As I sit here at 35,000 feet inside a tube of steel moving at 500 miles per hour across the continent, I find myself thinking about the similarities between this moment in our social media-drenched existence, and the early 20th century, when my grandfather was a boy and no aircraft contrails besmirched the sky.

In the early years of the 20th century, the art world was awash with bizarre avant-garde “movements” — you could barely walk down a street in Paris, it would seem, without stepping on someone’s keening manifesto, or stubbing your toe on one of their unidentifiable (yet quaintly offensive) sculptures.

In other words, there was no Internet yet.

As detailed in Greil Marcus’ classic  Lipstick Traces: A Secret History of the 20th Century, we learn that the Dadaists sought to  shock our bourgeois understanding of art by engaging in what some at the time called “anti-art.”  They put out crazy manifestos demanding ridiculous things, engaged in large scale public demonstrations over nothing in particular, put on plays and then rioted during the performance, and broke every rule that had previously existed as a framework for “art.”

The Dadaists were a sensation at the time, but that isn’t why they are important.  Rather, I am interested in Dada because of what it means to understanding our moment today.   In the early 20th century, the Dadaists felt that they had to be completely over-the-top and outrageous in order to break through the rigid cultural guardians who claimed to speak for what was right and appropriate.  They didn’t merely push the envelope, they ripped it open in their quest to get noticed and to spread their message of revoluion. They tried to be as different as possible from everything else, and thus more efficiently and effectively conveyed their story to a flabbergasted populace.

Today, content providers have a similar problem.  There are still guardians at the entrance to tradtiional media outlets.  Just ask any author how difficult it is to get a book on Oprah.  And the social media vanguard is so diffuse that (even with every tool of search engine optimization you can imagine) it is difficult to stand out. With the increasing move to apps as a substitute for raw browsing, the potential to find your potential audience herded into pens under the control of yet another gatekeeper looms in the near future.

So what should you do to break through, and what does this have to do with the law?  Actually, the answer is pretty simple, and it has everything to do with the law.  The answer is in the phrase “ownable distinction.”  This phrase, first developed (I’ll pat myself on the back here) about a decade ago in an article by yours truly and brand consultant Mary Morgan, deals with a basic failure of the imagination — a failure that each of us is guilty of nearly every day: a failure to look at what we do, or what we are, from the perspective of our audience/customers, and to see that the distinctions between us and other choices are often more important than any intrinsic merit.

You see, the basic point of the article (and the concept itself) is that the only things that really matterin the end when thinking about your business, or any cultural production ranging from art to music to your social media presence, are (a) the things that distinguish you from other choices in the marketplace (either the real one or the marketplace of ideas), and (b) the extent to which those distinctive things are unique to you (in other words, are they “ownable” in any real sense).  Wait a minute, you might say, what about quality?  Of course, but as we all know many great products fail, and many mediocre products succeed.

What kind of things can provide ownable distinction?  A message associated with a brand is often most effective.  A portfolio of patents can do the trick, as can copyright, trade dress, look-and-feel, or any number of other legal concepts.  Even trade secrets associated with your logistics system, or internal processes that are only experienced by the customer through  unique purchasing option.  But the important thing is to think systematically about these things, both at the inception point and throughout the life of your engagement with market.   Think through what you do, and try to identity what it is that you do that is different from your competitors.  Take a lesson from the Dadists and try to make a break with the past, and create new ways to mark yourself as different.  Push the envelope until your outrageous distinction becomes your calling card.  And then consult with your lawyer and try to figure out whether any of these distinctions can be protected, and maintained as a point of difference through tools provided by the law.  If you don’t do it, your competitor may very well beat you to the punch, and then you’ll be left with little distinction, and nothing of your own.

One of the more interesting developments in the world of intellectual property these past few weeks was the announcement that Paul Allen, co-founder of Microsoft (though not involved in the management of that company for many years) and long-time technology entrepreneur had sued pretty much every major player in the world of e-commerce for patent infringement. 

By saying that he sued ”pretty much every major player” I’m not speaking hyperbolically.  The defendants in his suit are:  Apple, Google, AOL, eBay, Facebook, Netflix, Office Depot, OfficeMax, Staples, Yahoo and Google’s YouTube subsidiary.  The only notable absences: Microsoft (natch) and Amazon (which is also based in Seattle). 

So what are these suits about?  The suit revolves around four patents (really three with a continuation patent following the second one) : (1) A “[b]rowser for use in navigating a body of information, with particular application to browsing information represented by audiovisual data” (6,263,507)  filed Dec. 5, 1996, and issued July 17, 2001; (2) “Attention manager for occupying the peripheral attention of a person in the vicinity of a display device” (6,034,652) was filed March 22, 1996, and issued March 7, 2000; (3) “Alerting users to items of current interest” (6,757,682) was filed Sept. 7, 2000, and issued June 29, 2004.

So what does that mean?  It means that Allen’s patents (filed back in 1996, at a fairly early stage in the development of the modern Internet) supposedly cover many of the basic elements of the modern e-commerce experience.  Are they valid? Who knows at this point.  Are the defendants infringing?  Again, too early to say. 

Okay, you may be asking yourself, why should you care about this case when (a) it is too early to know anything, and (b) you’re not a defendant?  Actually, there are some very good reasons to pay attention here — both because of what this case represents in the abstract, and what it addresses more specifically. 

There are a whole bunch (and in using the technical term “whole bunch” I mean an almost uncountable hoard) of patents from the early days of the Internet and the later days of networked mainframe computing that could apply to something that you’re doing right now.  Moreover, there are even more patent applications (many of whom haven’t even been published yet) that could apply to what you’re about to try.  As we noted in the past, when the question arises “are you infringing somebody’s patent,” the answer for many companies is “probably!”

So what should that mean for you, or for anyone else?  It certainly means that you should engage in some basic IP hygeine — if you’re about to do something new, you should (a) make sure that you’re protected contractually if your vendor is supplying the tool, or (b) if you developed it in-house, make sure that you have properly checked to make sure that you’re not stepping on someone else’s toes.  And, maybe, consider whether what you have done is sufficiently novel to justify pursing a patent yourself.

Will this protect you from getting dragged into the infamous Eastern District of Texas to face a patent holding company and some very talented lawyers wearing cowboy boots?  Nope.  But considering the risks, it is worth checking to see if you’re properly indemnified.  It’s also worth considering whether your “new” approach is really all that new, and whether someone else may stand up to claim it as their own.

With the launch of Facebook Places, news that Facebook is buying location-based check-in service Hot Potato, and the continuing expansion of services like Foursquare and many others, the world of geotagging and location-based loyalty programs is going completely crazy.

But with this dynamic new technology in the public eye nearly every day, the question must be asked: so what?  Is this really as dramatic a change as everyone is predicting?  Are there legal issues which you should consider as you walk this new pathway?

As for the first question, the answer is quite simple: yes.  More and more of your experience on the Internet is likely to be through mobile devices, and specifically through apps.  This means that an opportunity is present for every marketer on the planet: if they know where you are, they can give you things you need.  If you are in their store, they can give you a coupon through your mobile device.  If they know you are near their store, they can come up with something to encourage you to visit.  If you want access to things and experiences, and those things and experiences can find you(as opposed to the more traditional reverse of that) then you may buy things you didn’t even know were available.  You may participate in games that could not have been created without your personal location being relevant to game play.  In other words, if folks can find out where you are, they can know a lot more about what you want, need or might be convinced to do.

So yes, geotagging will not be going away anytime soon.

But should you be concerned? Of course! Are there any developments on the web that do not concern lawyers?

First, let’s take the obvious: if there is a record of where you are at a given time, suddenly that’s evidence.  There are an almost infinite number of claims where the question “where were you on the night of…” is relevant.  Suddenly, there’s an opportunity for proof, or alibis, or just corroboration.  This may, in fact, present a revolution in the world of e-discovery.

Beyond that, the issues are somewhat more fact specific.  Privacy will, obviously, remain a concern.  If you are publicizing where you are (or if someone is doing so without your consent) and you are endangered for some reason as a result (the amusing but disturbing site pleaserobme is a prime example of how this could be used for nefarious purposes).  How is this information being collected, and is it in compliance with your privacy policy (or, even more concerning, COPPA or foreign privacy directives)?  If this is part of a loyalty program, or a coupon/rebate program, do you have your rules set up properly?  Do you even know that you need rules for a loyalty program (most folks don’t realize that they can’t merely copy the frequent flyer programs used by the airlines — they are preempted out of state laws by the FAA)?

Most critically, though, you need to consider whether knowing where your customers are/will be/have been is useful to you, or are you merely jumping on a bandwagon that has no real relevance to your own business model.  In some respects, that remains the biggest risk of anything in social media: getting so blinded by the brilliance of new tools that you loses sight of what is actually important to you and your business.

Here at Legally Social, we always try to be at least one day ahead of the conventional wisdom.  And this week, that’s exactly how it played out.  On Monday, we discussed how the commerce model of the Internet was changing, and more specifically how “ Facebook’s goal is actually to create a private Internet, with all of the functionality of the Internet but with everything you might need under a single roof.”  Taking this point even further, yesterday an article on Wired.com posited that the world of apps and content aggregation is actually killing the “web” as we know it and replacing it with something entirely different.  Everyone is now talking about — and wondering if it is visionary or just hype.  The key quote:

You wake up and checkyour email on your bedside iPad — that’s one app. During breakfast you browse Facebook, Twitter, and The New York Times— three more apps. On the way to the office, you listen to a podcast on your smartphone. Another app. At work, you scroll through RSS feeds in a reader and have Skype and IM conversations. More apps. At the end of the day, you come home, make dinner while listening to Pandora, play some games on Xbox Live, and watch a movie on Netflix’s streaming service.

You’ve spent the day on the Internet — but not on the Web. And you are not alone.

The idea here is that marketing, commerce, gaming, search — and pretty much everything else you can think of — is now being directed to highly focused apps for your mobile devices, and private networks (like Facebook) designed to give you everything you need without going elsewhere.  Or going on the web through your browser at all.

So why should you care, and what exactly is the legal angle on all of this anyway?  Another key quote from the article takes us there:

This was all inevitable. It is the cycle of capitalism. The story of industrial revolutions, after all, is a story of battles over control. A technology is invented, it spreads, a thousand flowers bloom, and then someone finds a way to own it, locking out others. It happens every time.

This is also the story of intellectual property.  The “web” is, effectively, uncontrolled.  This means that no one is collecting rents.  No one is collecting taxes.  Everyone is pretty much doing their own thing.  With a dedicated platform (such as a social network or an app or (increasingly) a social network accessed through an app) you are at the mercy of someone who can own the experience.  Maybe you.  This means that people will pay for access to you.  It means that you will pay for access to the platform.  It means that money will be made.

I noted a few weeks back that data mining was the killer app of social media.  But perhaps a better question is whether the killer app of social media is…apps.  If you generally find yourself using the Internet at home on your iPad, you may only be using the web when you click on a link that someone attached on a Twitter feed.  You can access your mail through an app, read a book on an app, watch a movie on an app, read magazines and access content on an app, check the weather on an app…okay, perhaps you look at your RSS feeds on Safari.  But it is easy to see that the change, while subtle, has been real and is ongoing at a rapid pace.

But this model also means that software patenting may become increasingly important — whether you think it good or evil.  Branding becomes more important because you want people to associate your app with a basket of associations such that they will return again and again.  Copyright (both in the software and the look and feel of the experience) will be crucial.  Advertising your app will become an art, and claims will be made about the performance of the product that may be subject to challenge.  New types of faux “currency” will be used to transact business. 

So start thinking about it now.  Yes, this could turn out to be like the “push” bubble of the late 1990s, where Pointcast was going to change everything.  But unlike that overhyped phenomena, lots of people are already using iPhones.  Lots of folks are using Android.  Lots of people have already bought into the model — there are even great websites today devoted to curating the app experience. 

No, the web isn’t going away.  There will always be a need for a free form space (and once the world of Snow Crash comes into existence we’ll need it…) But consider: will people be using the web to find me 5 years from now, or do I need to start creating another tool?  There’s never a better moment to start thinking about these things than right now.

This weekend, the Wall Street Journal supplied readers with a detailed look at the world of data mining.  The tone of this massive article is one of shock — websites are tracking your behavior! The surveillance state is upon us!  But in some respects it is the surprise that comes as a surprise. 

In fact, it should be obvious to anyone who has been paying attention to the Internet, and especially the social media revolution of Web 2.0, that data mining and tracking software is the killer app of e-commerce.  Before the Internet, companies had to rely on market surveys and anecdote in order to track the behavior of their customers (and, even more importantly, their potential customers).  Data was often unreliable, and even when it reflected consumer preferences it was often received months after the relevant transaction. 

The Internet, and particularly the interactive aspects of social media, suddenly provide industry with a wealth of tools to understand their consumers and build correlation models to better comprehend what they do and why they do it.

But with the power of these powerful insights comes an obvious dark side: in order to get that information, you need to snoop.  The big question in all of this is whether consumers are complicit in this snooping (in other words, do they understand that they are exchanging access to cool things on the Internet for less privacy) or are they largely unaware of the extent to which everyone now knows the details of their browsing life.

Companies like to think that everyone knows — that everyone can read their privacy policy, and no one has any right to complain.  After all, they don’t have to agree to use their sites.   But the FTC is not so sure that this type of knowledge can really be imputed to consumers.  In fact, just this past week something very interesting happened. 

On July 27, 2010 FTC Chairman Jon Leibowitz told a Senate panel that it was considering a “do not track” registry.  This idea, which would presumably track the logic of the FTC’s popular “do not call” registry, would represent a dramatic change for online marketers.  “[C]onsumers could opt out of behavioral advertising more easily, rather than having to make choices on a website by website basis,” he said.

If this idea comes to fruition, it will force everyone to reconsider their activity in the behavioral marketing space.  But why wait?  Instead, you should start thinking about it right now.  How are you gathering information from consumers, and what are you doing with it?  Are you installing tracking software on their computers?  What types of disclosures are you using? 

The answer to the question of “how far is too far” in this space will vary from company to company, of course, but you need to think through your plans, and how they mesh with consumer expectations.  Right now.  If you don’t do it, someone may do it for you.  And sooner than you may think.

The New York Times has a provacative piece up this week on something we have discussed in the past– that the Internet has created a permanent record that memorializes everything you’ve ever said, done or experienced.  Like Funes, the famous Borges character, nothing is ever forgotten. 

With social media extending its tentacles into every aspect of our lives, that permanence prevents young people from making mistakes without consequence, and expands the impact of mistakes made by adults.  The article itself contains a stunning fact that, while hardly surprising, adds a statistical exclamation point:

According to a recent survey by Microsoft, 75 percent of U.S. recruiters and human-resource professionals report that their companies require them to do online research about candidates, and many use a range of sites when scrutinizing applicants — including search engines, social-networking sites, photo- and video-sharing sites, personal Web sites and blogs, Twitter and online-gaming sites. Seventy percent of U.S. recruiters report that they have rejected candidates because of information found online, like photos and discussion-board conversations and membership in controversial groups.

If we cannot forget — and more importantly, if our employers and our friends and our social networks cannot forget — what does that mean for the law?  It means that how we think about damages, and how we think about injury, may need to change.  Suddenly, the permanence of our errors (and who among us does not make errors?) means that a statement that might have been harmless in the past now has real consequences. 

So what does this mean for all of us?  I suspect that in the future (perhaps a generation from now) we will have all become so accustomed to this type of collective memory that we will ignore it, much like Elwood Blues never heard the noise of the El trains outside his window because they drove by so often.  But even more likely, I think, is that we will all feel an additional stress in our lives, the stress of knowing that there are thousands of statements and comments and postings littered around the Internet waiting to explode, and that we cannot get rid of them.  That stress, the stress of a perfect memory,