Israeli Court Says Course Ads Are Not Copyrightable; Aggregating Them Is Legal

from the makes-sense dept

Over at Eric Goldman's blog, Israeli lawyer Yoram Lichtenstein has written up a discussion of two Israeli rulings concerning copyright on advertisements (Lichtenstein was a lawyer in the second case, so he's not a neutral observer -- though his writeup appears to be quite neutral, much more so than I would have expected). The first case, from a few years ago, involved a website that collected job ads from various sources, including various local newspapers. The newspapers sued, but the court noted that it wasn't clear that the job ads were even covered by copyright -- and even if they were, the copyright wouldn't be held by the newspapers who were suing, but by the advertisers.

The more recent case delved deeper into that original question of whether or not ads are copyrightable. It involved a site, called Hug, that aggregated "a directory of leisure activities and courses" from a variety of different sources. Nine advertisers apparently sued the company for copyright infringement. Beyond wondering why advertisers would ever get pissed off at a site that would advertise them for free, and help drive more business to them, Hug also noted that it provided a lot more information than just what it pulled from elsewhere. But the key question was whether or not the information in the ads was covered by copyright at all.

Thankfully, the court said no (for the most part):

The court decided that the course listings lacked originality (or creativity); usually they include only "dry" data. The court emphasized that although previous decisions did not demand very much creativity, ads still need at least some creative value to become copyrightable. Thus, "the advertiser holds no rights in the content of the advertisement, in a manner that enables to prevent other billboards and index sites to publish the ad without her authorization" (my translation).

The court used, as an example to explain why the course descriptions were not copyrightable, a course description for sculpting sugar-figures for cakes. The text was (my translation, again): "Figure sculpturing workshop, consisting of two 5 hours encounters, each. The workshop emphasizes female and male proportions. First meeting shall include preparing the cake-base, and a winter male figure with proper clothes and accessories. On the second encounter we will prepare the female summer spouse, accessorized as well. At the conclusion of this fun activity each shall have the original couple s/he created."

This seems mostly in line with US copyright law that does require some level of creativity above basic facts to qualify for copyright. At the very least, it's good to see yet another smart copyright ruling in Israel.

Filed Under: ads, aggregating, copyright, israel

If Lindsay Lohan Deserves Any Money From E*Trade, It's Probably For Making Its Ad So Popular

from the milkaholics-anonymous dept

A few weeks ago, we wrote about Lindsay Lohan's bizarre lawsuit against E*Trade over a commercial with a talking baby named Lindsay that Lohan insisted was actually supposed to be her... mainly due to a reference to her being a "milkaholic." This resulted in a series of interesting points -- including the fact that many, many, many people who saw the commercial made absolutely no association with Lohan at all, especially given that Lindsay is a decently popular name. But, many people also wondered if this was really some bizarre marketing scheme for both E*Trade and Lohan -- and if that's true, then it worked. m3mnoch points out that the commercial in question shot to the top of the "most viewed online commercial" list. I doubt that E*Trade will owe any money to Lohan for the lawsuit, but perhaps it should pay up for the "ad placement."

Filed Under: ads, commercial, lawsuits, lindsay lohan, streisand effect
Companies: etrade

FIFA Demands Airline Drop Ad That Didn't Mention FIFA At All

from the unofficial-sponsor-of-you-know-what dept

Earlier this year, we wrote about how the Olympics, notorious for trying to control everything associated with the Olympics to block anyone from doing any marketing around the games if they haven't paid up, got upset at company selling a t-shirt that read:

"Cool Sporting Event That Takes Place in British Columbia Between 2009 and 2011 Edition."

Now it looks like something similar has happened with the World Cup and the South African airline, Kulula. Kulula, if you don't know, is somewhat famous for its sense of humor. In particular, I really like the way the company recently redesigned one of its airplanes as "Flying 101": Along those lines, the airlines decided to make a joke of the limits that FIFA struck on sponsors of the World Cup and put out an advertisement calling itself the:

"Unofficial National Carrier of the You-Know-What."

And, along with that it included images of stadiums, national flages and vuvuzelas (a type of horn regularly blown at football matches in South Africa). FIFA apparently sent a threat letter demanding Kulula pull the ad, calling it "ambush marketing." Apparently, FIFA has no sense of humor. After people got annoyed, FIFA put out a silly statement saying that it never said the airline couldn't use certain words or symbols -- but it just couldn't use them all in combination.

Of course, you have to imagine that all the additional attention to Kulula thanks to this "controversy" doesn't bother the airline one bit...

Filed Under: ads, trademark, world cup
Companies: fifa, kulula

Rescuecom Declares Victory... In Dropping Its Lawsuit Against Google

from the some-victory dept

We've covered some of Rescuecom's bizarre lawsuit against Google for selling Adwords based on Rescuecom's trademarks. The lawsuit has been going on for a while, without Rescuecom getting very far. At almost every turn it was pointed out that what was happening was not trademark infringement. Finally, after many years, Rescuecom has given up and dropped the case... but in the process it's declaring "victory" in the lawsuit. Seriously. The explanation for the "victory"? That Google now lets trademark holders remove trademarks from the "keyword suggestion" tool. Only problem? Google enabled this in 2005.

Basically, the more likely story is that Rescuecom knew it was going to lose and just gave up and declared victory.

Oh, and also, just a few months ago, we noted that Rescuecom was on the other side of nearly an identical lawsuit, in which it was buying ads on Best Buy trademarks (hypocrisy much?). Being involved in two lawsuits at the same time where you're making totally contradicting arguments isn't likely to end well. So it seems likely that given the two lawsuits, and the likelihood of losing the Google one, Rescuecom threw in the towel on that one and then pretended it "won" for the sake of a press release. Based on that logic, can we declare "victory" in our decision not to sue Rescuecom for insulting our intelligence?

Filed Under: ads, adwords, liability, trademark
Companies: google, rescuecom

MySpace Replaces All iMeem Playlists With Ads -- Doesn't Ask Permission

from the is-that-legal? dept

With MySpace buying up some of iMeem's assets (and leaving many musicians with little hope of getting paid what they're owed), one of the big complaints was that all of iMeem's public playlists simply disappeared overnight. This was particularly obnoxious, because plenty of people had relied on iMeem for legal music streaming of playlists they had put together. It appears that last week MySpace decided to add insult to injury and quietly started replacing all iMeem playlists with giant ads. I just checked the one iMeem playlist I had created on a different blog, and, sure enough, in its place was a giant flash ad for Beyonce ringtones.

This should be a warning for anyone using any third party widget maker for placing content on your site. You're basically giving others control over what they display on your site, but it's particularly obnoxious to replace something like a music playlist with an advertisement. Many sites that included iMeem playlists were non-commercial, and sneaking ads into them could potentially impact other issues. As we were recently discussing, Vimeo says that you can't post its videos to sites with ads (even though it seems to ignore most people who do). But what if you had Vimeo videos on a site that also had an iMeem playlist? Suddenly that site has "gone commercial" with ads, even though the owner of the site might not even realize it.

As many people are claiming that streaming services like Spotify and the now-Apple-owned Lala are "the future of music," including their ability to post streamable playlists, it's worth remembering what happened in this instance. It's certainly making me think twice about ever using a third party app for streaming content, knowing that they might just replace it with an ad down the road.

Filed Under: ads, embedded music, music streaming, playlists, third party apps
Companies: imeem, myspace

Yet Another Attempt At Ad Supported Music

from the if-it's-more-annoying,-it-won't-work dept

Back in October, we wrote about plans for yet another "free, but ad supported" music download startup, but didn't see how the economics could work out. That site, FreeAllMusic, is apparently now getting set to launch, but it still doesn't make much sense to us. Basically, you can download music (two of the four major labels have signed up) for free -- and it's not encumbered by DRM (that's good), but you have to sit through some sort of video ad before you can get the music and you are limited in how much music you can download. The site's CEO claims "We have made this process easier than stealing."

We'll ignore the confusion (most likely intentional) about the difference between infringement and "stealing" and focus on all the other problems with this service. First of all, it's not easier than infringing. You have to sit and watch an ad. You don't have to do that on file sharing networks. Second, the assumption behind the service is that people would use this the same way they use iTunes: meaning only a very small number of downloads per month. Initially, that means 20 downloads per month, total, and no more than five per session. That may be how people use iTunes, but that's because each download costs money in iTunes. One of the reasons people prefer file sharing systems is because they're not limited that way and can really easily sample lots of music quickly.

But the biggest problem with this concept remains with the basic economics. Since the argument remains the same as I stated a few months back, I'll just repeat it:

You've got the record labels, who are used to getting approximately $0.67 per downloaded song. Assuming that needs to be made up by the ad (and even ignoring any profit for the site), then every single ad shown needs to cost that same $0.67. Translated into traditional ad terms, that's a CPM of $670. Yikes. I don't know any advertiser will to pay anything close to that -- even if it's targeted and you have a half decent chance of the person paying attention. Most CPM ad rates online these days are in the sub-$5 area. Convincing advertisers to jump to a $670 CPM on an unproven model? Good luck.

I'm all for experiments and new business models -- especially those that make use of free music. I just don't see this particular one getting very far. The economics are just not that compelling for anyone involved.

Filed Under: ad supported music, ads, business models, downloads, economics, free, music
Companies: free all music, freeallmusic

Amazon Sued Over Google Ads Bought By Affiliates

from the this-won't-last-long dept

Ah, yet another lawsuit over Google ads. These just never seem to stop. The latest, found via Michael Scott, has a few interesting elements, however. In this case, a small online retailer of used cameras and electronics, Sellify, is suing Amazon, not over its own ads, but ads of Amazon affiliates. The two main complaints are over trademark violations of buying keywords, and then defamation. Defamation? Yes, because apparently when people do searches on Sellify or some of its related trademarked names, like OneQuality, some of the ads that come up say things like:

Beware of the SCAM Artist
Camcorders at the Best Price
From the Trusted Source
amazon.com

So that's a bit different than the usual keyword advertising claim. The only problem, of course, is that these ads are placed by Amazon affiliates, and any defamation claim almost certainly should fall under a Section 230 safe harbor that protects Amazon. The claims in the lawsuit that Sellify notified Amazon are meaningless. Basically, Sellify is suing the wrong party. They might have an argument if they sued the affiliates in question, but they appear to have chosen to focus instead on the big, easy target. But, the whole purpose of Section 230 is so that you can't just focus on the big, easy target, but have to sue those actually responsible.

Now, trademark claims, however, are not covered by Section 230, so we're back to the standard legal questions in these sorts of competitive keyword advertising claims. But this has been covered a lot, and many courts have found that there is no trademark violation in competitive ads on trademarked keywords, so it's hard to see that one getting very far either. It seems like the only argument the company might have is a potential defamation claim if it were filed against the affiliates. But the lawsuit against Amazon seems like a long shot.

Filed Under: ads, defamation, section 230, trademark
Companies: amazon, google, onequality, sellify

Is Google Going Too Far In Latest Advertising Bans?

from the a-little-explanation-would-be-nice dept

We've been talking a bit about some of the communications problem Google seems to have at times, often not doing a very good job communicating with the public on things that may impact them greatly. Here's yet another example, sent in by Ryan, who notes that many people have recently been kicked out of Google's AdWord program with no recourse or explanation.

Now, it seems pretty clear that Google is trying to block "bad" advertisers who are somehow lying or cheating the system -- and that's a good thing. But these sweeping bans seem to be catching plenty of legitimate advertisers, and even more frustrating than the "ban" itself is the fact that as many times as you attempt to get them to explain why you were banned or ask for your case to be reconsidered, the company's response is, effectively, to tell people: "You were banned for being bad, and you will never advertise with us again. Goodbye." While I'm sure plenty of the banned accounts were banned for nefarious activity, it seems ridiculous to do a permanent and total ban with no explanation whatsoever. Google has been known to do this before (certainly many folks who use AdSense have received similar notices with the same lack of info or recourse). It's just a shame, because it's the sort of thing that Google could do right, and seems to have chosen not to.

Filed Under: ads, bans, communications
Companies: google

Dallas News Decides That Journalists Should Report To Ad Sales

from the church-and-state-is-soooo-last-millennium dept

John Obeidin points us to the news that The Dallas News has basically wiped away the standard "church" and "state" separation of journalists and ad sales and has reorganized such that editorial and journalism positions now report to ad sales managers (nicely renamed "general managers"). Of course, historically, newspapers have always been clear to separate the two. There's no reason why this needs to be the case, but it can certainly raise questions about the objectivity of the reporting.

Of course, it's interesting that this is happening just days after those new FTC guidelines on making it clear if content is somehow sponsored. So, will the Dallas News now need to be more clear about its advertising partners, since the paper is now admitting that its editorial content will now be closely tied to its advertising relationships?

Filed Under: ads, church and state, journalism
Companies: dallas news

Advertising As Content: Newspaper Raising Newsstand Prices For Thanksgiving Papers With Black Friday Ads

from the gotta-do-something dept

With newspapers struggling with declining sales and subscriptions, it seems that a few of the major newspaper chains have realized that when they have a newspaper with something of real value to a lot more people than usual, perhaps it makes sense to bump up the prices. Both Tribune Co. and E.W. Scripps are planning to raise the newsstand price of Thursday's paper, treating it like a standard Sunday paper, recognizing that many people want the paper just for the ad circulars that detail "Black Friday" sales. In some ways, it's yet another point of evidence that ads (relevant ones) represent content -- in this case, content that a lot of people are apparently willing to pay for.

Filed Under: ads, advertising is content, black friday, content is advertising, newspapers, sales