Articles Posted in Terms of Service

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Thank you to everyone who joined us in both New York and Washington, DC for our Social Media Week events – Game On!

Special thank you to all of our panelists: Randy Leibowitz, Mike Scafidi, Tim Ettus, Lou Kerner, Peter Corbett, Jim Gatto, Sean Kane, Lauren Lynch Flick and Tina Kearns (many featured in the picture and video below). 

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As promised, we recorded our DC program Social Media Promotions, Contests and Sweepstakes and Social Media Audits. Check it out!

(Part 1) Emerging Legal Issues in Social Media: Social Media Contests, Sweepstakes, and Promotions please click here
http://youtu.be/_Uts2BT542M

(Part 2) Social Media Audits please click here http://www.youtube.com/watch?&autoplay=1&v=_Uts2BT542M#t=2489s

If you would like any additional information about these topics or the events, please contact the Social Media, Entertainment & Technology team.

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According to a recent report, Instagram lost nearly 25% of its users (as tracked by AppData) nearly overnight. The cause is believed to be due to a very unpopular change to its Terms of Service. Prior to this, Instagram was one of the most popular and fastest growing social media sites. 

Many companies overlook the importance of terms of service. They are, and always have been, critically important from a legal perspective. But so too are they important from a customer relations perspective as the Instagram incident illustrates. Many companies (and their lawyers) bank on the fact that most users do not read the terms of service.  The problem with this approach is that some users DO read them. And more frequently, consumer watchdog groups do as well.

When someone flags a problem or change as occurred here, then the issue goes viral in a hurry. Ironically, the same advantages of the virality of social media that helped Instagram with its meteoric growth, were disadvantages when this news broke and apparently lead to an immediate 25% decline in users.

This is not the first company, and likely will not be the last, to have a fiasco due to issues with its terms of service and/or privacy policy. If you want to avoid being one of these companies, do it right! Get solid legal advice on your TOS and Privacy Policy and make good business choices that do not offend your customers. Contact us for additional information.

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

Bicycle card game owner to launch Zeniz mobile social casino games platform

Online casino games are hot. So much so that we’re renaming our site Casino GamesBeat. Just kidding, but The United States Playing Card Company (owner of the Bicycle playing card brand) and Digi117 aren’t. Those two companies are partnering to form Zeniz, a mobile social casino game platform.

The Enforceability Of Facebook’s Terms Of Service

In the recent online contracting case of Fteja v. Facebook Inc., a New York federal court held that a forum selection clause contained in Facebook’s statement of rights and responsibilities (the “terms”) was enforceable because the plaintiff assented to the terms when registering to use Facebook.

Beyonce Can’t Sidestep Suit Over Video Game Deal

Pop singer Beyonce’s attorney failed to convince a New York state judge Wednesday to throw out allegations that she violated a contract when she abruptly pulled the plug on a multimillion dollar video game development deal.

Augmented Reality Toys for iPhone and iPad: A Work in Progress

Can traditional toy makers capitalize on the rise of smartphones and tablets?
Wowwee Toys thinks it can. Next week, the company behind Paper Jamz and Lite Sprites is releasing its first toys in the AppGear line, which combine physical toys with companion smartphone and tablet apps.

Zynga Online Social Gambling

Zynga is known for its creation of a whole new breed of social games on cell phones and computers. They created social games that include gambling that is available for players to play on social networks, especially Facebook while being at home on their PC or outside through their cell phone. This creation has caused quite a stir in the world of gaming, as it made all of the console game companies such as EA forced to join this world so they don’t stay way behind.

Kids Play Educational Games And Win Real Prizes From Their Favorite Teen Celebrities At Club TUKI

Club TUKI has patented a process where kids play educational games,
earn a virtual currency called TUKI Moola, then bid or buy auction items in the TUKI auction. With the gaming platform now established, Club TUKI has launched Club TUKI News, a news site for kids that brings all of their favorite teen celebrities right to their fingertips.

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Pinterest is one of the fastest growing social media sites. Pinterest enables users
to “pin” interesting things to a virtual pinboard to share with others. A pinboard is largely a collection of images organized by topic (home decorating, wedding planning, etc.).

A recent article calls into question the potential risks that users face by “pinning” third party content. As pointed out in the article:

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE,
APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU.

Additionally, Pinterest wants you to indemnify them if your posts create a liability for them.

You agree to defend, indemnify, and hold Cold Brew Labs, its officers,
directors, employees and agents, harmless from and against any claims,
liabilities, damages, losses, and expenses, including, without
limitation, reasonable legal and accounting fees, arising out of or in
any way connected with (i) your access to or use of the Site,
Application, Services or Site Content, (ii) your Member Content, or
(iii) your violation of these Terms.

Sites hosting user uploaded content can shield themselves from liability by leveraging the Digital Millennium Copyright Act. Does this leave users holding the bag if there is infringement?

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Many people invest significant time, effort and in some cases real money to acquire virtual goods. There is great perceived value in these virtual goods. But there are a growing number of cases, where users have been the subject of hacking and other situations where they have had their virtual property stolen. See for example our prior blog entry on a massive theft of 400 billion poker chips from Zynga users.

Most game and virtual world operators try to shield themselves from claims of loss by their users through effective legal strategies embodied in their terms of service. In most cases, users are only granted a license to use the virtual goods, but they do not own them and the terms often make clear that there is no independent value to goods. Additional disclaimers and liability avoidance language may also be included. Yet, this has not stopped some users from suing for the loss of the perceived value of their virtual goods.

Given these potential claims, what else can companies do to protect themselves from such risks? Apparently, this risk may now be insurable – at least in China – thanks to a collaboration between Sunshine Insurance Group and Gamebar.  According to a report, by China Daily a Sunshine Insurance spokesperson said “The insurance will help to reduce operating risks for online games
companies as the companies which purchase the insurance will be covered
to compensate customers in the event of lost or stolen property.”

It will be interesting to see if that catches on in the US and elsewhere, and if so, what will be covered and what will not. Check back for updates.

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As we discussed here,
the EU “Cookie Rule,” which requires companies with European customers to get informed consent from visitors to their websites in order to use most cookies (other than those “strictly necessary” for the service requested by the consumer), went into effect on May 25. As an example of how they wanted websites to behave, the UK Information Commissioner’s Office put the following banner on their website:

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Thanks to a Freedom of Information request from Vicky Brock, we can see the effect of the opt-in cookie requirement on tracked traffic to the ICO website:

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Vicky has also made the underlying data available in a Google Docs spreadsheet.

While this does seem to pose a challenge for marketers, there are a couple of things about this data to keep in mind:

1)         The UK ICO implemented the opt-in via a banner on the top of the page. People have grown so used to ignoring banners that they might not have even looked at the option being provided. Thus, another method for requesting consent might have a greater opt-in rate.  Guidance from the UK ICO states that consent can be obtained via the following methods:

  •         
    Pop-ups. A website operator could ask a user directly if they agree to a website operator putting something on their computer and if they click “yes”, this would constitute consent.
  •         
    Terms and conditions. A website operator could alternatively make users aware of the use of cookies via the terms and conditions, asking a user to tick a box to indicate that they consent to the new terms.
  •         
    Settings-led consent. Consent could also be gained as part of the process by which the user confirms what they want to do or how they want the website to work, e.g., some websites “remember”
    which language version of a website a user prefers. If this feature is enabled by the storage of a cookie, then the website operator could explain this to the user and that it will not ask the user every time they visit the website.

It is worth noting, however, that the guidance does not purport to be exhaustive. The ICO states that they will consider supplementing the advice with further examples of how to gain consent for particular types of cookies in the future. It goes on to say that the examples listed are not intended to be a prescriptive list on how to comply,
rather, that a website operator is best placed to work out how to get information to users and what users will understand.  Each case will be facts-specific.

2) 
       Even for those who did see the banner, there isn’t really any incentive to opting-in. If a website makes a case for the opt-in by pointing out additional functionality or other benefits to opting-in, that may increase the opt-in rate.

Another issue for websites is that it is not yet clear whether the Cookie Rule applies to non-cookie tracking technologies like web beacons. Technically, the Cookie Rule applies to “the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user.” However, given the assertive position that many European Data Protection Authorities take towards the protection of personal information, it may be prudent to assume that anything that lets a website track users could require consent. In the case of web beacons, as well, since they could disclose a users IP address, which could be personally indentifying information, they might be subject to the general obligation to obtain user consent before collecting personal information,
anyway.

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As we previously posted, Viacom is appealing to the Second Circuit its summary judgment loss to YouTube (and its parent Google) of a billion-dollar copyright infringement suit.  Last June, the U.S. District Court for the Southern District of New York ruled that YouTube is entitled to safe harbor protection under the Digital Millennium Copyright Act (“DMCA”) and granted YouTube’s motion for summary judgment on the basis that it did not have sufficient notice of the specific infringements at issue.  

At the crux of the court’s decision was “whether the statutory phrases ‘actual knowledge that the material or an activity using the material on the system or network is infringing,’ and ‘facts or circumstances from which infringing activity is apparent'” in 17 U.S.C. § 512(c)(1)(A)(i) and (ii) mean “a general awareness that there are infringements” as argued by Viacom, or instead mean “actual or constructive knowledge of specific and identifiable infringements of individual items,” as argued by YouTube.  The court agreed with YouTube’s interpretation, ruling it was supported by both the DMCA’s legislative history and recent case law.

Both sides have submitted their appellate briefs, and the Second Circuit has received 28 briefs filed by amici curiae.  Oral argument will likely be scheduled between late August and late September.   

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

Groupon Files for $750 Million IPO

Groupon has filed with the Securities and Exchange Commission to go public in a $750 million IPO underwritten by Morgan Stanley, Credit Suisse and Goldman Sachs.

Pandora Raises IPO Size as High as $141.6 Million

According to Thursday’s amendment,
Pandora is now looking to sell 15,736,600 shares at a maximum offering price of between $7 and $9 per share. That means its IPO could be as big as $141.6 million.

Why YouTube Adopting Creative Commons Is a Big Deal

Making legal YouTube mashups just got a whole lot easier. The site’s video editor is now allowing its users to remix existing YouTube videos without violating anyone’s copyright. This is made possible by YouTube adopting Creative Commons licenses, offering users the chance to publish any video under the liberal CC-BY license.

Tenn. Passes Web Entertainment Theft Bill

State lawmakers in country music’s capital have passed a groundbreaking measure that would make it a crime to use a friend’s login — even with permission — to listen to songs or watch movies from services such as Netflix or Rhapsody.

Virtual Worlds: Immersive Training,
Collaboration and Meetings

Are virtual worlds really viable environments for work? According to a survey by Unisfair, a global provider of virtual events and business environments, usage of virtual environments is growing for marketing,
training and collaboration. Surveying 550 marketers nationwide, the study revealed that 60 percent of respondents plan to increase spending on virtual events and environments this year.

Army Names Top Builders of Virtual Worlds

The U.S. Army is looking for a few good worlds — virtual worlds, that is. The Army Research Laboratory Simulation & Training Technology Center announced winners for its annual Federal Virtual Worlds Challenge in which contestants from around the globe compete to produce the best virtual solutions for training and other applications.

Mobile Phones Transform Consumer Payments and Retailing Both On and Offline

The mobile phone is catalyzing virtual currency and payment development across the globe, says Geraldine Mitchely, business development manager for mimoney, virtual currency powered by Standard Bank, which resides on the mobile phone.

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Many nonprofits are using social media to create awareness of their cause, raise funds, develop closer connections with existing constituents and engage with new ones.

On April 14, 2011, at The Kreeger Museum in Washington, DC, Jim Gatto delivered a compelling presentation
on top social media legal issues targeted to nonprofits. His presentation explored examples of how nonprofits are using social media today, including a focus on virtual goods, virtual currencies and gamification and the associated legal issues. For a copy of his presentation, please click here.

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Originally posted on the Gamification Blog.

Many people are aware that in 2009,
the FTC implemented guidelines that addressed the use of endorsements and testimonials by bloggers. The main stream press highlighted just the part of these guidelines that require disclosure by bloggers of compensation received for recommending a product or service. However, the guidelines include some lesser known provisions which apply more broadly to consumer generated media and relate to gamification.

  • The guidelines are not limited to bloggers, but cover any advertising message,
    including consumer-generated media,
    that consumers are likely to believe reflects the opinions, beliefs, findings,
    or experiences of the endorser. This includes consumer testimonials, such as reviews or recommendations endorsing a product or service on any social media site, not just blogs.
  • When a connection exists between the endorser and the seller of an advertised product that might materially affect the weight or credibility of the endorsement, such connection must be fully disclosed. In one example, the FTC says that if a blogger gets a free video game to evaluate and review, he must clearly and conspicuously disclose that he received the game for free. In another example, it states that if someone receives redeemable points each time they tell friends about a product, this fact needs to be clearly and conspicuously disclosed.
  • In these examples, the FTC also states that the company needs to advise the consumer giving the testimonial that this connection should be disclosed,
    and it should have procedures in place to try to monitor the consumer’s postings for compliance.
  • Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers may also be liable.
  • Whenever an advertisement represents, directly or by implication, that the endorser is an expert with respect to the endorsement message, then the endorser’s qualifications must in fact give the endorser the expertise that he or she is represented as possessing with respect to the endorsement. This raises potential gamification issues with leader boards, badges and expert status to the extent that this implies an “expert”
    status that the user does not actually posses.

This is just one of many examples of little known laws that relate to gamification.
For more information on legal issues with gamification contact james.gatto@pillsburylaw.com.
Jim, who is the head of Pillsbury’s Social Media, Entertainment and Technology group, delivered a presentation on Managing Legal Risk in Gamification at the 2011 Gamification Summit. A copy of that presentation can be found at here.