A great deal has been going on in the world of social media, ranging from the obvious (the continuing fight over SOPA and PIPA between content providers and the tech community) to the subtle (the Supreme Court’s decision yesterday that GPS tracking devices are 4th Amendment-regulated searches — a ruling that will have interesting implications for geolocation and the privacy policies yet to come).   As part of the Legally Social World Tour, 2012, I will be speaking about many of these issues at the following upcoming events:

1.  I will be moderating the panel on Social Media and Digital Rights tomorrow in Princeton New Jersey.  This event, sponsored by the New Jersey Technology Council, promises to be fascinating, with prominent panelists such as Paul Nolting, Senior Counsel at Verizon Wireless and Stephen J. Schultze, Associate Director, Center for Information Technology Policy, Princeton University.  If you’re in the neighborhood, I highly recommend the event.

2.  I will also be moderating a panel for the second straight year at the McCarthy Institute Symposium on Trademark Law and its Challenges.  Information on the symposium can be found here.  This is one of the best, and most provocative, symposiums on intellectual property law going on today, and features a keynote speech from Professor Thomas McCarthy, the dean of intellectual property law in America.  I will be hosting a panel on “Government and Quasi-Government Efforts to Protect IP,” including the current Chairman of ICANN, Steve Crocker. 

2012 is shaping up to be another dynamic year for social media, intellectual property and the law.  Stay tuned for further developments…

My sabbatical from blogging this year was quite busy (unfortunately, vacations from blogging usually result from too much activity, rather than a desire to “get away from it all”).   Specifically, I found myself at three different trials (ranging in subject matter from girl’s dolls to rivet cassettes).  It has been a hectic year, indeed, for IP and advertising attorneys.

But in addition to my normal activities as a lawyer (as though that were not enough!), I have spent my spare time over the past several years writing a novel.  All lawyers, as you may be aware, are required at some point in their career to write a novel.   Or at least threaten to write one.   To the relief of my family, mine is done (it is called The Secret Root, and trust me, you’ll be hearing all about it later on….)

But in any event, in the course of writing this novel I have been forced to act like a futurist, imagining what the world would be like 25 years from now, and then 25 years after that.  How would our interactions be sculpted by social media in the years to come.  Would Facebook (now with a $100 billion valuation) still be a player 25 years from now?  What about Google, or Twitter or any number of other significant brands that shape our world today?  How would we live our lives?

Recent books have tried to tackle this subject with a variety of different conclusions.  The acclaimed Super Sad True Love Story imagines a media saturated world where the lowest common denominator renders us helpless, pathetic wretches in thrall to pointless and worthless technology.  Neal Stephenson’s bestseller REAMDEsuggests that the videogames of today will morph into the new economy of tomorrow — that world-building for fun and world-building for profit are largely the same, and that as our ability to interact with electronic worlds improves we will begin to substitute our “real” life for a simulation.  Other works imagine transhumanism, dystopia and crime.

But while speculation is fun, it is also important.  The rules we set today will inevitably shape the technologies we get 20 years from now, and the attitudes we adopt will direct our actions.   It really will matter whether Protect IP and/or the Stop Online Piracy Act are passed into law — whether you support them or not.  It really will matter whether cybercrimecontinues to be a focus of law enforcement.  Will geolocation and couponing and rebates and environmental marketing all merge into some amorphous repository of your personally identifiable information?

Actually, my suspicion is exactly that — as advertising becomes more sophisticated, and consumer marketing is fed more data, more and more things will be free in exchange for data about you.  More and more marketing practices will be focused on customization and personalization, and more of that will be tied to your online persona.  While we have a few years before you live your life as an avatar, you only need look at how 12 year-0lds communicate today to realize that in-person interaction is diminishing rapidly as an attractive choice for the next generation.   As massive as Facebook may be today, the potential for synthetic currencies (the logical end-point for Facebook Credits and Linden Dollars, and other “payment systems” that are simply stalking horses for “real money”) and synthetic identities bodes well for the future of social media — even if it will also make it a far more slippery place.

When I look back at where technology was in the early 1990s, and how far it has come in the two short decades that have intervened, I cannot help but think that we are grossly underestimating how much we have changed, and how much we will change once again.  Like the hipster narrator of an LCD Soundsystem song, we were there when things began to change, but we will soon be left behind by “the kids” and things that we cannot even imagine today.

As interesting things arise during this year’s PMA Marketing Law Conference in Chicago (held today and tomorrow) I will try to jump in with some live tweets at @legallysocial.  Also check out the hashtag #pmalaw11.  This is the key conference covering issues of promotion law, sweepstakes, contests and other marketing practices (online and offline).   Privacy, virtual currency, geolocation, coupons, sweepstakes, gaming — you name it.  So stay tuned!

This year has been an exceptionally busy one — in fact, it has been the busiest one I can remember.  I spent several months at one trial, out of town, to begin the year, and have spent more recent weeks in rapid-fire preparation for another trial, also out of town, coming up in September.   This has left me with little time to blog about my thoughts on social media and the law, even as I continue to counsel clients on these issues and follow the radical transformations in both technology and practice that seem to occur each and every day.   This is, indeed an exciting time.

Thus, to put it mildly, I am looking forward to returning to this blog full time later this year, and to discuss everything from Supercookies to branding with all of you on a regular basis.  In the meantime, I suggest that you continue to follow me on Twitter, where I will still be tossing random thoughts and developments into the ether as time permits.

Defining our terms is actually a fairly important activity when discussing social media and the law.  What do we mean by “social media”?  Is there a standard definition?

To be completely (and painfully) self-referential about it, Wikipedia defines “social media” as:

[a] type of media that is based on conversation and interaction between people online. Where media means digital words, sounds & pictures which are typically shared via the internet and the value can be cultural, societal or even financial.

Social media are media designed to be disseminated through social interaction, using highly accessible and scalable publishing techniques. Social media use web-based technologies to transform and broadcast media monologues into social media dialogues.

Of course, because culture cannot exist without the propogation of jargon and fights over what that jargon really means, debates have inevitably arisen over whether X is really a form of social media.  Thankfully, this is an easy question to answer: Of course X is a form of social media.  Unless you disagree, in which case it is most certainly not.

For many, Twitter is the big question.  In some respects, it can be used like an atomized version of broadcast media.  The New York Times uses the format in that exact fashion.  For others, it is a way of communicating with groups of friends who converse with each other in a cascade of @ symbols (e.g. talk to anyone under the age of 25, and you’ll see what I mean).

Last year, Information Week joined this pointless (though oddly compelling) debate about the nature of how we speak to each other online, reporting on a study which purports to show that Twitter is, essentially a kind of old media model broken into tiny bits:

The findings dispelled the notion that Twitter is a social network, similar to Facebook or MySpace. Instead, Twitter users were more in the business of disseminating news quickly, much of it based on current events, the study found

Agree or not, why do we care?  When we name things, you see, we give them power.  We put them in categories, and how we think about things is driven by how we categorize them (thankfully, I will refrain from getting into obscure discussions of structuralism at this point).  If companies and individuals simply think about Twitter as a broadcast bullhorn, it will influence how they deal with it internally.  If they view it as a way of interacting back-and-forth with others, they will see it in a different light.  There are policy implications to each approach.

And, of course, the obvious answer to how you deal with Twitter (or any other form of communication) depends on how you intend to use it.  If Twitter is intended to be, for you, a conversation with your customers, then it is indeed a form of social media.  If it is intended as a quick, instantaneous way to disseminate information while remaining closed to a response, then it is a PR release.

So what is the takeaway from this debate? While it is useful to pay attention to definitions, it is more important to pay attention to behavior, and how you intend to use these tools.  Your use, not marketing jargon, should drive your policy approaches, and your framework for dealing with communication in all available formats.

One of the great brand consultants in our fine nation (and someone I’m proud to have as a co-author and a client), is Mary Morgan of the Morgan Network.  She has been systematically interviewing folks for a series entitled “Marketing Sense,” seeking their thoughts on critical issues to marketers today.  As part of that effort, Mary recently interviewed me — which was both fun and interesting.  While this interview is short, it does provide me with the opportunity to sound off on some of the legal issues that are important to marketers.  I hope you enjoy it (even if it means you have to look at my face made for radio).  Please also check out the great interviews with Wendy Kritt (Senior Director of Global Consumer Relations of Kraft Foods) and Matt Berman (the genius behind Bolt Barbers).