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Promotion Marketing Association Law Conference – Live Tweeting

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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!


Social Media and Work

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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.


What is “social media” anyway?

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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.


Legally Social on Marketing Sense

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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).


Legally Social: Live!

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For those of you who may be interested in exploring many of the issues of this blog in greater detail, I am co-chairing a day-long conference on social media and the law (helpfully titled “Social Media Law: New Issues Arising From Fast-Growing Business Models“) in Chicago on November 10, 2010, sponsored by Law Seminars International.  In addition to presentations from both me and my fantastic co-chair, Keith Medansky of DLA Piper, you will hear from in-house counsel at some of America’s most innovative companies, and top practitioners at firms around the country.  In any event, we’re quite excited about this (and CLE credit is available for those of you who need it), and we hope to see you there.


Future fatigue: Why you need to restore your sense of wonder to protect yourself

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I don’t think its an exaggeration to say that Neuromancer (William Gibson’s groundbreaking science fiction noir) changed my life.  It probably changed your life too, whether you realize it or not. You see, Gibson imagined a world where we were linked by streams of information, through something he called “cyberspace.”  From this vision was born what became the modern Internet.  Add Neal Stephenson’s vision of virtual community in Snow Crash a few years later, and you have the basis for social media (of course, some folks prefer Vernor Vinge for their visionary science fiction, but we won’t complicate things for those of you who aren’t as big a geek as I am).  My favorite quote from Gibson still remains “the future is already here, it’s just unevenly distributed.”

In any event, a few months back Gibson blogged (yes, like everyone William Gibson has a blog) about how we’re completely jaded when it comes to the remarkable scientific advances that seem to roll through the news each day:

Say it’s midway through the final year of the first decade of the 21st Century. Say that, last week, two things happened: scientists in China announced successful quantum teleportation over a distance of ten miles, while other scientists, in Maryland, announced the creation of an artificial, self-replicating genome. In this particular version of the 21st Century, which happens to be the one you’re living in, neither of these stories attracted a very great deal of attention.

In other words, Gibson argues, we’re all suffering from “future fatigue,” in which everything gets flattened out, and things no longer feel quite so dramatic, so remarkable.

Advances in social media work like that too.  When we first entered the world of the Internet, the future felt like it was cascading on top of us in endless waves of constant innovation.  Now, the innovations come even faster, and in more dramatic fashion, but they’ve become so commonplace that we’re barely even aware of it.  It becomes much like the famous scene in The Blues Brothers, where Jake asks Elwood how often the EL train goes by their window.  “So often,” replies Elwood, “that you won’t even notice it.”

This is actually a problem for anyone trying to think about the legal issues that arise in the context of social media (or any technology-rich environment).  Today, unless you are really paying attention (and by really paying attention I mean that you are a 19 year-old college student, obsessed with social media, with unlimited time on your hands) it is nearly impossible to keep up with all of the changes and new ways in which we communicate with each other.  This makes it even more important to constantly check up on what your marketing folks are doing — you may not have even been aware that the new thing they’re doing even existed, let alone required an update to your privacy policy.  For many folks who work in a business with a social media focus (which means nearly all of them, these days) the changes that take place on your web site or on your other online platforms may seem incremental or minor when, in actuality, you’ve just become inured to the feeling of change.

This is why auditing yourself and your marketing practices regularly is so important.  The most important thing you can do in social media is to be aware of what you’re actually doing.  You may not be impressed with the new things you’re up to, but the “you” of ten years ago would be amazed.  So be impressed, and realize that some of the things you’re doing right now might actually be pushing the envelope, and may require some practical legal analysis.  Restoring your sense of wonder may be the most important step you take in protecting your business in the world of social media.


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