Archive - Augmented Reality

Stealing a Glance: Eye Tracking, AR, & Privacy

February 22, 2012 in Augmented Reality with 0 Comments

The science of tracking eye movements to determine what draws our interest  has been around for more than a century.  Retailers, product designers, and advertisers use it to figure out how to grab consumers’ attention.  Website designers use it when deciding how to lay our content on a page.

But augmented reality eyewear is likely to elevate this psychological curiosity into a full-fledged privacy battleground, for several reasons.

First, unlike virtually any technology that already exists, truly immersive AR depends on knowing exactly what our eyes are looking at. This data will be absolutely indispensable in order for the eyewear to do its job.  So it seems inevitable that such devices will collect eye-tracking information, in one form or another.

Second, the information itself has great commercial value.  Just like with today’s technologies, any provider of augmented digital content will be eager for hard data on how effective and engaging their content is for consumers.  So the temptation to collect and monetize it will prove too tempting for many service providers to resist.

Third, the public’s reaction to internet browser cookies and spyware over the past two decades strongly suggests that consumers will also react negatively to companies archiving their browsing activities in augmented space.  Much of the online tracking that goes on today is quite lawful.  Regardless, a large segment of the population reacts negatively to the idea that someone else knows what they’ve done online.   We see this in the demand for private browsing and the persistent calls for more privacy regulation in the US and Europe.  The resulting patchwork quilt of privacy laws and regulations across multiple jurisdictions already leaves many service providers confused about what information they can and cannot collect, and it’s bound to get only more complicated.

Fourth, augmented “browsing” will be an order of magnitude more personal of an experience than is typing words on a keyboard or scrolling through a display on a monitor.  It’s one thing for a computer to be logging the addresses of websites you visit.  It will be another thing entirely for there to be an electronic record of everything you physically look at. But that’s exactly the type of information that “browser” software inside augmented eyewear will collect.  Integrating our digital experience with our immediate physical surroundings is intended to make that experience feel more immersive–more real.  But such an “immersive” experience will necessarily feel more personal as well.  And the more intimately users experience something, the more deeply they are likely to feel a sense of invasion when someone else intrudes on that experience.

Of course, this viewpoint is just one side of the equation.  Augmented browsing software will undoubtedly come with terms of use, click-wrap contracts, and end user license agreements very similar to the ones governing internet browsing and digital content today.  There will likely be some level of disclosure–either voluntarily or by legal mandate–that users’ visual experiences are being recorded.  And to some extent, we will want augmented browsers to track our eye movements, in order to continuously improve the software’s performance.

Also just like today, however, no matter how many licenses and disclosures are in place, some users will still allege that their privacy is being invaded.  This article isn’t intended to suggest where the AR privacy lines should be drawn–only that fights over those lines are inevitable.

Perhaps by then, the fallout of the internet privacy wars will have resulted in some degree of consensus or regulatory brightlines defining what information is and is not private.  But if lawmakers are going to clarify privacy principles for the augmented age, they’d better hurry–because mass-market AR eyewear and software are just around the corner.

In the meantime, those companies currently developing this technology would do well to think through the related privacy issues, and have well-defined privacy policies in place from Day One.

 

 

 

 

 

[INTERVIEW] BC “Heavy” Biermann: Taking Back Public Spaces With AR

January 31, 2012 in Augmented Reality with 2 Comments

I’m one of several people who write about how augmented reality will change the world some day.  BC “Heavy” Biermann is one of the few people currently helping to make that happen.  In addition to working as an assistant professor of media, BC is the founder and developer behind The Heavy Projects, the brains behind several innovative AR projects.  In the course of preparing my upcoming talk on “Augmented Reality and Social Change,” I had the great fortune of talking to BC and learning more about his vision of our augmented future.

Occupy AR

The first example of BC’s work that I came across–and the one most obviously tied to social change–is the “Occupy AR” channel he developed at the height of last fall’s Occupy protests.  This was a channel on the junaio AR browser by metaio.  The channel carried information for the Occupy protests in five different cities across the country.  Using the GPS coordinates of scheduled demonstrations, the channel guided users to the site, and offered related contact information.

The Occupy AR channel made a splash online as one of the earliest, starkest examples of AR being used to foment social change.  BC supports the Occupy movement and is happy to have contributed.  But I discovered that he wasn’t exactly thrilled with the final product.

“It came down to a lack of time,” BC says.  For starters, he never intended the channel to rely on geolocation.  He much prefers AR applications that use feature tracking.  “That’s why I chose the junaio platform in the first place,” he said, “because it was the best at feature tracking at the time.”  (He hasn’t yet gotten a chance to develop for the newer Layar Vision platform.)  BC’s original concept was designed to recognize the NYPD logo, overlay that with the Occupy symbol, and use that to direct users to the park where the demonstrators were camped out.  But the code to make that happen wasn’t working, and developments within the Occupy movement were happening quickly.  So he fell back to the geolocation mechanics that most smartphone AR apps use.

“I had a whole web-based back-end planned, too,” BC laments.  This would have tied into the Occupy AR channel to allow users to upload video, and give organizers the chance to collect visitor analytics.  He made preliminary plans with the Occupy Wall Street organizers in New York to develop the site, “but again, time just ran out.”

As a result, he has no idea how many people actually used the Occupy AR channel.  If nothing else, though, it proved the concept that AR can offer a unique way to use draw people to a physical location using digital data.

Hijacking Outdoor Advertisements

BC takes more pride in the development work he’s done for the New York-based Public Ad Campaign.  This organization believes “that public space and the public’s interaction with that space is a vital component of our city’s health,” and considers “outdoor advertising [to be] the primary obstacle to open public communications.”  Its mission is to “air our grievances in the court of public opinion and witness our communities regain control of the spaces they occupy.”

One of Public Ad Campaign’s several attempts to further this goal was a project called the “AR Ad Takeover.”  This smartphone/tablet app used feature tracking to recognize particular print advertisements that were then prominent across New York City.  The app then superimposed original art on top of those ads, essentially replacing their commercial message with an expression of the Campaign’s choosing.

In April 2011, BC launched a similar app that hijacked the movie poster for the film Pirates of the Caribbean: On Stranger Tides.  The app morphed the face of “Captain Barbossa” (played by Geoffrey Rush) into that of Goldman Sachs CEO Lloyd Blankfein–who BC calls “the real pirate.”  (Since then, BC notes with a healthy dose of irony, he’s noticed film companies intentionally using AR in some of their movie posters.)

The Heavy Projects have at least two new projects in the works for 2012.  The first is a “digital murals” project to “re-skin” public buildings.  Using feature tracking and 3D digital models, users will be able to superimpose a different appearance over certain buildings, and even see them “decay over time.”  The second project seeks to replicate these efforts in young minds.  BC is working with a nonprofit organization in New York to teach inner-city kids how to use junaio to replace outdoor advertisements with their own “ARt.”

Democratizing Messaging in Public Space

Each of these are steps in an “iterative process” toward an overall “philosophical” goal in mind with these efforts, he says.  It is two-fold: first, to change the way people think about public space, and second, to democratize the way public spaces are used for communication.  Or, as BC says, “eradicating the last bastions of common space that you can’t control.”

“AR can democratize messaging in public space,” BC says.  “I’m not against commercial messaging per se, but I’m opposed to commercial dominance.”  Like most of us who write about the future of AR, BC envisions a world where people wear AR-powered eyewear that seamlessly superimposes digital data atop our field of vision in a seamless, effortless manner.  But for BC, the “killer app” for such hardware would be an “open environment platform that allows users to filter their environment according to their interests.”  Users of such a platform would not see the billboards and other commercial messaging that now occupy so much of our public space unless they chose to.

As hard as BC is working to make this dream a reality, however, he freely acknowledges the drawbacks that would come with it.  I asked him whether this ability to filter one’s experience of reality could lead to more political groupthink (also called the “echo chamber effect“), where people only get information that reinforces their pre-existing beliefs, leading to an erosion in social cohesion and civic discourse.

“The question is right on target,” says BC,”and honestly, I have no good answer for it right now.”  He suggests that there should eventually be a way to combine filtering with an avenue for unfiltered information as well.  But the echo chamber problem is already inherent in our current media environment, he notes, and on balance, he believes that ending what he sees as commercial dominance of public spaces will still be a net-positive.

BC is also grounded enough to not want to throw the baby out with the bathwater.  I asked him about another form of public messaging that people often consider an eyesore: the abundance of traffic signage that lines our roads.  Why not, as I’ve speculated about, replace them all with digital content viewable only to drivers through an augmented windshield?

His reaction exhibited caution and thoughtfulness.  “Generally, I’m in favor of reducing clutter,” he says.  “But stop signs are for pedestrians too.  If not everyone needs to see it, then I favor removing it.  But that also presupposes that all drivers have access to the right technology, and that it’s reliable.”  In other words, this is not something that’s around the corner.

Dream or Destiny?

On that note, I asked BC whether he believes that his vision of an augmented public space will ever truly come to pass.  “I’m hopeful, put it that way,” he says.  Most of the R&D he’s seen has been taking place in Europe, but US companies are catching up.  BC has his eyes on Qualcomm and the Google Goggles project.  “As a developer, it’s out of my hands,” he says.  Bu he can’t wait for the hardware to catch up with the potential offered by the type of AR software he’s able to develop.

“We’ve also got to keep ‘gimmicky’ AR from dominating the market,” he says. “It will be more challenging” to promote AR as a means of democratizing public spaces if the public comes to associate AR with “pointless” apps that BC considers mere “diversions.”

Whether or not you agree with BC’s view of commercial messaging and public spaces, his creativity and determination are admirable.  BC Biermann is poised to be one of the people in the vanguard of socially meaningful augmented reality.

Questions: Do you agree with BC’s view of public spaces?  Will AR make our view of the world more, or less, democratic? Can AR apps really help change the world?  Leave your responses in the Comments section below.

 

 

Augmented Reality & Social Change: My Upcoming Presentation

January 23, 2012 in Augmented Reality, Social Media with 4 Comments

On February 17, 2012, I will be a panelist at the Michigan State University International Law Review Symposium titled “Modern Global Revolution.“  The panel on which I’m participating will discuss “TECHNOLOGY, SOCIAL MEDIA, & REVOLUTION: Modern Methods of Organizing and Implementing Change.”

My portion of the discussion is entitled “Augmented Reality and Social Change.”  I’ve blogged on this topic before, but I’m looking forward to examining it in this more academic environment.

Here is a copy of the abstract describing my presentation:

Augmented Reality (AR) is a paradigm-shifting technology with the potential to shape human interaction as profoundly as the internet and cellular telephones have over the past two decades.  It only stands to reason, therefore, that AR will open new pathways for encouraging and affecting social change.  Some of these pathways are foreseeable; others may not be.

We have already seen AR used by “Occupy” protesters as a means of organizing events, spreading their message to the public, and building community bonds between protesters.  AR protest paraphernalia also appeared in venues where physical demonstrators were unable to go.  The fervor of public discontent across the globe that was seen most vividly with the 2011 Arab Spring and continues in the online resistance to SOPA and PIPA suggests that individuals and small organizations will only continue to find innovative and cost-effective means of expressing their message.  AR applications are well-suited to that task.

AR has been, and will likely be, used to foster change in ways that are both more and less subtle than the Occupy example.  For instance, governments are already adopting AR for public service announcements, the aim of which is to directly alter citizens’ behavior.  The expansion of AR technologies into such regulated behavior as driving an automobile and commercial advertising—not to mention the potential for related criminal behavior–ensures that governments will get into the business of policing AR use.  Co-opting the medium for political messages cannot be far behind.  Political parties themselves have already begun to do so.  And in a similar vein, artists are embracing AR as a consequence-free medium for attaching their own messages to anything and everything in the physical world.  AR’s potential as a change agent, therefore, is multi-faceted.

5 Predictions for Augmented Reality Law in 2012

January 3, 2012 in Augmented Reality, IP with 2 Comments

This could finally be the year that the public begins to see augmented reality as a serious, important technology.   Lance Ulanoff, the editor-in-chief at Mashable, certainly thinks so.  He listed AR as the first of “5 Tech Trends to Watch in 2012.”  “Trust me,” he wrote, “by 2013, you’ll be hard-pressed to find anyone who hasn’t at least tried augmented reality.”  On January 2, 2012, BBC News wrote that “augmented reality …  is beginning to take hold in the US.”

And with any new industry comes legal milestones.  As AR companies becomes more prominent, they will encounter the same legal issues that occur in every industry.  I’ve already told you about the first legal dispute over AR, which involved marketing to teens.  Here are five legal issues that I think at least one AR company will encounter sometime this year:

1.  The First Licensing Model for AR content.  Copyright law will always play a big role in AR publishing.  It is the law of creative expression, and AR is a medium through which some of the most creative content of our generation will be expressed.  In other media, those who author creative content give licenses (i.e., permission) for others to reproduce, distribute, alter, publicly display, or publicly perform that content–sometimes for free, sometimes in exchange for money.  AR publishing will work the same way.

Daqri has already announced its plans to be “the YouTube of AR,” where anyone can upload or download user-generated AR content for free.  Sometime in 2012, I expect to see at least one company monetize AR content–perhaps through an in-app purchasing feature, allowing users to download custom images that they could then see through their smartphones.

Personally, I’d love for Apple to offer downloadable AR skins for its Siri personal assistant.  That way, you could not only hear Siri give you directions, but actually see her (through your iPhone) pointing them out right in front of you.  (And you know that Apple will give her an entire digital body, but only charge you an arm and a leg.)

2.  The First Negligence Lawsuit.  “I couldn’t see that wet spot on the floor because the digital, two-headed dragon was in my way!”  I’ve already blogged about the risk that mobile AR users will become distracted by digital content and injure themselves on very physical objects.  As AR gaming, scavenger hunts, and the like take off in popularity this year, I see the first personal injury lawsuit being filed sooner than most people might think.  And the first augmented commercial for personal injury lawyers can’t be far behind.

3.  The Introduction of AR Eyewear Starts the First AR Patent Fight.  It might not happen exactly that way.  But two things seem to me not only inevitable, but imminent.  One is  physical eyewear with AR capabilities.  The other is a series of patent infringement lawsuits over AR technologies that rival the patent wars already underway throughout the mobile industry.  It seems only logical that such an innovative, ground-breaking, and immensely popular device would be the most likely to catch the attention of the patent trolls.

4.  The First Trademark Opposition.  There are only so many different ways to say “augmented,” “immersive,” and the other adjectives that suggest AR.  Many startups are not yet thinking about protecting their trademark rights.  They may be surprised when they apply to register their name, only to be accused by another company of coming too close to their own trademark.  That happens daily in other industries, and is likely to happen to an AR company soon.

5.  Porn Puts AR on the Radar of Family Groups and Law Enforcement.  You can always count on the military and the porn industry to push technology forward.  AR already has investors in both camps.  The porn industry is already investing heavily in AR.  If Apple really does put skin on Siri as I speculated above, we might see “alternative,”  user-generated versions soon thereafter.  And as Joe Rampolla (a law enforcement officer and consultant specializing in cybercrime, and one of the first people to publicly address the law enforcement aspects of AR) says, “wherever society finds pornography, child pornography is not too far behind.”

We may not see all of these events in 2012, but I’d bet that most of them will come to pass.  And I’m sure that we’ll see others that aren’t listed here.  I’ll revisit this post in December to evaluate my predictions.

Question:  Did I miss any?  What legal firsts do you think the AR industry will see this year?

Welcome “AR Dirt” to the Blogosphere

December 30, 2011 in Augmented Reality, Social Media with Comments Off

I’m happy to see that my friend and colleague Joe Rampolla has joined the blogosphere.  You can find him at ARDirt.com.

Joe has been thinking and speaking about augmented reality and related technologies for years now.  He and I met shortly after I launched this blog, and discovered that we have some very similar ideas and concerns about the promises and dangers of AR.  I’ve quoted him more than once in these pages.

Joe’s perspective is unique, because he brings a law enforcement background to the conversation.  He has been a law enforcement officer for 17 years for a suburban police department in the NY/NJ Metropolitan area. In 2003 he was assigned to a regional computer crimes task force in Northern New Jersey. He is a nationally recognized speaker on the topics of cyber crime, augmented reality, virtual worlds, cyber-terrorism, cyber-bullying and undercover Internet Relay Chat (IRC) investigations. He has taught International law enforcement at Microsoft in Redmond WA, in the Ontario Canadian Providence, and taught cyber crime topics to all levels of law enforcement for the National Internet Crimes Against Children Task Force. In his spare time he teaches in various diverse communities as an outreach coordinator for homeland security interests. Joe serves as a consultant for various organizations across the United States and presents for the National District Attorney’s Association (NDAA) and Fox Valley Technical College.

AR Dirt features not only his blog, but also his new book on AR, video, an Innovators Q&A, AR news, and more.  With Joe’s commitment and enthusiasm, I’m sure we’ll see this site grow into an important resource for the AR industry.

What’s more, Joe has honored me by choosing me as his first interviewee.  You can read my “Innovator’s Q&A” here.

 

[VIDEO] My Presentation to the ARNY Meetup

December 28, 2011 in Augmented Reality with 2 Comments

At its December 27, 2011 gathering, the Augmented Reality New York (ARNY) Meetup presented a video I had recorded for the event.  The video was a summary of the FTC Complaint filed this Fall against PepsiCo and Frito-Lay, alleging that their AR marketing campaign for the Doritos Late Night brand amounted to “deceptive marketing” that confuses “vulnerable” teenage minds.  I also shared my thoughts for the how AR entrepreneurs and the industry as a whole should respond to these allegations.

After the pre-recorded portion, I had an engaging Q&A conversation with the attendees via Skype.  We touched on issues of copyright, trademark, deceptive marketing, digital property rights, and more.  I also heard from them the story of an AR business proposal that had been turned down by a potential client who was nervous about using this new, poorly understood technology–exactly the scenario I posed in my video.

As I emphasize in my video, I truly believe that the entire AR industry is at a crossroads.  This is the moment when the business community and the general public are forming their first impressions of augmented reality technology–and you don’t get a second chance to make a first impression.  Will that impression be that AR is “deceptive,” manipulative, and untrustworthy?  Or–as the burgeoning AR community argues–an inevitable and empowering tool that could help revolutionize virtually every aspect of business and daily life?

Many thanks to Ori Inbar (of the exciting AR gaming company Ogmento) for inviting me to participate in the ARNY meetup.  Other AR groups are welcome to show my video, and I’d be happy to Skype into your meetings as well.

 

Happy New Year!

This Week in Augmented Reality

December 16, 2011 in Augmented Reality with Comments Off

Don’t follow me on Twitter?  Then you’re missing out on my daily links to new and interesting developments in the world of AR.  And since Twitter’s recent redesign now makes it easier than ever to embed tweets directly into blog pages, I now bring you this summary of the news that I’ve shared this week:

 

 

 

 

 

Political Activism, Social Change, and Augmented Reality

November 29, 2011 in Augmented Reality with 8 Comments

Superimposing digital data on the physical world is not just for the 1%.  As more of our innovators, artisans, and marketers experiment with augmented reality, the tumultuous politics of our times are beginning to follow suit.

Protests and Social Change

This year’s Occupy movement broke new ground in various ways that will keep sociologists and political scientists busy for decades.  One example is how some of the protestors resorted to free AR apps to keep the public informed about related events and locations.  Using Metaio’s location-based AR browser junaio, one AR developer launched an “Occupy channel” that provides locations, contact information, and resources for all the Occupy protests in various cities across the country.

The Occupy Wall Street group in New York took this idea one step further, using junaio to superimpose signs, placards, and related imagery over areas from which they were restricted from physically protesting.  A related site called “AR Occupy Wall Street” styles itself as a “call to all AR activists,” and collects a series of protest-themed images from various AR designers.

Of course, the utility of these apps to the overall movement remains an open question.  One first has to have a compatible device and software, then download the app (or subscribe to the right channel inside an app), then be in the correct location, then use the app, all before one can encounter the experience that the apps intend to convey.  Someone who jumps through those hoops is likely to be someone already sympathetic to the cause–which means these may be the first real-world examples of AR’s tendency to entrench existing political divisions.

Nevertheless, these examples do illustrate AR’s power to crowdsource a movement’s message.  They allow individual artists located anywhere in the world to add their own spin on the group’s message–using different perspectives, images, and even languages–in a way that no mere physical demonstration could ever hope to accomplish.  If even one of those protest “filters” catches on with a critical mass of individuals, it could change the entire course of the movement.

This technique of spurring social change isn’t limited to protesters, either.  The Dutch government recently used AR billboards as a form of experiential Public Service Announcement.  The goal was to avoid a situation like one that occured in New York City, where passersby left a “homeless hero” to die in public after he saved a woman from a mugging.  The billboard superimposed a violent criminal encounter over live video footage of the area where viewers stood.  The onlookers could do nothing to interact with the scene or stop the crime.  But they got a stark visual reminder of how appalling doing nothing can look.

Campaigning in AR

Just as Barack Obama proved in 2008 that social media could be an effective means of rallying support, so too are political parties beginning to discover AR’s potential value in political campaigns.  The Green Party in Germany has partnered with Metaio to launch an app that lets constituents leave comments geo-tagged to specialized billboards and specific physical locations and  that represent a certain issue–and to hear pre-recorded statements by party officials about those very issues.

And just in time for the 2012 presidential campaign in the US, AR startup GoldRun recently announced a feature called “Visualize the Vote” that lets users pose for a picture with their favorite presidential candidate–super-imposed over the user’s physical location–then share that photo with their friends.

How Far Could it Go?

As society grows more accustomed to engaging with customizable layers of reality, AR’s ability to affect social change will deepen exponentially.  For example, GoldRun also plans to launch a location-based reminder service that automatically alerts you to a particular cause when you come within a certain distance of a related location. (Apple’s recently launched personal assistant Siri can do the same thing upon request.) The first example that has been mentioned is showing you the image of a dog or cat when you walk within a mile of an animal shelter.

But this same technique could easily be applied to any social or political issue.  Driving over a bridge might bring you a layer of information about the “pork barrel spending” that went into funding it.  Entering a road construction area might prompt data on “your tax dollars at work,” or perhaps information about that company’s safety record.  And whether a particular geotagged location sends you negatively or positively spun information could well depend on which political group’s channel you’ve already subscribed to–again reinforcing a tendency toward political groupthink.

Perhaps the most radical vision of AR’s impact on society can be found in Daniel Suarez’s books Daemon and Freedom(TM).  In that story, members of the AR-driven “Darknet” form a networked society that begins to subvert and supplant the existing political and economic order.  Members of the community wear AR eyewear that allows them to see the information on which their Darknet society is based. All manner of virtual information like that described above is available to these people, except in a fully immersive, always-on manner.  If someone writes a virtual protest sign on the side of a building, for example, that sign is equally visible to Darknet members as if it had been written with physical paint.

But Suarez’s mediation on how AR would affect society goes deeper than virtual graffiti.  Each of these people develop “reputation scores” that are visible to other Darknet members as numbers floating in midair above their heads.  These scores are the cumulative averages of the “rating” that person has received from other Darknet members based on their credibility, honesty, proficiency, and the like.  The higher that score–especially as the “base” number of ratings increases–the more trustworthy that individual is considered.  It would be like living in a world where everyone judged you by your rating on eBay.

Even more interesting is Suarez’s concept of the power meter.  In addition to reputation scores, Darknet members achieve experience levels by accomplishing various tasks–exactly as in a video game.  The higher one’s experience level, the more abilities they unlock within the Darknet, and the more data to which they gain access.  In order to keep any one person or faction from gaining to much power over others in this way, however, all Darknet members are able to see not only the experience levels of others around them, but also the distribution of power within a given community.  If power is concentrated in too few hands, the needle tips to the right.  But if it’s dispersed too thinly–i.e., if there are no potential leaders within the group–the needle leans left.  The optimal distribution of power is considered to be somewhere in between those extremes.

In this way, Daniel Suarez posited a solution to the inequities protested by the Occupy movement well before that group existed.

And on a related note, on Feb. 16, 2012, I will be addressing these and similar topics at the annual symposium of the Michigan State University College of Law International Law Journal.  The title of my panel’s discussion will be “Technology, Social Media, & Revolution: Modern Methods of Organizing and Implementing Change.”

Question: How do you envision AR being used for political activism?

Beyond Doritos: How Else Might AR Be Called “Deceptive”?

November 15, 2011 in Augmented Reality with Comments Off

As my readers are now well-aware, augmented reality marketing campaigns are now on the radar of consumer advocacy groups.  Last month, four of these groups filed a complaint claiming that a Doritos campaign involving augmented “virtual concerts” was “too immersive” for teenagers to handle, and “deceptively” blurred the lines between advertising and entertainment.

Marketers should take heed of these claims.  Regardless of their merit in the Doritos case, some other aggrieved party is likely to make them again in the future, over some other marketing campaign–because “immersiveness” is an essential quality of AR.

But no two cases are exactly the same, and some plaintiffs are more creative than others.  Which raises the questions: in what other ways could an AR marketing claim be alleged to be “deceptive”?  What causes of action might another plaintiff bring besides the Federal Trade Commission complaint lodged against Doritos?

False Advertising

One likely candidate is a lawsuit alleging “false advertising.”  The federal Lanham Act (which is also the source of federal trademark law) defines false advertising as “any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which … in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.”

In order to prevail, a plaintiff must prove that the defendant made a false or misleading statement of fact about a product or service, and that this statement was likely to influence a customer’s purchasing decisions.  In reality, though, defendants responding to such complaints end up shouldering an expensive burden to show that their statements (or implications) were true and not misleading.  Quite a few of these cases have been brought over the years.  Prof. Rebecca Tushnet’s 43(B)log, one of the leading resources on this area of law, is up to nearly 900 entries under the “false advertising” category.

How might AR be used to “misrepresent the nature, characteristics, [or] qualities” of goods or services?  To answer that question, let’s phrase it another way: how might representations made via AR get the facts wrong?

One obvious answer is “mistakenly.”  AR remains an emerging technology with a lot of developing yet to do.  And there are currently a lot more ideas about how to apply the technology than there is hardware capable of implementing those ideas.  It may seem to the general public that the camera capabilities of smartphones and tablets are maturing rapidly, but to AR developers waiting for markerless object recognition, millimeter-precise GPS, and stereoscopic machine vision capabilities, they’re moving at a snail’s pace.

Consequently, some over-ambitious AR apps may try to convey or recognize more data than they’re able to–resulting in blocky, choppy, imprecise output.  (For example, the jerky floating boxes that characterize most location-based AR apps on Android devices.)  Under the wrong set of circumstances, that might end up conveying information that is false and has a material impact on a consumer.

Another answer is “by cutting corners” or “over-polishing.”  Take, for example, the incident this summer in which British regulators banned L’Oreal from running ads containing these two photos of Julia Roberts and Christy Turlington.  L’Oreal’s marketers digitally enhanced both photos to the point that it could not prove to the regulators’ satisfaction that the advertised makeup products were able to produce results like the ones shown.

By definition, digitally enhancing physical reality is a fundamental element of what AR does.  This type of situation, therefore is one that AR marketers could very easily get themselves into if they’re not careful (and if they don’t run their content by trained lawyers first.)

Business Defamation

Of course, more than just “marketers” should be concerned about making false statements of fact that injure another person or company.   The law of defamation (a.k.a. libel or slander) provides a cause of action against anyone who publishes a demonstrably false statement of fact that injures another’s reputation.  We usually think of this cause of action in terms of a slander against an individual’s reputation.  But businesses can also bring defamation claims against those whose false statements injure the reputation of their products or services.

Therefore, augmented representations made of a product could potentially defame that product’s manufacturer, regardless of whether the augmented content was in an advertisement or some other context.

How might this scenario play out?  As one example, take this excerpt from a short story about AR law published in 2007. (*)  David, the protagonist, is an attorney in the near future bringing a defamation claim against a company for misrepresenting his client’s product in augmented space:

Wysiwyg—among the few manufacturing businesses left in the area—was David’s client. Its sales had dipped when the defendant, a competitor, issued press releases questioning Wysiwyg’s quality standards and business practices. David sued for defamation, and now sought to add an additional count based on his recent discovery that the defendant’s comments had been published in [augmented form] as well. …

Predictably, [the competitor's lawyer] stressed that the videos underlying the original complaint and their  3-D versions contained identical statements. He therefore argued that they collectively gave rise to only one cause of action under defamation law’s “single publication rule.”

“Concededly,” said David in response, “the virtual world is still a place where, from the law’s point of view,  the streets have no name…. But publishing the statements in virtual form adds significant content that is also defamatory. For example, the speaker is seen holding a part allegedly from Wysiwyg. A virtual viewer can pause and examine that object in three dimensions, gaining a significantly poorer impression of my client’s workmanship. And someone wearing v-gloves . . . could even pick the thing up and examine it. Virtual  actions, in this case, speak louder than words.”

Judge Darling stroked his chin and nodded. After a few additional questions, he granted David’s motion.

The story set this scene in the year 2022, but I’m willing to bet that we’ll see something like this happen well before then.

How about you?  What potentials for deceptive or misleading speech do you see in augmented digisphere?

 

* In the interest of full disclosure, this is from a story I wrote for a contest sponsored by the State Bar of Michigan.

 

First, They Came for the Doritos: AR Campaign Spurs Legal Complaint, With More to Come

October 24, 2011 in Augmented Reality, Social Media with 6 Comments

It’s on.

 

For real, this time.  Unlike the prisoner lawsuit I discussed last month, a newly filed legal complaint raises non-imaginary (although certainly still-untested) legal theories concerning an actual, commercial use of augmented reality.  AR litigation is now a cold, hard reality.  And the result of this initial salvo could have a huge impact on AR campaigns across the board.

The Specifics: Who’s Alleging What

On October 19, 2011, four consumer advocacy groups (the Center for Digital Democracy, Consumer Action, Consumer Watchdog, and The Praxis Project–who I’ll refer to collectively as “CDD”) filed a  Complaint and Request for Investigation with the Federal Trade Commission (FTC) against PepsiCo and its subsidiary, Frito-Lay.  The complaint calls on the FTC to investigate and bring action against these companies for allegedly “engaging in deceptive and unfair marketing practices in violation of Section 5 of the FTC Act.”  Together with their complaint, the CDD issued a press release and a detailed collection of case study videos–apparently from the advertisers themselves–explaining the challenged ad campaigns.

The CDD objects to several aspects of Frito-Lay’s online ad campaign for its “Doritos Late Night” line of products.  The campaign was a multi-faceted approach that employed  a variety of cutting-edge techniques.  Most of these are rooted in social media, such as the “Hotel 626″ and “Asylum 626″ social games.  (I’ll discuss these in more detail in subsequent posts. This post focuses on the AR aspects of the campaign.)

The ultimate point of the Complaint is to argue that Frito-Lay’s campaign deceives teens into eating too many unhealthy snacks, thus contributing to the childhood obesity problem.  For support, the complaint relies on a report called Digital Food Marketing to Children and Adolescents, conducted by National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN).  The Report (non-coincidentally released on the same day as the Complaint) begins from the unstartling premise that “contemporary marketing practices are increasingly multidimensional” and rely on social and relational methods rather than hard-sell advertising.

But the Report and the Complaint go on to call out five specific forms of outreach to which teens are “uniquely susceptible.”  At the top of that list are

Augmented reality, online gaming, virtual environments, and other immersive techniques that can induce “flow,” reduce conscious attention to marketing techniques, and foster impulsive behaviors ….

The CDD’s reasoning, therefore, is not limited to what Frito-Lay did.  But the Complaint chooses to single out the Doritos campaign as “particularly problematic.”

The Doritos Late Night Campaign

At least one, and arguably two, aspects of this campaign qualify as AR.

Most notable is the “Late Night Concert” featuring the band Blink-182.  Here’s how the Complaint describes it:

The Late Night music experience utilized “augmented reality,” an immersive marketing technique featuring a vivid interactive experience that can be personalized for individual users.  Bags of Doritos Late Night chips were printed with a special symbol to serve as a “ticket” for the concert. Flashing that symbol at their webcams would create the appearance of the stage popping out of the bag of chips.

The CDD also calls out a related feature involving the music video for Rihanna’s song “Who’s That Chick.”  The producers filmed two versions of the video with identical camera angles and choreography.  The only difference is that the default video is shot with “daytime” lighting and costumes, while the “Late Night” version has a “darker” backdrop and wardrobe.  Holding a Doritos Late Night bag up to a webcam while the video is playing will “unlock” the Late Night version and automatically switch between the two.  By at least some definitions, this, too, is augmented reality.

The Doritos Late Night campaign appears to have been a success.  According to the Complaint and the video case studies it cites, the website received almost 100,000 hits in its first week, with an average visit length of 4.5 minutes.

Next Steps for the Doritos Complaint

I’ve been careful to describe this as a “legal complaint” rather than a “lawsuit.”  The process that the CDD has started is not a “lawsuit” in the traditional sense of a plaintiff suing a defendant in order to get certain relief.

Rather, what the CDD has done is to gather all of the data it can find to support its argument, package the data in what it thinks is the most persuasive manner, and lain it all at the FTC’s doorstep, asking the FTC to do something about it.

The FTC’ has no legal obligation to act.  It can choose simply to do nothing.  The FTC is “empowered and directed” by Section 5 of the FTC Act (15 U.S.C. S45) “to prevent persons, partnerships, or corporations … from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.”  But it’s up to the FTC itself to decide whether such methods are being used, and if they are, whether “a proceeding by it in respect thereof would be to to the interest of the public.”  To reach that decision, it usually conducts an investigation first.

Even if the FTC does act, there’s no deadline for action.  It has been known in some cases to let investigations lie dormant for years, only to pick them up again and take action months or years later.

After investigating, if the FTC decides to act, it has two options under Section 5. First, it can file a lawsuit in federal court against the allegedly deceptive marketers, seeking an injunction against the unlawful practices and penalties of up to $10,000 “for each violation.”

Second, it can hold an administrative hearing, in which the FTC files a complaint and the marketer may defend itself before the Commission itself.  Any interested third party (e.g., the CDD) may petition to intervene and offer testimony.  That process can also result in an order that the marketer cease and desist the objectionable practice.  In either scenario, the ruling may be appealed to a U.S. Court of Appeals.

Meanwhile, PepsiCo has little it can do but wait, and to parry the CDD’s PR blitz.  ”We are aware of the filing to the FTC and believe it contains numerous inaccuracies and  mischaracterizations,” Frito-Lay spokesperson Aurora Gonzalez has been quoted as saying. ”PepsiCo and its Frito-Lay division are committed to responsible and ethical marketing practices. Our marketing programs, which are often innovative, comply with applicable law and regulations.”

Is Your AR Campaign the Next Target?

Those in the AR industry will recognize Doritos’ webcam-based AR advertising model as entirely commonplace.  Although the production values for the campaign appear quite high, the technique of holding a marker up to a webcam to activate content on a desktop monitor is first-generation AR that has been around as long as the industry itself (which is to say, at least a couple years).

In other words, there’s nothing about the technical aspects of this campaign that make it “particularly problematic.” Rather, the CDD is on a mission to reduce the consumption of junk food by teens.  This campaign used AR to sell teens such food, so it attacked AR.  Presumably, if the Ad Council were using AR to lower teens’ inhibitions against quitting smoking, the CDD would not object.

But Doritos Late Night is far from the only campaign on the CDD’s radar.  The CDD has already made it known that, while PepsiCo “is in forefront … we are likely to file other complaints in the next year or so.”  And the CDD’s website about the complaint lists some specific examples of other campaigns it objects to.  Some of the examples on that list were also successful AR campaigns.

The reasoning behind the Doritos Complaint doesn’t stop at foods, either.  Consider this passage from the Complaint about the ills of “immersive” environments:

Frito-Lay’s ability to disguise its marketing efforts is further enhanced by the use of “immersive” techniques. Immersive marketing is designed to foster subjective feelings of being inside the action, a mental state that is frequently accompanied by “intense focus, loss of self, distorted time sense, effortless action.” Immersive environments can also induce a state of “flow,” causing individuals to lose any sense of the passage of time. Immersive environments use augmented reality techniques to deliberately blur the lines between the real world and the virtual world, making the experience even more compelling, intense, and realistic. In such an emotional environment, a teen is even less likely to recognize that the game or concert event is marketing for the reasons discussed above.

The same reasoning could be applied to adults, and to the use of immersive AR to sell virtually anything. Some of the most active discussion on this blog has been on that very subject.  If the CDD makes any headway with this argument in fighting snack sales, who will use it next against some other use of AR?  ”Immersion” is the sine qua non of AR.  The CDD’s line of attack, if successful, could pose a potentially existential threat to a large portion of the AR industry as we know it.

Of course, we don’t currently have reason to conclude that the people behind the Doritos Late Night campaign did anything wrong, or that the FTC will ultimately take any action on the matter. Any discussion of the merits of this particular dispute is necessarily one-sided at this point, because we’ve only heard one side of the story.  People in the AR industry (many of whom, I’m honored to say, read this blog) could tic off a laundry list of ways that AR can positively impact the consumer experience.

But that won’t stop additional complaints from being filed.

Take-Aways

  •  AR is on the radar of consumer watchdog groups.  They see “immersive” as a code word for “deceptive.”
  • Any AR advertising campaign targeting teens or other groups that are arguably more vulnerable to suggestion should be particularly wary of attacks by such groups.
  • Be careful about how you describe your own campaigns!  The CDD’s complaint and website is chock full of quotes and excerpts from the Doritos advertisers’ own case studies.  Be aware that someone may try to use your own words against you.
  • Start making notes about how your use of AR benefits consumers and the public.
  • Get legal advice about what constitutes “unfair and deceptive practices” while you’re designing your campaign, not after it’s over.
Acknowledgment: In preparing this post, I consulted one of my law partners, Attorney David Ettinger, who has extensive experience with FTC investigations. Many thanks for his useful insights into FTC procedure.
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