A Dystopian Future Of Ads That Won't Stop Until You Say 'McDonald's' Could Be Avoided With More Transparency

from the and-control dept

I've discussed in the past how many people mistake privacy as some sort of absolute "thing" rather than a spectrum of trade-offs. Leaving your home to go to the store involves giving up a small amount of privacy, but it's a trade-off most people feel is worth it (not so much for some uber-celebrities, and then they choose other options). Sharing information with a website is often seen as a reasonable trade-off for the services/information that website provides. The real problem is often just that the true trade-offs aren't clear. What you're giving up and what you're getting back aren't always done transparently, and that's where people feel their privacy is being violated. When they make the decision consciously and the trade-off seems worth it, almost no one feels that their privacy is violated. Yet, when they don't fully understand, or when the deal they made is unilaterally changed, that's when the privacy is violated, because the deal someone thought they were striking is not what actually happened.

And, unfortunately, it often seems like people are increasingly being pressured into deals they don't fully understand and don't have full control over. Michael Price, over at the Brennan Center for Justice, took the time to actually read through the "privacy policy" on his new "smart" TV and it's terrified him. Just the fact that a TV even has a privacy policy seems oddly terrifying, but it makes sense, given that at least some information goes outbound as part of the "smarts." But how much? Potentially a lot more than people would expect:

The amount of data this thing collects is staggering. It logs where, when, how, and for how long you use the TV. It sets tracking cookies and beacons designed to detect “when you have viewed particular content or a particular email message.” It records “the apps you use, the websites you visit, and how you interact with content.” It ignores “do-not-track” requests as a considered matter of policy.

To some extent, that's not really all that different than a regular computer. But, then it begins to get creepier:

It also has a built-in camera — with facial recognition. The purpose is to provide “gesture control” for the TV and enable you to log in to a personalized account using your face. On the upside, the images are saved on the TV instead of uploaded to a corporate server. On the downside, the Internet connection makes the whole TV vulnerable to hackers who have demonstrated the ability to take complete control of the machine.

More troubling is the microphone. The TV boasts a “voice recognition” feature that allows viewers to control the screen with voice commands. But the service comes with a rather ominous warning: “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party.” Got that? Don’t say personal or sensitive stuff in front of the TV.

You may not be watching, but the telescreen is listening.

Now, yes, some of that certainly can be useful in creating interesting features and services. And, frankly, almost all of the same things can be said about the smartphone in your pocket with Siri or Google Now listening in to anything you say at any moment's notice. But at the very least, with those smartphone systems people tend to see and understand the immediate benefits: they use those tools to get information and they're fairly easy to turn off without creating other problems. With the TV, it seems to be more of the promise of potentially providing some future service -- but it's still willing and ready to listen in the meantime.

This is certainly not to argue that the technology is bad, but that these sorts of things shouldn't be hidden in a 46-page privacy policy that no one is going to read. People should be fully aware of what the deal is, and they should have control over how it's used, with some granular controls: maybe let people set the times in which the TV's "ears" are on -- so that maybe it only works during prime time when you're likely to use the TV. Or let people have access to the logs and data that it's snarfing up so they can view for themselves how it's being used. Make sure that the people using it have both transparency and control, and suddenly this becomes somewhat less scary (well, until the NSA goes to the FISA court to use Section 215 to get all the "metadata" from all your smart TVs.)

And, of course, just as I was finishing up with that article, I came across a report of a patent from Sony from a few years ago. It actually got some attention back in 2012 for describing a system in which your TV may ask you to say the advertiser's name to end a commercial. This figure in the patent is the one that quite reasonably got plenty of attention. Perhaps it's no surprise that some companies are considering something like this. In fact, some of the underlying ideas aren't totally crazy. We've long argued that good advertising is about making it good content, and making ads that are interactive and fun is one way to do that. Of course, I don't quite see how the above scenario is very much fun. To me, it sounds horrifying, but others may disagree.

Either way, it's become quite clear that while the world is becoming more connected -- between our computers, our phones, our TVs and much more, people are increasingly going to run into challenges around privacy. And, while some are going to jump to the conclusion that any information gathering and sharing is automatically bad and dangerous (or just crazy), it's going to be important to recognize the trade-offs inherent in these new devices and services. If companies don't want the public to totally freak out, they'd do well to make these processes much more transparent, clear and controllable by the users themselves. Unfortunately, we're not quite there yet. The focus is still on hiding these things out of a fear that no one would use them if they knew what they were giving up. That seems like a recipe doomed to create privacy panics, rather than one that actually enables innovation to advance and which lets the public be comfortable with the choices they're making.

Filed Under: advertising, future, privacy, smart tvs, transparency

This Post Is Not About GamerGate

from the it's-about-ethics-in-journalism dept

1. Okay, let's get this out of the way first: as you'll quickly see, there is no way to write this post without someone accusing us of being hypocritical -- so we're going to just get it out of the way upfront and note that that's absolutely true, as the article we'll be linking to also admits that such hypocrisy is occasionally necessary in reporting. We hope that the reasons for why we're doing this post are clear in the text below, so going hogwild in the comments claiming hypocrisy won't be particularly productive. We know. We get it.
   
   
2. This post really is not about GamerGate. It is really about ethics in journalism (I know, I know). We have no real interest in writing about the whole GamerGate thing at all, because almost none of it is interesting and almost all of it is incredibly, mind-bendingly stupid, no matter what position you're arguing. So, I'm really hoping -- while recognizing this hope will likely not be realized -- that the comments on this post won't actually be about GamerGate or any sort of debate about the merits of one side or the other, but rather about what this article is really about, which is the journalism coverage.

With that out of the way, as noted, we haven't been covering "GamerGate" at all, in part because the whole thing is just kind of ridiculous. There are a lot of wild accusations being thrown around on all sides, and a lot of really bad actions and statements by a lot of people, leading to lots of other wild accusations. Some of the accusations are true, some are not true, many are wildly misleading. But the other reason we haven't been covering it is because it's covered to death everywhere else -- to an almost insane level. And that's what we're talking about today, based on a great article by Jason Koebler over at Vice's Motherboard, noting that so much of the coverage exists because writing something about GamerGate appears to drive a ton of traffic. And in the stupid click-driven world that many publications live off of these days, you do what brings in the traffic (disclaimer: see point 1 at the very top of this post):

The dirty secret here is that, unlike a story about Ebola or Monica Lewinsky or basically anything else anyone writes about, writers and editors can be assured that their GamerGate coverage gets a disproportionate amount of traffic. As far as online journalism gambling goes, it's one of the safer bets you can make.

That's because GamerGate story readership isn't the general public: It's the people who are in the movement itself. For proof of this, look at the fact that the vast majority of GamerGate coverage have hundreds and even thousands of comments—almost all of them from people in the movement.

But it's not just about GamerGate. It's about the way that online news has developed into this traffic-whoring stage, with lots of publications all rushing to cover "the thing that will bring traffic."

Apple announcing an iPhone is news, sure. But Apple announcing an iPhone and breathlessly writing 50 blog posts and a ~live blog~ and an instant analysis and hot takes is when reporting stops being reporting and starts becoming the journalistic equivalent of putting chips on every single number in roulette hoping Reddit or Facebook or someone else picks your story to win that day’s internet traffic lottery.

And, you know, it's not just tech journalism either:

The side effect of this is that the world starts thinking that every time the  House votes to repeal Obamacare or every time Congress holds a hearing about Benghazi or every time John Oliver TOTALLY EVISCERATES someone every time a fringe scientist says climate change isn’t real or every time a normal person or government agency joins Twitter or every time a celebrity gets plastic surgery or every time some internet nerds can rile up a Gawker writer on Twitter is capital-I Important.

They're all attempts to "win the social media lottery" to have a story go "viral" and suddenly have a lot more traffic.

Frankly, this is stupid. And it's something (again, disclaimer above) we mostly try to avoid. There are a few of our regular critics who accuse us of being traffic whores ourselves (and I imagine a few of them may be rushing to comment as such on this article). They claim that we write what we write to get traffic. But here's a dirty little secret for you: if you want a lot of traffic, writing about intellectual property law, free speech, international trade agreements and regulatory capture isn't the best way to get it. We've never covered a big Apple event. While we'll occasionally attend an event, we tend to write about it a day or two later, after we've had a chance to let things sink in. And we try (though we don't always succeed) to provide a different take on things. We add our opinion (or, as the critics explain, we "spin" or report things in a "biased" way). We try to only write about stories that we actually think are interesting (and, even then we only get to about a third of the stories we actually think are interesting).

As a result of that, I hope that the people who read this site tend to be more loyal and actually more interested in what we have to say (and often more willing to join in the discussion and join the larger community). But, that's not how many media publications work today. It's all about the "metrics" -- the number of visitors, and with the social media firehose so big, the focus has been moving aggressively towards that viral lottery. That's not to say we don't keep tabs on our own traffic -- because of course we do. But we know that getting a big story on Reddit means a flood of people who visit for 30 seconds and move on. Our loyal readers are the ones who stick around, and hopefully it's because we're not providing one of fifty different stories about the same damn thing with the same "journalistic" take (i.e., without any color, without any opinion and without any heart). Our position may not be great for advertisers. I've had discussions with potential advertisers, explaining how we have a really loyal community, and most of them don't seem to care. They just want bigger numbers, even if those bigger numbers are meaningless, because the audience doesn't give a shit. I would think that having a loyal, interested and committed community would be a lot more interesting to advertisers, but so many play the same stupid numbers game, and that leads so many publications to do the same.

There are a few publications that have clearly recognized that the hamster wheel chase of rewriting the identical story over and over again while adding nothing new is not worth it. It's been great to see and I've been encouraged by some publications that have really focused on building a loyal audience through doing something different and providing more value. But, for many, it's all about a single metric: traffic. Then it starts to feel a lot less like journalism or something socially valuable. It just feels like... well... a game.

For years, we've talked about how few seem to recognize that real journalism is about the community, not about "the news." I'm hopeful that more people begin to recognize this. And for all the hypocrisy in this post (disclaimer 1), consider part of this hypocritical post to be an attempt to share why we do what we do -- and why we don't do certain other things that we'd consider to be just cynical clickwhoring.

If we want to have a discussion about "ethics in journalism" perhaps it should start with a discussion about all of this.

Filed Under: advertising, clickbait, community, ethics, gamergate, hypocrisy, journalism, traffic

DailyDirt: Data Is Everywhere, Let's Use It

from the urls-we-dig-up dept

If you've been reading Techdirt for a while, you probably know that we're not big fans of this myth: "If you're not paying for the product, you are the product." Regardless of whether or not you pay for something, some companies will still treat their customers horribly. Likewise, there are also some corporations that try to treat customers (or users) with respect without expectation of payment for the favor. That said, it's easy to make mistakes that get mis-interpreted when it comes to analyzing consumer behavior. An unintentional email message to a targeted (or even un-targeted) group of customers can enrage a whole community. Consumer data is available to a lot of companies, but it might be wise for these companies to tread lightly with their data scientists. Here are just a few cases that data miners might want to check out.

• Facebook participated in some social experiments, but creating an "emotional contagion" resulted in some unwanted public attention. The actual ability for a social network to measure or effect various emotions is far from proven, but the potential to cause widespread distress through a social network is probably something users should be concerned about. [url]
• Shutterfly made a seemingly small mistake in mass-emailing a bunch of its customers a congratulatory message about an upcoming newborn. The photo printing service wasn't even using data mining techniques (eg Target) to try to figure out who might be pregnant, but in this data-driven world, folks are trained to expect that companies may be trying to pry into their personal lives. [url]
• Social psychology has had some problems with scientific fraud, and thankfully, there are some investigators who are developing methods to find fake or massaged data. It's hard enough to actually design psych experiments that have conclusive results, but sometimes the data can't lie. [url]
• OKCupid admits to experimenting on its users, too. The difference with dating sites is that the people using them seem to be tacitly agreeing to be experimented upon. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: advertising, consumer behavior, data, data mining, emotional contagion, marketing, psychology, reputation, social experiments
Companies: facebook, okcupid, shutterfly, target

Katherine Heigl Drops Her Lawsuit Against Duane Reade

from the dropping-spree dept

Back in April, I wrote to inform you of the crazy-pants lawsuit filed by Katherine Heigl after Duane Reade, a drug store chain, tweeted out a photo of Heigl shopping at one of its stores. Under the auspices of publicity rights and the corollary idea that celebrities are simply better people with more legal privileges than the rest of us, Heigl wanted six-million dollars for the following tweet.

At the time, we noted that despite New York publicity rights laws being among the most tyrannical, it seemed strange for a lawsuit to be filed against a company simply for showing, you know, a thing that happened. While Heigl also claimed that this was a form of advertising, it's still just the accurate representation of something that occurred, which makes the whole advertising claim sort of silly.

Well, the lawsuit has now been voluntarily dropped with prejudice, along with news that Duane Reade has reached some sort of super-secret agreement with Heigl.

Papers to dismiss the lawsuit were submitted in New York federal court on Tuesday. The dismissal comes with prejudice, meaning that Heigl can't later sue again over Duane Reade's tweet and Facebook post. No terms were revealed in court papers, but Heigl's attorney provides at least some detail.

"Katherine Heigl and Duane Reade have worked out a mutually beneficial agreement," says Peter Haviland at Ballard Spahr. "Ms. Heigl has voluntarily dismissed her lawsuit, and Duane Reade has made a contribution to benefit the Jason Debus Heigl Foundation. The parties have agreed to keep the terms of the agreement confidential."

There's no way to be sure that Duane Reade didn't drop six million off at Heigl's charity, but I doubt it. Either way, it's sort of a shame to see the company run away from challenging the insanity of the claims in the original lawsuit. Publicity rights are beginning to result in ever-more ramped-up legal cases that anyone with a modicum of common sense will recognize as silly. It was a picture of Heigl shopping at a store. Somehow that resulted in the store having to settle and contribute to a celebrity's charity of choice? Come on now.

Filed Under: advertising, katherine heigl, publicity rights, settlement, tweets
Companies: duane reade

Sky TV Won't Allow Ads For ISP Highlighting Its Anti-Geoblocking Service

from the copyright-makes-you-do-silly-things dept

Last month, we wrote about how the New Zealand ISP Slingshot had started offering what it called "Global Mode" as a standard feature. The ISP realized the simple ridiculousness of geoblocking content, especially since so much content is deemed "unavailable" in New Zealand. So, in response, it basically set its services up so that it disguised where the user was coming from (not unlike many VPN services). This seemed like smart customer service. But, obviously, not everyone is thrilled with it. The local SkyTV is apparently banning ads from Slingshot if they mention Global Mode. Watch SkyTV's spokesperson totally fail to understand the issue:

Sky TV spokeswoman Kirsty Way confirmed the advertisements had been rejected because of their references to Global Mode.

"We are a business that pays people who create television so we are against any form of piracy or the undermining of intellectual property rights," she said.

Except that Global Mode is not piracy, nor does it "undermine intellectual property rights." It merely lets people use the internet in ways to access and pay for authorized content. It actually lets folks in New Zealand do things like pay for Netflix or Hulu -- which they can't do today.

Slingshot's General Manager Taryn Hamilton rightly calls this situation ridiculous, noting that rejecting the ads is "unjustified and petty." It's also fairly counterproductive, given that now Slingshot gets probably more publicity for the service without having to pay the foolish and small-minded folks at SkyTV for the pleasure.

Filed Under: advertising, geoblocking, global mode, vpn
Companies: skytv, slingshot

FIFA Pisses Away Free Advertising By Banning F1 Racer's Tribute Helmet To Germany's Futbol Team

from the they-must-hate-money dept

FIFA, the soccer/futbol/whatever organization that theoretically runs a sporting operation sure seems to actually be some kind of steroid-taking IP lawyer in practice instead. Much like the method by which the Olympics does their business, FIFA has always gone overboard in enforcing its trademarks. It insists on getting airline ads that don't even mention it pulled down, it goes after breweries, and it generally behaves like a psychopathic rich kid who thinks all the toys in the world are his and his alone.

Reader John Katos writes in with the latest head-scratching example of this. Nico Rosberg is big in the world of F1 racing and he wanted to celebrate the German's winning the World Cup with a helmet in an upcoming race. German pride, in other words, because when has that ever gone wrong?

Earlier this week, delighted with the national team's world cup victory in Brazil, Mercedes driver Rosberg announced he will wear a "special edition helmet" this weekend in Hockenheim. The 29-year-old German revealed on social media that the livery includes an image of "the FIFA trophy".

See that thing on top of the helmet? You know, the one that looks like Cthulu's claw reaching up to grip some kind of golden testicle? Well, that's the World Cup trophy, which, really you guys, come up with something a little better than that for the World freaking Cup. Regardless, the uber-lawyers over at FIFA saw this display of national pride and free FIFA advertising and took a dump on it.

We reported earlier that reproducing the image of the trophy falls foul of the world football federation FIFA's strict rules protecting its 'official marks'. The Mercedes driver's public relations manager Georg Nolte confirmed: "There will be an update on Nico's Germany helmet design today.

"(It) will be without (the) world cup trophy, but (now) with four stars on it."

Yes, rather than working out some kind of way to license the helmet for free so as not to risk the dreaded not-protecting-the-mark penalty that seems to drive so much of this heavy-handed nonsense, FIFA just killed off the free advertising. Quite sporting of them, if you ask absolutely no one.

Filed Under: advertising, germany, intellectual property, marketing, world cup
Companies: fifa

City Of London Police Inserting 'This Website Has Been Reported To Police' Banner Ads On Websites With No Legal Review

from the that-seems...-dangerous dept

The City of London police have continued to take their bull-in-a-china-shop approach to "stopping piracy" (generally based on a near total misunderstanding of the internet) to it's next level of ridiculousness. The police (which, yes, no need to remind us, represent a square mile in the middle of wider London, though, yes, it covers many big London businesses and financial firms) appear to have bought into Hollywood's fable about "piracy" being the equivalent of "theft" and not being even remotely concerned about the possibility of collateral damage. Back in April, we noted that the City of London Police had been creating a "blacklist" for advertisers of "bad" sites. And, now it's been revealed that advertisers are supposed to insert a ridiculous City of London advertisement on those websites in place of other ads. Like so many poorly thought out "anti-piracy" campaigns, this one seems to be based on two faulty premises. First, that it's somehow easy to determine what is a legitimate site and what is a "pirate" site. Second, that the thing standing between someone using such a site to get their content and going to an authorized site is just a bit of "education." The "education" story has been floating around for decades and there's basically no evidence to support it whatsoever. The idea that someone is going to go to one of these sites, see this ad, and then think "oh man, I had no idea, let me go to this other site recommended by the police instead" is just laughable. Even the idea that they'd read "this website has been reported to the police" and not laugh is kind of ridiculous. Hell, just the idea that the sorts of folks frequenting these sites even look at banner ads is kind of laughable.

In fact, some of us are so conditioned to ad blindness that it actually took a bit of an effort to get me consciously focus on the City of London Police banner ads in that picture -- and I didn't even notice the top banner until I was proofreading this post. Can't imagine that's particularly productive.

But the bigger problem is the one we brought up when it first came out that they were putting together this list in the first place. A totally non-transparent, one-sided system by which these technologically clueless police designate a site to be a "pirate" site seems ripe for abuse and harming perfectly legitimate sites. Remember, of course, the last time the legacy entertainment and online ad industry teamed up on such a list? It included tons of legitimate sites, including the Internet Archive, Soundcloud, Vimeo and BitTorrent's corporate website. It also included a bunch of popular hip hop blogs and 50 Cent's personal website.

One hopes that this new list will be put together with a bit more care, but you never really know. The industry has a way of declaring certain sites "rogue" despite them being perfectly fine. Remember, this is the same industry that tried to outlaw the VCR, the DVR and the MP3 player. It's also the same industry that insisted that both Youtube and Veoh were "pirate" sites, though both sites won in court (not before Veoh went out of business though).

So what happens when the City of London Police put these banner ads on the next YouTube? Does that site have any recourse from this opaque and totally one-sided process? Do they get to sue the police for defamation? And, really, in what world do the City of London Police think they have any jurisdiction outside of a single square mile of land?

Filed Under: advertising, anti-piracy, city of london police, copyright, education

Doctor Criticized For His Questionable 'Treatment' For Alzheimer's Patients Files SLAPP Suit To Silence Critic

from the and-the-lawsuit-is-equally-questionable dept

Dr. Edward Tobinick was the subject of an LA Times article in 2013 -- I'd link to it, but it appears to have disappeared, though I don't know why -- which highlighted his (apparently now discontinued) practice of prescribing a particular drug, Enbrel, for Alzheimer's patients. Enbrel is approved for the treatment of arthritis. Steven Novella, a physician at Yale and who maintains the ScienceBasedMedicine blog which (you guessed it) focuses on playing up science-based medicine while criticizing more quackery-based medicine, wrote a critical blog post about Tobinick's practice. Novella carefully lays out his arguments as to why Tobinick appears to be engaged in what he believes is quackery. It's actually fairly even-handed, laying out various possibilities, and noting that there is some gray area for off-label uses of the drug. But then he points out that Tobinick appears to be making claims way beyond what any evidence supports:

The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.

Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.

On his website he cites many studies, but none of them establish the effectiveness of Enbrel for any of the conditions he is treating. Most of them are simply identifying that TNF is increased in the condition. This is very weak evidence, however, as markers of immune activity are frequently increased in diseases that are not caused by immune activity. The immune system is very reactive—it reacts to disease with inflammation (often what we refer to as the cleanup crew). The inflammation is not causing the disease, it is simply the body’s reaction to it.

Tobinick was apparently upset about this and asked Novella to take down the blog post. Novella, quite reasonably, refused. Thirteen months later, Tobinick sued Novella and Yale University. Over what, you might ask? Well, there's clearly no defamation claim here, so Tobinick claims that Novella's blog post is an advertisement and represents "false advertising." He also claims that it's trademark infringement, and then demanded the blog post be taken down via an injunction. Novella is fighting back in court and on his blog. On the blog, he highlights the ridiculousness of Tobinick claiming this is an advertisement:

An interesting wrinkle of this suit is that Tobinick is claiming that my blog post is an “advertisement.” This is a legal maneuver as the threshold for forcing someone to remove an advertisement is much lower than the threshold for suppressing their free speech. I can only assume that he and his attorneys are not bothered by the fact that blog posts on SBM are blatantly not advertisements.

In the case of the Enbrel article he had to make the absurd claim that the post (which does not mention my own practice) was an advertisement for my neurology practice at Yale, designed to attack a “competitor.” He would have us believe that Yale neurology in Connecticut is concerned about a distant clinic. Further, Yale Neurology is an academic practice. Our problem is too many referrals and long wait times, not competitors. To see how desperate the claim is, he argued that because I use Botox, which can be used to treat symptoms following stroke, that his treatments for stroke represent a competitor. However, I don’t use Botox to treat stroke patients. I mostly use it to treat migraines, as I am a headache specialist.

From there, he digs in, with even more detail about his criticism of Tobinick's "practice."

Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.

Despite his lack of formal training and certification, he feels he has ushered in a “paradigm shift” in the treatment of Alzheimer’s disease – a disease that has proved challenging for actual neurologists for decades.

His treatment of choice is perispinal etanercept (Enbrel), which basically is an immunosuppressant drug. He is using this treatment for not only Alzheimer’s disease, but neurological deficits following stroke, traumatic brain injury, and pain resulting from vertebral discs. He therefore claims that the neurological deficits in these various conditions result from active inflammation (specifically tumor necrosis factor – TNF) and by inhibiting TNF “rapid improvement” in neurological function is possible.

These claims are highly implausible, and in my opinion reflect his lack of training and expertise as a neurologist. Strokes cause ischemic damage to the brain – brain cells in severe stroke die. Inflammation following stroke is incidental, not causative. Yet Tobinick claims that 10 years following a stroke, long after any neurological recovery would have occurred, patients can improve by inhibiting TNF.

He makes the same claim for Alzheimer’s disease, despite the fact that this is a neurodegenerative disease resulting in loss and destruction of brain cells. An anti-inflammatory drug is not going to bring back dead brain cells, yet he claims “rapid improvement” is possible.

There's more of that. The response to the request for the injunction, written by lawyer Marc Randazza is (in typical Randazza fashion) well worth the read. Here's just a snippet.

Dr. Novella’s critical opinions of the Plaintiffs are not outlier views. In fact, the prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of Google alone, there are numerous other articles written by other authors, entirely unrelated to the article at hand, that also express critical and unflattering opinions of Tobinick and Plaintiffs’ “medical” practices. For example, in 2008, The Alzheimer’s Forum published an article criticizing Tobinick, his treatment of patients, and his self-promotional “studies.” That article evaluated a paper published by Tobinick, in which he presented a study involving one patient who purportedly improved his Alzheimer’s condition within minutes of receiving Enbrel injections (as if such a thing were possible). The article’s author reached out to seven independent researchers, who all “expressed unease about the way in which these studies were performed.” Furthermore, in that article, Cynthia Lemere, associate professor of Neurology at Bringham and Women’s Hospital in Boston stated “[t]his is exciting, but very preliminary information. The appropriate way to pursue it at this stage is to apply to FDA and NIH for support to run a rigorous trial, not to promote it to the general public.” That article presented the opinion that Tobinick’s use of Enbrel gave false hope to Alzheimer’s patients, without being based in scientific and clinical research, and pointed to a number of fatal flaws in the case report authored by Tobinick.

More importantly, also on the first page of a Google search for “Dr. Tobinick” is an article published by Casewatch.org, outlining the history of disciplinary action against Tobinick in California, including the formal accusations filed by David Thorton as the Executive Director of the Medical Board of California, Department of Consumer Affairs. The stated allegations in the disciplinary action were for unprofessional conduct relating to his advertisement of Enbrel for the treatment of neck and back pain, in violation of the California Health and Safety Code, constituting unprofessional conduct. The second cause of action was for Tobinick’s unprofessional conduct relating to his failure to obtain a permit for use of “Institute of Neurological Research” as a fictitious name. The disciplinary action was settled, resulting in a one-year probationary period for Tobinick, in lieu of the revocation or suspension of his medical license and surgeon’s certificate, as proposed by Thornton.

The response also takes on the ridiculousness of arguing that this is an "advertisement" and a trademark claim rather than an attempt to do an end run around defamation law.

Plaintiffs have cleverly attempted to disguise this defamation claim as a Lanham Act claim – presumably to ensure the availability of Federal Court jurisdiction and to try to sidestep the clear case law that cuts against them in defamation actions. But, no matter how eloquently someone may call a “dog” a “chicken,” it will never lay eggs. And styling a specious defamation claim as a Lanham Act claim does not remove the underlying speech from the protections afforded by the First Amendment.

Plaintiffs come to this Court seeking extraordinary relief in the form of an impermissible prior restraint on Defendant’s speech because of allegedly “false advertising.” Tobinick’s request for this exceptional relief is impermissible under the First Amendment, and a request for this Court to impose a prior restraint on Defendant’s speech. “The clearest definition of prior restraint is an administrative system or a judicial order that prevents speech from occurring.” There has been no judicial determination as to whether Dr. Novella’s article is “false,” nor whether it is “advertising.” (It is neither.) Yet, Plaintiffs come to this Court requesting Constitutionally extraordinary relief – the suppression of speech without due process. The motion must be denied.

So, the end result of a questionable, bogus SLAPP lawsuit in an attempt to silence a critic -- is much more attention paid to the original claims and other aspects of Tobinick's past.

Filed Under: advertising, alzheimers, anti-slapp, defamation, edward tobinick, enbrel, quackery, slapp, steven novella, trademark, truth in advertising
Companies: yale

A Special Thanks To Twitch And Namecheap For Providing The Matching Funds For Our Crowdfunding Campaign

from the step-on-up dept

Reminder: If you support our crowdfunding campaign today
your support will be immediately doubled thanks to matching funds. »

As we recently explained, the type of reporting we do isn't always conducive to advertising support -- in fact, our work on the SOPA fight caused us to lose a significant amount of revenue, and the blog itself operates at a loss. Earlier this month we announced that we were running a crowdfunding campaign on BeaconReader to fund our net neutrality coverage in particular -- as that's another subject that deserves deep-dive coverage, and which traditional advertisers don't want to go anywhere near. One of the great things about working with BeaconReader was that they were able to line up matching funds, so that every donation to us is automatically doubled by the matching donors. Today we're happy to announce that the first two matching donors have been revealed as Twitch and Namecheap -- two companies that are dedicated to preserving an open and free internet, and who wanted to support our coverage in this way, by multiplying the impact of anyone who donates. We're also announcing that Reddit founder Alexis Ohanian has backed our project as an "Event Sponsor," for a net neutrality salon that we'll be holding later this year.

We're excited to have this support, and just as excited to see so many of you step up to back the project as well. We're about a week away and there's still a long way to go, but the initial support has been fantastic. If you enjoy what we do, and would like to see it continue (and go deeper and be more involved), please consider backing the project in the next week and thank Twitch and Namecheap for immediately doubling the impact of your support. If we succeed, we'll be able to devote more time and resources to our net neutrality reporting, including bringing in additional voices, meeting with key players, and just generally spending more time digging into the details of this important topic -- rather than having to spend it convincing advertisers that, no, we don't want to force a giant annoying video to play on the site before you can read anything, because that's not how we treat our community. It's great that Twitch and NameCheap were willing to step up via BeaconReader, to show their commitment to dedicated, independent reporting on these important topics.

You can help by supporting our coverage right now »

Filed Under: advertising, alexis ohanian, crowdfunding, matching funds, net neutrality, open internet, reporting
Companies: namecheap, twitch

UK Advertising Regulator Nixes EA's Dungeon Keeper Advertisement Due To Microtransactions

from the freedom-isn't-free dept

Electronic Arts, fresh from being upset in the most recent "Worst Company" contest, isn't taking the defeat lying down. In fact, they're in full rebuilding mode, acquiring as much news about pissing people off as possible. Recently, for instance, you may have heard that the next Sims game will be published without the much-loved toddler children sims or the ability to create swimming pools in players' homes. The response from EA essentially states that they don't think that stuff is important, despite the public outcry. With an eerily similar recent history in the form of the SimCity debacle still fresh in everyone's mind, people aren't too happy.

But the real trump card the company has rolled out recently is the Dungeon Keeper mobile game which pissed off roughly everyone. And I don't just mean the critics, who essentially look upon this reboot of a beloved franchise as blasphemy, but even consumer rights groups are getting involved due to the cynical attempt in the game to extract microtransactions out of players through in-app purchases while claiming to be a free game. The UK's Advertising Standards Authority disallowed EA advertising Dungeon Keeper as a free game and describes the ad this way:

A direct e-mail for the mobile app game Dungeon Keeper stated "GET DUNGEON KEEPER ON MOBILE FOR FREE! ... DIG. DEVISE. DOMINATE. Build the most badass dungeon ever! Raise an army of diabolical minions and lay twisted traps to destroy any opponents foolish enough to set foot in your lair. MASTER THE HAND OF EVIL Cast powerful spells, pillage and plunder other players’ dungeons, and slap your imps around to make them work harder. A world of wicked fun is right at your fingertips. What are you waiting for, Keeper? Get it for FREE!" A footnote stated "WIRELESS FEES MAY APPLY". The ad also featured a screenshot of the game which appeared to show a well-developed dungeon, and was accompanied by artwork depicting characters from the game.

The problem? Well, by most objective estimations, you can barely play the game without shelling out for in-app purchases. See, the game uses two kinds of currency in order to construct dungeons, which is the gameplay within the app. There's stone and gold, which replenish and accrue over time, and there are gems which are paid for with real-life money or some very limited in-game actions. EA argued that everything that appeared in their ad, including depictions of a created dungeon, could be achieved without spending any real-world money and just playing the game. And they're technically right, but they forgot to mention that the amount of time we're talking about to do so makes the game unplayable. Also, they forgot to mention how, in a departure from games like Candy Crush, the time players are made to wait gets longer as they progress in the game.

We noted that, although some of these actions could be done simultaneously, there was a limit to how many actions could happen at the same time and that the length of the countdown timers increased according to how far the player had progressed in aspects of the game. We therefore regarded it as extremely likely that players would reach a position where they would be unable to take any further meaningful or progressive action in the game until a timer had finished or been skipped, and that these periods would become longer and more significant, and the cost of skipping increasingly higher, as the player progressed. Although some of the features in the ad did not require waiting for a timer, we noted that these were either incidental or brief (such as ‘slapping’ the imp characters) or were dependent on other actions that were gated by a timer. We acknowledged that the Gem currency, through which the timers could be skipped, could be obtained for free through normal gameplay and that the game could therefore be played without spending currency to bypass the countdown. However, we understood that the rate at which they could be accrued was slow in comparison to the amount needed to play the game at a reasonable rate, where the delays did not significantly impact on the ability to continue playing.

In other words, the ad said the game was free and didn't mention in-app purchases, but the game is essentially unplayable without such purchases. In addition, progress in the game is specifically met with a mechanic designed solely to extract in-app purchases in the form of an increasingly long countdown timer. It's a scummy way to make a game, to advertise a game, and to treat customers, particularly within a game that is universally considered to be garbage.

The end result is the ASA nixed the ads that depicted the game as free and ordered them to make future ads clear about in-app purchases and the limitations on free gameplay. If EA wants to keep on making this money-extracting drivel, they certainly can, but they can't pretend they aren't. Consumer protection done right, in other words.

Filed Under: advertising, dungeon keeper, free, in-app purchases, microtransactions, uk
Companies: ea