraViolet:

UltraViolet will make purchasing a movie only slightly more of a pain in the ass than searching BitTorrent. Driving to a local video store and buying a copy on DVD or Blu-ray should only take about a half-hour more than downloading it, and I want to assure you that the legitimate copy will contain all the ads, auto-loading trailers and overproduced menu screens that even the pirates can’t figure out how to include.

Once you’ve bought it, all you’ll have to do is take the time to register it and give us whatever information we decide we need. We know pirates don’t have to do that, but we think you’ll find it fun. It’s sort of like Facebook, only instead of friends and family, you have a humongous powerful group of international corporations hanging on your every datum.

Once you’ve signed in, that’s when the fun begins. You see, the movies you paid for with your own money will be stored for you in your “locker.” Just like the lockers you use at school or the gym, they’ll be convenient, somewhat secure, they won’t actually belong to you and we can do anything we want with anything in them.

Let the pirates have their boring old “hard drives” and “networked media servers.” With UltraViolet, you’ve got a locker!

But even more telling, as sent in by Keith, are some of the user reviews popping up on Amazon that appear to totally slam UltraViolet as ridiculous and annoying:

This review does not relate to the movie, but it is focused on the ridiculous process to download the digital copy. After creating accounts for both Flixster and Ultraviolet, linking the accounts, enabling WB to view my personal information, the system hangs and doesn't download the movie. I contacted Ultraviolet first with the issues and error messages. After a day, I was told this is not an Ultraviolet issue, but a Flixster problem. I then contacted Flixster. They responded by sending me to the FAQ. To date, I have not gotten a proper response from Flixster on the error messages. I plan on canceling both accounts and will NEVER buy another DVD tied to Ultraviolet. This is a complete rip off and WB should be ashamed of this dreadful service. Please do yourself a favor and don't buy the movie with the digital copy. If you want a digital version, just got to iTunes.

And another:

First off I really liked the movie, if I was just rating the movie, it would probably be 3 1/2 stars, however, I have spent 4 days now trying to get this so called "digital copy". I knew what Ultraviolet was, and I thought it had promise to be used to stream to any device not locked to just one service (itunes), but it doesn't work. First off you have to sign into 4 different services to even get this stuff to maybe work, [...] some ultraviolet site and to "manage" your collection flixster collections...when in trying to link all of these useless accounts I can no longer access the movie to stream. So I am left with a product that does not work and customer service is a joke. I have been bounced around from site to site and from rep to rep who keep telling me to do the same thing over and over again, no matter how many times I tell them what has happened and what the issue is.

This flixster ultraviolet "suckloution" is the worst ever, you are better off ripping the DVD...

And another:

Warner Brothers has really pulled a fast one with this 3D edition that was supposed to include everything with this "UltraViolet" digital copy. It's NOT a digital copy, but rather an authorization to access a streaming video of the original cut of the movie online. This is NOT the package I pre-ordered! When I saw the commercials for the "UltraViolet" digital copy, I thought there would be some special feature-- I never dreamed that special feature would be WB promising me a digital copy that I couldn't use in iTunes EVEN THOUGH EVERY OTHER DIGITAL COPY OF A MOVIE DOES. The digital copy you do get (IF you can get the website to work!) has to be played on some kind of Adobe player THAT WILL NOT PLAY THE FILE. So you're stuck with their online streaming swill even though you were promised a digital copy.

And there are plenty more along those lines. When will the industry finally realize that DRM doesn't help anyone?

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How Confusion & Lack Of Clarity In Copyright Law Make Reviewing Poems Difficult

Mike Masnick — Mon, 12 Sep 2011 22:02:00 PDT

techinabox alerts us to a short NY Times piece by David Orr, in which he notes yet another problem with copyright law, in that publishers are afraid to publish reviews of poems that actually dare to quote the poem, because it might be considered copyright infringement. At issue is that it's not clear what would be considered fair use in quoting a poem -- especially a short one. There are different theories about what's okay, but those theories don't seem to fit well with certain poems. Orr gives an example of a one line poem, and notes that quoting just 5% (a standard some suggest) would mean quoting 2 letters. As Orr notes the whole thing is an "incomprehensible system," and most publishers won't touch anything that might be interpreted as infringing, because they just don't want the headache of a legal battle.

Of course, quoting for the purpose of reviews should be fair use. The US Copyright Office itself uses:

"quotation of excerpts in a review or criticism for purposes of illustration or comment;"

as an example of what qualifies for fair use. But, tragically, the "excerpts" part of that standard is unfortunately vague, and it limits what people can do.

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Can A Computer Pick Out Fake Online Reviews When Humans Can't?

Mike Masnick — Mon, 22 Aug 2011 15:46:00 PDT

It's no surprise that there are a ton of "fake" reviews online of just about anything that can be reviewed. Businesses, hotels, authors, musicians, etc., all want to make sure that whatever it is they're selling, people see good reviews when they go searching. But, of course, that's a problem for consumers who rely on such fake reviews... and on the sites who host such reviews and want them to be as accurate as possible. So it's fascinating to see that some researchers at Cornell (yes, my alma mater) were able to come up with an algorithmic way to figure out what reviews are fake. You can read the full paper here (pdf). It's only 11 pages.

The method was pretty clever. First, they used Mechanical Turk to create 400 faked 5-star reviews of Chicago hotels:

To solicit gold-standard deceptive opinion spam using AMT, we create a pool of 400 Human- Intelligence Tasks (HITs) and allocate them evenly across our 20 chosen hotels. To ensure that opinions are written by unique authors, we allow only a single submission per Turker. We also restrict our task to Turkers who are located in the United States, and who maintain an approval rating of at least 90%. Turkers are allowed a maximum of 30 minutes to work on the HIT, and are paid one US dollar for an accepted submission.

Each HIT presents the Turker with the name and website of a hotel. The HIT instructions ask the Turker to assume that they work for the hotel’s marketing department, and to pretend that their boss wants them to write a fake review (as if they were a customer) to be posted on a travel review website; additionally, the review needs to sound realistic and portray the hotel in a positive light. A disclaimer indicates that any submission found to be of insufficient quality (e.g., written for the wrong hotel, unintelligible, unreasonably short, plagiarized, etc.) will be rejected

Then, of course, they need "real" reviews. But since part of the issue is that many "real" reviews are faked, the team did their best to find a bunch of real reviews from TripAdvisor, by narrowing them down based on a few factors:

For truthful opinions, we mine all 6,977 reviews from the 20 most popular Chicago hotels on TripAdvisor. From these we eliminate:

3,130 non-5-star reviews;
41 non-English reviews;13
75 reviews with fewer than 150 characters since, by construction, deceptive opinions are at least 150 characters long...
1,607 reviews written by first-time authors— new users who have not previously posted an opinion on TripAdvisor—since these opinions are more likely to contain opinion spam, which would reduce the integrity of our truthful review data...
Finally, we balance the number of truthful and deceptive opinions by selecting 400 of the remaining 2,124 truthful reviews, such that the document lengths of the selected truthful reviews are similarly distributed to those of the deceptive reviews. Work by Serrano et al. (2009) suggests that a log-normal distribution is appropriate for modeling document lengths. Thus, for each of the 20 chosen hotels, we select 20 truthful reviews from a log-normal (left-truncated at 150 characters) distribution fit to the lengths of the deceptive reviews.

They then test how humans see the two kinds of reviews, and discover that they can't tell them apart. In fact, their accuracy was only slightly above 50%. However, they then work out algorithmic ways of distinguishing the "real" reviews from the fake reviews, and come up with a system that is 90% accurate in picking out which reviews are which. Apparently, while humans can't pick out the differences, faked reviews have some common characteristics:

We observe that truthful opinions tend to include more sensorial and concrete language than deceptive opinions; in particular, truthful opinions are more specific about spatial configurations (e.g., small, bathroom, on, location). This finding is also supported by recent work by Vrij et al. (2009) suggesting that liars have considerable difficultly encoding spatial information into their lies. Accordingly, we observe an increased focus in deceptive opinions on aspects external to the hotel being reviewed (e.g., husband, business, vacation)...

[....]

... we find increased first person singular to be among the largest indicators of deception, which we speculate is due to our deceivers attempting to enhance the credibility of their reviews by emphasizing their own presence in the review.

Obviously, it's just one bit of research, but apparently those involved in it have been contacted by... well, just about everyone doing online reviews. Hopefully this means that we're not too far off from better quality online reviews.

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Is Filing A Defamation Lawsuit Really The Best Way To Respond To A Potentially False Hotel Review?

Mike Masnick — Tue, 26 Jul 2011 08:19:43 PDT

I'm catching up on some slightly older stories and this one was submitted a few times, but I'm just getting around to it. It involves the Carleton Hotel in Oak Park, Illinois, suing a couple for defamation for posting an online review that claimed the hotel had bed bugs -- a big concern for hotels these days. The hotel denies that it has bed bugs. Actually, it goes further than that. It shows the report from the pest control company that came in and inspected the specific rooms that the family stayed in after hearing from them that they had discovered bed bugs in their house, and believed they came from the hotel. That report says: "Not a single bed bug, dead or alive, was observed. Additionally, no fecal, blood evidence was found." Additionally, the hotel notes that the couple its suing are well aware of this, because the hotel's manager sent them the pest control report the day after they contacted him... which was four days before they posted the review to TripAdvisor. In response, the husband told the manager via email: "I will do whatever I can through media outlets or publicity to say that your hotel is negligent in admittance of this bedbug issue."

From the info provided, and without hearing the response from the family, it certainly looks like the hotel has a decent case for defamation here. However, I'm still a bit troubled that it would go after the family, demanding $30,000 -- especially if the family truly believes (even in error) that it got bed bugs from the hotel. If anything, I'm less inclined to stay at a hotel that potentially sues its customers.

Now, of course, others will say, "but what else could be done" in situations where a false and potentially very damaging review is posted. It seems here's a situation where "more speech" should be the answer. The details laid out in the filing are very clear and quite convincing to me (again, not having heard the other side). I don't believe the hotel has bed bugs. So it seems like a better way to handle this would be to post that same info in response to the review, such that people can see that the review itself is not at all credible. Yet, in our legalistic society today, the first move always appears to be to sue. That's unfortunate.

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Julie Taymor Blames Twitter For Bad Reviews Of 'Spiderman: Turn Off The Dark'

Mike Masnick — Mon, 27 Jun 2011 04:43:33 PDT

If you haven't been following the massive disaster that is the Broadway production of Spider-Man: Turn Off the Dark, you've been missing a massive train wreck in slow motion. Julie Taymor, who was the original person behind the effort was fired in March and has finally spoken out about the scathing reviews the show has received all along (apparently, the only reason to go see the show is in the hopes of catching someone get injured). Apparently it's not her fault, the fault of any of the other writers, actors, musicians, etc. No, no. You see, it's all Twitter's fault. Apparently, with people writing bad reviews on Twitter, the producers overreacted:

Breaking her silence about “Spider-Man: Turn Off the Dark,” the Broadway musical from which she was fired in March, Julie Taymor tacitly criticized her former producers on Saturday afternoon for relying on audience focus groups and said that the rise of Twitter and blogs for instant theater criticism was damaging to shows...

“It’s very scary if people are going more towards that, to have audiences tell you how to make a show,” she said. “Shakespeare would have been appalled. Forget about it. It would be impossible to have these works come out because there’s always something that people don’t like.”

[...]

“Twitter and Facebook and blogging just trump you,” Ms. Taymor said during a moderated discussion at the annual meeting of the Theater Communications Group, an umbrella organization of regional and nonprofit theaters. “It’s very hard to create. It’s incredibly difficult to be under a shot glass and a microscope like that.”

Well, well. It turns out that not only is Taymor not very good at judging the quality of this particular play, but she seems rather ignorant on history as well. Clive Thompson reminds us that the audience in Shakespeare time didn't quietly type their opinion of the plays they were seeing into the internet, they spoke up about it immediately:

Shakespeare's audience was far more boisterous than are patrons of the theatre today. They were loud and hot-tempered and as interested in the happenings off stage as on. One of Shakespeare's contemporaries noted that "you will see such heaving and shoving, such itching and shouldering to sit by the women, such care for their garments that they be not trod on . . . such toying, such smiling, such winking, such manning them home ... that it is a right comedy to mark their behaviour" (Stephen Gosson, The School of Abuse, 1579). The nasty hecklers and gangs of riffraff would come from seedy parts in and around London like Tower-hill and Limehouse and Shakespeare made sure to point them out:
These are the youths that thunder at a playhouse,
and fight for bitten apples; that no audience, but
the Tribulation of Tower-hill, or the Limbs of
Limehouse, their dear brothers, are able to endure.
(Henry VIII, 5.4.65-8)

On top of that, Thompson also points out that even audiences for plays in New York City haven't always been so nice, pointing to the famed Astor Place riots that happened as anti-England sentiment in New York City at the time caused audience members to start "loudly voicing their disapproval with booing and hissing" during Shakespeare's plays, leading to the eventual riot:

The most brutal of these eruptions occurred as a result of two rival actors, each of whom was starring in a competing production of Shakespeare’s Macbeth. Celebrated American actor Edwin Forrest, who patriotically extolled the virtues of the American Dream of self-actualization, employed a performing style that was passionate and visceral. English actor William Charles Macready, on the other hand, had an elitist attitude, a poised stature, and an approach to acting that was more subtle and cerebral. When Macready and Forrest both presented the play on May 7, audience members booed and heckled Macready, then started throwing objects at the stage, and the performance had to stop with almost half of the play unperformed. Macready was ready to go back to England; but as Lawrence W. Levine notes, a letter from individuals including authors Herman Melville and Washington Irving—insisting that Americans would be civilized enough to allow him to perform—convinced him to stay. The result was disastrous: although Macready was able to make it through the full performance at the Astor Place Opera House on May 10, a crowd of working-class men attacked the theatre with the intention of causing severe damage. The rioters backed down only after militia opened fire into the crowd, killing at least 22 and as many as 31 people. As Nigel Cliff notes in The Shakespeare Riots, “Never in the nation’s history had soldiers fired volley after volley at point-blank range into a civilian crowd.” And this infamous event is a disturbing milestone in the lore of the Macbeth curse. Perhaps it is only fitting that the riot resulted from a play that mentions the word "blood" and its variants a whopping 41 times.

It seems like having some fans bitch about a crappy stage production that seemed like a bad idea from the very beginning seems rather tame in comparison, Julie.

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Duke Nukem PR People Publicly Threaten Those Who Give Bad Reviews

Mike Masnick — Thu, 16 Jun 2011 04:14:28 PDT

You may have heard that Duke Nukem Forever finally came out after a decade plus of being vaporware. It's no secret that the original team behind the game was somewhat obsessive-compulsive about not releasing a bad game -- so much so that they never released any game, and kept restarting the project entirely. After 3D Realms finally went under, someone else took control and put together a game... but the initial reviews have been scathing, and suggest that the game should have stayed vaporware.

In response, in a moment of pure PR failure, the PR firm repping the game, the Redner Group, publicly threatened to stop giving preview games to those who gave Duke Nukem Forever a bad review.

"Too many went too far with their reviews... we r reviewing who gets games next time and who doesn't based on today's venom."

That's a huge no-no in the business, because it suggests the whole review business is a tit-for-tat setup, where you only get product if you give good reviews. Jim Redner, the guy behind the tweet removed the tweet, and admitted that he got caught up in the emotion:

It is not my intention to bully anyone. I over reacted. I just voiced an opinion. I have poured my heart into this project and I just want it to succeed.

That's all pretty unfortunate. Of course, this is the nature of the game, if you do this kind of thing. It's also one of the reasons we've tended to stay away from ever dealing with PR people. We don't do product reviews like that, and in part it's because we didn't want to have to deal with this kind of thing. Still, in the end, such a reaction tends to reflect even worse on the game because it calls into question any positive reviews.

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