HIGHLAND HEIGHTS, Ky. (May 15, 2013) — The Northern Kentucky University Chase College of Law has received a $1 million gift from W. Bruce Lunsford to establish and support the W. Bruce Lunsford Academy for Law, Business + Technology.

Lunsford, a 1974 graduate of Chase College of Law, is chairman and CEO of Lunsford Capital, LLC, a private investment company headquartered in Louisville, Ky.

The W. Bruce Lunsford Academy for Law, Business + Technology will be an honors immersion program operated by the NKU Chase Law + Informatics Institute. The focus of the program will be to develop “renaissance lawyers” for the Information Age. The Lunsford Academy will provide students with the technological, financial and professional skill sets essential to the modern practice of law.  Through the program’s technology-driven, skills-based curriculum, students will acquire the fundamental skills that will make them more productive for their clients, more attractive to employers and better prepared to practice law upon graduation.

For those interested in learning more about the details of the program, the most comprehensive vision is provided in my forthcoming article from Connecticut Law Review. An working draft of the paper may be found here: Jon M.Garon, Legal Education in Disruption: The Headwinds and Tailwinds of Technology, (Conn. L. Rev. forthcoming) at SSRN: http://ssrn.com/abstract=2040560.

In addition to taking the program’s required and elective law and informatics courses, Chase students participating in the Lunsford Academy will have the opportunity to participate in technology-focused semester-in-practice placements and study abroad programs; they will also be able to seek joint degrees.

Chase College of Law partners with the NKU College of Informatics to offer a Juris Doctor/Master of Business Informatics and Juris Doctor/Master of Health Informatics and with the NKU Haile/US Bank College of Business to offer a Juris Doctor/Master of Business Administration.

Professor Jon Garon, director of the Law + Informatics Institute, said the development of the Lunsford Academy is the next step in the evolution of legal education. “In addition to a solid foundation in legal doctrine, theory and practice, law students need business education, information technology and intellectual property knowledge, and law practice management experience,” he said. “These skills will enable students to compete in today’s highly networked, efficient and global business community. The generous donation by Bruce Lunsford enables Chase to meet this challenge and redefine the scope of legal education.”

In recognition of Lunsford’s gift, the academy will be named the W. Bruce Lunsford Academy for Law, Business + Technology, upon approval by the NKU Board of Regents.

“We are extremely honored and pleased that Bruce has made this significant investment in our Law + Informatics Institute,” said Dennis R. Honabach, dean of the College of Law. “The Lunsford Academy will provide our law students with invaluable opportunities to become uniquely prepared for the modern practice of law.”

His column deftly discusses the tension between consumers who want the inconvenience of encryption eliminated and concerns that DRM targets lawful consumers far more than those acquiring illegally distributed copies. Although he does not address the plethora of DRM-free versions on bit torrent sites, he notes that the changes to DRM for commercial products might affect the rate of piracy, but not the existence of piracy.

The Tor announcement highlighted a few other features of their strategy. First, the strategy was about their authors and the goals of the authors to engage more effectively with their readers. Secondly, as a science fiction imprint, their readership is among the most capable of getting DRM-free copies, so the publisher needs to make the consumer happy more than it needs to protect itself from the consumer. And finally, the decision to eliminate DRM does not mean that the works are not for-profit, on-sale copies. This statement captures many of Tor’s concerns:

We had discussions with our authors before we made the move and we considered very carefully the two key concerns for any publisher when stripping out the DRM from ebooks: copyright protection and territoriality of sales. Protecting our author’s intellectual copyright will always be of a key concern to us and we have very stringent anti-piracy controls in place. But DRM-protected titles are still subject to piracy, and we believe a great majority of readers are just as against piracy as publishers are, understanding that piracy impacts on an author’s ability to earn an income from their creative work. As it is, we’ve seen no discernible increase in piracy on any of our titles, despite them being DRM-free for nearly a year.

Pogue suggests but does not state outright that DRM is an ineffective strategy for reducing piracy. But he is very explicit that the point of an anti-piracy policy is to increase sales and revenue. DRM-free does not mean without cost. iTunes sells its music even though it dropped DRM. He also points out that his own books have had fared similarly in the market.

If book consumers thought that everyone in the household could easily read the same book (in the manner that a family can share a physical book), it might be more willing to spend money to own the ebook. For works that have no physical cost, the increase in unauthorized copies is not the right metric. The right question is whether more customers will purchase the work. If more copies are sold, the work is more successful, even if more copies are also pirated.

Pogue makes another strong point that the ease of the transaction directly impacts sales. “Friction also matters. That’s why Apple and Amazon have had such success with the single click-to-buy button. To avoid piracy, it’s not enough to offer people a good product at a fair price. You also have to make buying as effortless as possible.” High transaction costs are reasonable only for expensive, infrequent purchases. Weight is a normal force on friction; only weighty purchases should have high friction.

Finally, Pogue addresses the pricing of ebooks. Frankly, he is more generous to the publishers than I would be on this issue by acknowledging the costs associated with “author advance, editing, indexing, design, promotion, and so on” but like the music industry, the investments are declining. The public is likely to value the fair price point of an ebook as a percentage of its physical counterpart. If the physical copy has a secondary market in the used bookstore, then the loss of resale also needs to be factored in for the consumer. Otherwise the consumer is only paying for the convenience of instant access, and if the instant access is undermined by cludgy DRM, there is no value to be had.

Tor heard this from its constituents:

But the most heartening reaction for us was from the readers and authors who were thrilled that we’d listened and actually done something about a key issue that was so close to their hearts. They almost broke Twitter and facebook with their enthusiastic responses. Gary Gibson, author of The Thousand Emperors tweeted: “Best news I’ve heard all day.” Jay Kristoff, author of Stormdancer, called it “a visionary and dramatic step . . . a victory for consumers, and a red-letter day in the history of publishing.”

Tor never says it has become more profitable, but the company does relish the role it is taking in leading the publishing industry towards a more consumer-friendly business model.

The move has been a hugely positive one for us, it’s helped establish Tor and Tor UK as an imprint that listens to its readers and authors when they approach us with a mutual concern—and for that we’ve gained an amazing amount of support and loyalty from the community. And a year on we’re still pleased that we took this step with the imprint and continue to publish all of Tor UK’s titles DRM-free.

So the lesson from Tor is simple – for low-cost impulse purchases DRM doesn’t add value. High quality, fairly priced, and easy to access works will continue to attract a growing market. These are the points of emphasis and differentiation for the marketplace. DRM may be a legal solution, but it is not a sound business strategy.

In its study of Civic Engagement in the Digital Age, it found a significant increase in the use of social media as the method for civic engagement. Pew reports that 39% of American adults have recently contacted a government official or spoken out in a public forum. In addition, an even larger percentage, 48%, participate through some civic group or activity. The definition of civic activity is quite generous and inclusive:

In this survey, the Pew Research Center’s Internet & American Life Project measured several broad categories of civic activity that Americans might engage in. The first finding is that half (48%) of American adults directly took part in a civic group or activity in the 12 months preceding our August 2012 survey. This includes anyone who did one or more of the following six activities:

• 35% of American adults have recently worked with fellow citizens to solve a problem in their community
• 22% have attended a political meeting on local, town, or school affairs
• 13% have been an active member of a group that tries to influence the public or government
• 10% have attended a political rally or speech
• 7% have worked or volunteered for a political party or candidate
• 6% have attended an organized protest

Not surprisingly, the growth of social media had driven an increasing percentage of the public to use these tools.  Pew provided a chart showing the engagement using social media is often the tool to engage with politicians and civic issues:

While social media has become increasingly important, it has not displaced real-world environments for civic interaction and engagement. A second study found that “94% of parents say libraries are important for their children.” 84% of parents with children under 8 say libraries are “very important.” The importance and actual usage of libraries declines for non-parent adults.

Unlike the social media study, however, libraries are more important to those with lower median incomes, because of the resources the libraries provide. Moreover, libraries have become a critical component of the social media landscape because of the computer and technology services they host.

Since reference services and non-lending activities at libraries remain an important factor for libraries, the future of libraries is not all bad. At the same time, however, even for adults with children, 81% borrowed books compared to the 9% who borrowed e-books. Literacy programs and coordination with schools remains an important part of what libraries do.

The two studies also suggests that as libraries reduce their emphasis on physical book collections as e-book lending grows, they can add soft-seating space and serve as a physical home for the growing civic engagement; a place home to both the public and the technology that will make it a natural focus for community building.

Comments from library staff involved in the survey identified many of these trends. Here are only a few:

“We’re definitely an important social place for many groups — children after school, the elderly and retired, job seekers, parents with children. I don’t think we can be just an online presence. Our physical space means a lot to people in our town.”

“The library should be a community center, safe and welcoming for all ages. There should be activities for young families, for young adults (e.g. actual adults, in their twenties), for teens and children who are not involved in a dozen different sports. As one patron said during our book sale/Girl Scout costume swap/high school bake sale/community farm sale—the library was “the place to be.””

“I’m more in favor of blended zones as opposed to separate spaces for different services. Having worked with very diverse clienteles, I found that everyone behaved better in a wider “village” concept. Preschool children aren’t any louder than the senior citizen book club who discuss their ailments and issues in very loud voices in the library. When I was a branch manager, the more furniture and shelving I took out of the branch, the happier the customers were — we only needed many more plug-ins for people to use.”

Of all the information gathered from both surveys, this thought perhaps sums up the potential best –

“Libraries—especially public libraries—should be the great connector. Connecting people with information and the resources they need to make informed decisions about their lives. Connecting people with the resources they need for entertainment. Connecting children to books and the love of reading. Connecting people to their roots and their past.”

Together, civic engagement and civic spaces will continue to thrive both online and in person so long as we as a society invest in what matters most. As always, the children will lead.

The full report on civic engagement is available here.

The full report on libraries – “Parents, Children, Libraries, and Reading” is available here.

Chairman Goodlatte emphasized the evolution of technology and media in his remarks:

The discussions during the early 1900’s over the need to update American copyright laws to respond to new technology were not the first time such discussions occurred and they will certainly not be the last. Formats such as photographs, sound recordings, and software along with ways to access such formats including radio, television, and the Internet did not exist when the Constitution recognized intellectual property. My Committee has repeatedly held similar discussions about new forms of intellectual property as they arose and enacted laws as appropriate. Driven by new technologies and business models, a number of changes to copyright law went into effect in 1976.

No one should expect immediate legislation. As Register of Copyrights, Maria Pallante noted in her recent congressional testimony “a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention.” Even there, the effective date for U.S. adherence to the Berne Convention took until March 1, 1989.

In the decades of negotiation over copyright reform in the past, the tension was primarily between commercial interests of the content industries – film, television, music, and publishing industries with the trade unions, authors, and creative interests. But that focus has shifted dramatically with the rise of the information age.

The defeat of SOPA highlighted the tension between the technology industries – led by the ISPs, Google, Apple, Microsoft, eBay, Facebook, and Wikipedia with the content industries. In this fight, the content industries continue to lose. They could not push ACTA and they have lost in the courts over first sale in Kirtsaeng v. John Wiley & Sons, secondary liability in Viacom Int’l v. YouTube Inc. and Tiffany v. eBay, Inc., and many others.

Even more importantly, the rise of social media and the role copyright now plays – or interferes – in the daily lives of ordinary citizens means that the public’s interest in this debate will be higher than ever. Organized by social media companies like Facebook, LinkedIn, Twitter, Google and hundreds of others, the public will be exhorted to be heard every time they log on or check in. This is a great change for democracy. But we shouldn’t forget that those intermediaries are also the very technology companies that have their own stake in the outcomes.

Register Pallante has indicated some of the critical issues before the Judiciary Committee (though the explanation and approach is mine, not Register Pallente’s):

• First sale doctrine – which could include both (i) a review of Kirtsaeng (2013) which internationalized first sale, and (ii) technologies that allow for a digital forward-and-delete that mimics first sale in the online environment;
• Orphan works – questions about how to handle works for which the ownership information or the transfers of ownership have been lost;
• Library exceptions – addressing digital collections and the ability to gain far greater usage out of far fewer copies;
• Statutory licensing reform – on rate setting and rates;
• Federalization of pre-72 sound recordings – resolving the issues involving retroactive pseudo-copyright protection for these works and the implications on the public domain;
• Resale royalties for visual artists – addressing the conflict with those states which provide these rights and potentially creating national legislation;
• Copyright small claims procedure or courts – adding a mechanism for copyright to be enforceable for small scale claims; and
• Mass digitization of books – addressing the myriad of problems triggered by the intermediate copyright violations of works, the fair use of showing snippets, the procedural issues in the project, and many other concerns.

This list does not include many other potential areas for reform, including some of my preferred topics:

• Explicit free speech and human rights accommodations for the statute, since copyright and First Amendment issues increasingly intersect;
• Expanded fair use or copyright exemptions codified under Section 110 for digitization, reverse engineering, comparative advertising, and others;
• Anti-circumvention (DMCA) reform to prohibit its use for use in commercial products – such as cars, printers, garage doors, and other goods;
• Expanded registration requirements so that most of the economically insignificant works people create daily are outside of the copyright regime;
• Statutory Damage Reform to tie statutory damages more closely to actual damages and separate commercial infringers from consumers;
• Mandatory cease-and-desist system so that no one can be sued for copyright damages unless they have been notified directly the conduct is infringing and continue, after a reasonable opportunity to cure has been provided; and
• Broader non-commercial exceptions to copyright analogous to the public/private distinction of the 1909 Act.

Copyright needs to continue to adjust to address these issues. While the system is not broken, there are many strains. Again, from Chairman Goodlatte:

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

It will be important to be heard on these issues and to think carefully about a system that is good for today’s issues, tomorrow’s challenges and the decades of unanticipated changes the new law will cover.

2014 Law + Informatics Symposium on

Cyber Defense Strategies and Responsibilities for Industry

 The focus of the conference is to provide an interdisciplinary review of issues involving business and industry responses to cyber threats from foreign governments, terrorists, and corporate espionage. The symposium will emphasize the role of the NIST Cybersecurity Framework and industries providing critical infrastructure.

The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues cybersecurity and informatics law as it applies to corporate strategies and the obligations of business leaders. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics relating to the theme, such as the following:

Submissions & Important Dates: 

• Please submit materials to Nkylrsymposium@nku.edu
• Submission Deadline for Abstracts: September 1, 2013
• Submission Deadline for First Draft of Manuscripts: January 1, 2014
• Submission Deadline for Completed Articles: February 1, 2014
• Symposium Date: February 27-28, 2014

Law Review Published Article:  The Northern Kentucky Law Review will review, edit and publish papers from the symposium in the 2014 spring symposium issue.  Papers are invited from scholars and practitioners across all disciplines related to the program. Please submit a title and abstract (of 500-100 words) or draft paper for works in progress. Abstracts or drafts should be submitted by September 1, 2013. Submissions may be accepted on a rolling basis after that time until all speaking positions are filled.

Presentations (without publication) based on Abstracts:  For speakers interested in presenting without submitting a publishable article, please submit an abstract of the proposed presentation. Abstracts should be submitted by September 1, 2013. Submissions may be accepted on a rolling basis after that time until all speaking positions are filled.

Publication of Corporate Handbook on Cyber Defense: The Law + Informatics Institute may edit and publish a handbook for corporate counsel related to the topics addressed at the symposium. Scholars and practitioners interested in authoring book chapters are invited to submit their interest by September 1, 2013 which may be in addition to (or as an adaptation of) a submitted abstract for The Northern Kentucky Law Review. Submissions may be accepted on a rolling basis after that time until all chapter topics are filled.

About the Law and Informatics Institute:  The Law + Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law.

Through courses, symposia, publications and workshops, the Law + Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media, and entertainment, and the public sector.

For More Information Please Contact:

• Professor Jon M. Garon, symposium faculty sponsor and book editor: garonj1@nku.edu or 859.572.5815
• Lindsey Jaeger, executive director: JaegerL1@nku.edu or 859.572.7853
• Aaren Meehan, symposium editor, meehana2@mymail.nku.edu or 859-912-1551

(photo: Wikipedia)

Perhaps triggered by the New York Times coverage of Google Glass, The FTC announced both a call for submissions and a workshop related to the Internet of Things and its implications on privacy, fair trade practice, and security implications for both data and people. The FTC announcement highlights both the benefits and risks of device connectivity.

Connected devices can communicate with consumers, transmit data back to companies, and compile data for third parties such as researchers, healthcare providers, or even other consumers, who can measure how their product usage compares with that of their neighbors.  The devices can provide important benefits to consumers:  they can handle tasks on a consumer’s behalf, improve efficiency, and enable consumers to control elements of their home or work environment from a distance. At the same time, the data collection and sharing that smart devices and greater connectivity enable, pose privacy and security risks.

The issue is not new. The ITU released a 2005 study discussing the implications of the Internet of Things. The ITU described a near, technological future in which “industrial products and everyday objects will take on smart characteristics and capabilities. … Such developments will turn the merely static objects of today into newly dynamic things, embedding intelligence in our environment, and stimulating the creation of innovative products and entirely new services.”

I have previously described some of these concerns in an article, Mortgaging the Meme.[1]

In each of these situations, an automated and consumer-defined relationship will replace the pre-existing activities. In many situations, this will create efficiency and convenience for the consumer, but it will also reduce the opportunities for human interaction and subtly rewrite the engagement between customer and company. Those that understand this change will adjust their technologies to improve the service and increase the customer‘s reliance on its systems. Companies that do not understand how this engagement will occur, risk alienating customers and losing markets quickly.

Beyond consumer interactions, other uses may arise. Ethical and privacy concerns regarding misuse tend to focus on government, business and organized crime. These include unwarranted surveillance, profiling, behavioral advertising and target pricing campaigns. As a result, as companies increasingly rely on these tools, they also bear a responsibility to do so in a socially positive manner that increases the public‘s estimation of the company.

Timing for the FTC submissions and workshop are overdue. Reading the New York Times quote regarding app developers, there is a sense that unlike the technology giants such as Microsoft and Google, the developers are thinking more about the technology’s potential than its potential impact. One such example from the Times: “‘You don’t carry your laptop in the bathroom, but with Glass, you’re wearing it,’ said Chad Sahlhoff, a freelance software developer in San Francisco. ‘That’s a funny issue we haven’t dealt with as software developers.’”

Many fields will benefit from increased device connectivity. Just a few:

• Public transportation systems designed around real-time usage and traffic patterns.
• Prescription monitoring to help patients take the right medications at the correct time.
• Fresher, healthier produce.
• Protection of pets and children.
• Social connectivity, with photo-tagging and group-meeting moving into the real world.
• Interactive games played on a real-world landscape.

There are also law enforcement uses that must be carefully considered. After the Boston Marathon attack, for example, calls for public surveillance will undoubtedly increase, including calls for adding seismic devices and real-time echo-location. Gunshots, explosions, and even loud arguments could become self-reporting.

Common household products sometimes become deadly in large quantities. RFID technology could be used to monitor quantity concentration of potentially lethal materials and provide that data to the authorities.

The consumer use, public use, and law enforcement use must be thoughtfully reviewed to balance the benefits of the technology with the intrusions into privacy and the legacy of retrievable information that such technology creates.

FTC staff will accept submissions through June 1, 2013, electronically through iot@ftc.gov or in written form. The workshop will be held on November 21^st. These are the questions posed by the FTC thus far:

• What are the significant developments in services and products that make use of this connectivity (including prevalence and predictions)?
• What are the various technologies that enable this connectivity (e.g., RFID, barcodes, wired and wireless connections)?
• What types of companies make up the smart ecosystem?
• What are the current and future uses of smart technology?
• How can consumers benefit from the technology?
• What are the unique privacy and security concerns associated with smart technology and its data?  For example, how can companies implement security patching for smart devices?  What steps can be taken to prevent smart devices from becoming targets of or vectors for malware or adware?
• How should privacy risks be weighed against potential societal benefits, such as the ability to generate better data to improve healthcare decision making or to promote energy efficiency?
• Can and should de-identified data from smart devices be used for these purposes, and if so, under what circumstances?

While the FTC has asked some good questions, they are only the beginning. Please submit your thoughts and join the FTC conversation.

Ms. Taymor, the Tony Award-winning director of “The Lion King,” was fired from the $75-million “Spider-Man” production in March 2011 amid disputes over changes to the show’s script and staging. In November, Ms. Taymor filed a breach of contract suit against the musical’s lead producers, Michael Cohl and Jeremiah J. Harris, saying that they were continuing to profit from her creative contributions to the show without compensating her. Mr. Cohl and Mr. Harris filed a countersuit in January saying that she violated the terms of her contract and “could not and would not do the jobs” she was hired to do, and thus was not entitled to further royalties.

Last September, the parties “reached an agreement in principle,” according to a statement issued by the U.S. District Judge Katherine Forrest overseeing the trial. But the final agreement required an additional four months of negotiations. The delay likely comes from the conflicting nature of the parties’ interests and uncertainty over the value of the $75 million dollar property.

Although the stage musical has achieved some weeks with grosses in excess of $1 million, it is unclear whether it is significantly profitable on most weeks. Assuming it is, at a profit of $150,000 per week (a considerable sum for Broadway), it would need to run over 9½ years to break even. For the investors, that is a monstrous timeline.

Royalty participants like Bono, the Edge earn income each week, so the length of the run matters more than its profitability, though complex formulae used in the Approved Production Contract for Musicals offsets some of this disparity.

More importantly, for the producers and investors, is the ability to restage and cut the musical so that its costs can be tamed and the production repackaged for other cities and for tours. The settlement of the copyright action by Ms. Taymor presumably allows the producers to use and to modify her material so that the show can be streamlined and packaged for other venues.

Despite the many accidents during development and the generally bad reviews, Spider-Man is reportedly a “fan favorite” according to the Times. Profitability will not likely come from Broadway, so the producers need this settlement to take their show on the road and lower their costs.

For other creators, seeking to learn from the settlement, what might such settlement negotiations entail?

1. Approval rights. A director may have approval rights over the use of various copyrighted elements in the production. A settlement agreement must terminate all future approvals.

2. Copyrighted elements. Generally a director does not contribute works that are protected by copyright. The Approved Production Contract provides very explicitly that the playwright (including the composer and lyricist for musicals) solely owns the copyright. General staging is not copyright protected, though choreography is protectable by copyright. All choreography and any staging should be licensed to the production to make the settlement effective.

The license must include both the right to publicly perform so that the productions can continue to be shown on stage; to reproduce so that any DVDs of the production can be sold; and to modify, so that the work can be changed as needed to accommodate new venues and new performers.

3. Contractually protected elements. The director of a play or musical will have protections provided by contract that go beyond copyright. Ideas on staging, conceptual approaches to the material and other elements that fall outside of copyright may still be covered by contract. The production contract should be superseded by the settlement agreement; all rights protected by the contract should be transferred; and any other claims waived.

4. Non-disparagement and credit.  There are two sides to every break up. Both parties are likely at fault and neither side is completely true. As such, the settlement agreement must protect both sides – particularly the individuals – from negative statements or efforts to paint the other side as unprofessional or wrong. A key component of this is affording credit to everyone involved. There may be an additional wrinkle because new participants have been hired to complete work started by those leaving the production. In some cases, the amounts of relative contribution are balanced by the applicable union and credit is arbitrated through the union agreement. In most cases, however, the settlement should itself provide some credit for everyone – with an effort to be generous to the leaving parties.

5. Payment. Ideally, the settlement of any creative dispute will include a payment of a fixed sum, so that the parties can be done interacting and so all future accounting obligations are avoided. If the future revenues (or profitability) are too uncertain, then future participation may be necessary. Even if the settlement provides for payments based on future revenues, the parties are better off with a royalty based on weeks performed or grosses earned than the more subjective definition of profits. Nothing will guarantee a return to the courtroom faster than a net profits settlement provision and a very successful run.

The actual settlement involving Spider-Man has not been disclosed. Still, these five key provisions are likely the topics identified by all the parties. Participants like Marvel needed to be sure the settlement did not change the producer’s obligations or harm its interests, while the producers and Ms. Taymor had a great deal of economic, professional and emotional issues to address. Does this mean Spider-Man will soon be coming to a town near you? It opens the possibility. Now the producers need to translate their $75 million enterprise into a smaller, simpler but audience-thrilling experience.

Like any creative endeavor, these projects always take time.

As the New York Times reports, “police officers across the city checked their accounts to see if anything they had posted might run afoul of the new rules. Some edited their personal accounts to remove references to the department.” The Times quoted Roy T. Richter, president of the Captains Endowment Association. “Such an order is not unexpected. The only surprise is that the order was not put out before now.”

The new policy comes on the heels of incidents in which very public incidents involving social media, including racially inappropriate tweets that led to the resignation of the fire commissioner’s son. Kelly denied the policy was a direct result of the incident, saying the order’s development predated this latest incident.

Robert Gonzelez, a police training expert at John Jay College, has been quoted as saying the guidelines constitute “unauthorized censorship. Members of the NYPD are proud public officials and should be authorized to express that right on social media sites without retribution.

The NLRB has been very aggressive in voiding social media policies that interfere with the rights of workers to organize. The Operations Management Memo has found most social media policies overbroad. Among the limitations on social media policies, employees have the right to wear company logos even when protesting working conditions. Policies that prohibit their right to self-identify as employees or to wear uniforms outside of work are a violation of these rights.

Compare those policies to the NYPD guidelines as reported by the New York Times:

The policy restricts posting photos of other officers, tagging them in photos or putting photos of themselves in uniform — except at police ceremonies — on any social media site.

Employees are “urged not to disclose or allude to their status” online. Disclosing one’s employment could result in that person being ineligible for certain sensitive roles.

The New York Times correct lists other aspects of the policy as good practice and appropriate: “Do not post images of crime scenes, witness statements or other nonpublic information gained through work as a police officer; do not engage with witnesses, victims or defense lawyers; do not “friend” or “follow” minors encountered on the job.”

Once the initial bad press of online misuse fades, the issues of government limitations on employee’s social media will again rise to the surface as a significant issue for employment in the public sector. The NYPD guidelines provide fuel rather than direction for this debate.

• Sports, weather and traffic now account on average for 40% of content
• Newsroom cutbacks in 2012 put the industry down 30% since its peak in 2000
• Some media outlets, such as Forbes magazine, use technology by a company called Narrative Science to produce content by way of algorithm
• Media campaign reports were primarily megaphones, rather than investigative journalism

In response to the declines, the Center reports, “nearly a third of U.S. adults, 31%, have stopped turning to a news outlet because it no longer provided them with the news they were accustomed to getting.”

There is some financial restructuring of the industry as well. In most cases, however, the restructuring moves revenue away from news media and towards aggregators such as Google and Facebook. Economically this is another situation where the company providing the conduit for content receives the revenue rather than the individuals and companies providing the actual content. The other good news is the slight increase in Sunday newspaper subscriptions and the end to the decline in overall newspaper sales.

In total, however, the report makes clear that while there is more information than ever before, there is less in-depth news coverage.

In a report published last year, the Pew Center reported found that “for every $1 newspapers were gaining in digital ad revenue, they were losing $7 in print advertising” and the gap grew to $16 in print losses for every digital dollar gained by the end of the 2012. Some papers are returning to pay walls to offset the losses; others are accelerating their cost-cutting in print and reporting expenses to pay the gap.

While digital revenues continue to grow, the income is not fueling journalism. Instead, it pays for mobile devices, social media and search. While each of these has benefits, journalism has a uniquely important role in society – unfortunately that role will continue to shrink as budgets wane, reports become more superficial, audiences erode, budgets shrink in response – and the cycle goes inexorably downward.

iPad Newsstand provides some revenue to the publishers, but at a steep price to the Apple newsstand vendor. Zinio and Kindle are also out there.

Perhaps it is time to rethink what we pay for with our home entertainment dollars. Maybe the bundle of services will cover a few dozen fewer unwatched cable channels and put a few cents into the digital edition of the local paper. Certainly it is time to rethink media ownership and financing rules for the digital market.

Updating guidance known as Dot Com Disclosures, which was released in 2000, the new FTC staff guidance, .com Disclosures: How to Make Effective Disclosures in Digital Advertising, takes into account the expanding use of smartphones with small screens and the rise of social media marketing.  It also contains mock ads that illustrate the updated principles.

Like the original, the updated guidance emphasizes that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio, or print.

FTC Guidance on online advertising, like that for the Endorsement Guides affecting testimonials, blogs, social media marketing and celebrity endorsements, remains premised on the ability of the FTC to identify those specific steps that are likely to violate Section 5 of the FTC Act. Section 5 (15 USC 45) prohibits “unfair or deceptive acts or practices in or affecting commerce.” The Federal Reserve summary of the rule and compliance evaluation is a very helpful tool for all advertisers, not just banks. Violations of the guidelines are not illegal, merely indicators that Section 5 has been violated. In reality, however, most enforcement actions never go to trial. The FTC enters into determinations, levies fines and establishes injunctive relief and specific performance which may significantly intrude on business practices. Most companies agree to these terms rather than facing potentially harsher and more costly litigation. As such, the guidelines are much more than mere advisory guidelines.

The new guidelines attempt to remind advertisers that disclaimers and additional terms must be near claims and specific even in the constrained space of mobile advertising:

If a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous.  Under the new guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad.  The new guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used. …

The new guidance points out that advertisers using space-constrained ads, such as on some social media platforms, must still provide disclosures necessary to prevent an ad from being deceptive, and it advises marketers to avoid conveying such disclosures through pop-ups, because they are often blocked.

The guide is long and full of detailed examples. But the list of rules is actually quite intuitive. These are probably the most important:

1.         To make a disclosure clear and conspicuous, advertisers should:

• Place the disclosure as close as possible to the triggering claim.
• Take account of the various devices and platforms consumers may use to view advertising and any corresponding disclosure.  If an ad is viewable on a particular device or platform, any necessary disclosures should be sufficient to prevent the ad from being misleading when viewed on that device or platform.
• When a space-constrained ad requires a disclosure, incorporate the disclosure into the ad whenever possible.  However, when it is not possible to make a disclosure in a space-constrained ad, it may, under some circumstances, be acceptable to make the disclosure clearly and conspicuously on the page to which the ad links.
• When using a hyperlink to lead to a disclosure,

• make the link obvious;
• label the hyperlink appropriately to convey the importance, nature, and relevance of the information it leads to;
• use hyperlink styles consistently, so consumers know when a link is available;
• place the hyperlink as close as possible to the relevant information it qualifies and make it noticeable;
• take consumers directly to the disclosure on the click-through page;
• assess the effectiveness of the hyperlink by monitoring click-through rates and other information about consumer use and make changes accordingly.

• Preferably, design advertisements so that “scrolling” is not necessary in order to find a disclosure. When scrolling is necessary, use text or visual cues to encourage consumers to scroll to view the disclosure.
• Keep abreast of empirical research about where consumers do and do not look on a screen.
• Recognize and respond to any technological limitations or unique characteristics of a communication method when making disclosures.
• Display disclosures before consumers make a decision to buy — e.g., before they “add to shopping cart.” Also recognize that disclosures may have to be repeated before purchase to ensure that they are adequately presented to consumers.
• Repeat disclosures, as needed, on lengthy websites and in connection with repeated claims. Disclosures may also have to be repeated if consumers have multiple routes through a website.
• If a product or service promoted online is intended to be (or can be) purchased from “brick and mortar” stores or from online retailers other than the advertiser itself, then any disclosure necessary to prevent deception or unfair injury should be presented in the ad itself — that is, before consumers head to a store or some other online retailer.
• Necessary disclosures should not be relegated to “terms of use” and similar contractual agreements.
• Prominently display disclosures so they are noticeable to consumers, and evaluate the size, color, and graphic treatment of the disclosure in relation to other parts of the webpage.
• Review the entire ad to assess whether the disclosure is effective in light of other elements — text, graphics, hyperlinks, or sound — that might distract consumers’ attention from the disclosure.
• Use audio disclosures when making audio claims, and present them in a volume and cadence so that consumers can hear and understand them.
• Display visual disclosures for a duration sufficient for consumers to notice, read, and understand them.
• Use plain language and syntax so that consumers understand the disclosures.

2.         If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of a Commission rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated. This means that if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures.