The second panel, entitled “Law, IP and Ethics in AR” featured patent attorney and inventor Brett Krueger; Matt Symczyk , president of Zugara; patent attorney Ben Esplin; and ethicist Nicola Liberati of the University of Pisa, Italy:

Social media allows businesses to communicate with clients and other businesses in a way that was not possible in the past.  Unfortunately, this ease of communication comes at a price.  A seemingly harmless interaction through a social media network may negatively affect contracts or cause a company to be liable for tort.

A.  Modifying the Terms of a Contract

The advent of instant messaging has affected contracts and contract performance.  A federal court in Florida held that an instant message exchange modified the terms of the plaintiff’s contract with the defendant.  The court’s decision in CX Digital Media, Inc. v. Smoking Everywhere, Inc., No. 09-62020-CIV-Altonaga, 2011 U.S. Dist. LEXIS 29999, at *1 (S.D. Fla. Mar. 23, 2011), is a reminder to companies and their employees that a few short instant message exchanges can change the terms of a contract and expose a party to liability for breach of contract.

CX Digital Media, Inc. (“CX”) controlled an affiliate marketing network that ran websites and ad campaigns for CX’s clients.  Each time an affiliate referred a sale to a client, CX received a referral fee.  In August 2009, Smoking Everywhere signed an insertion agreement with CX, in which Smoking Everywhere would pay CX for each referral of certain Smoking Everywhere products, up to 200 sales per day.  In September 2009, CX and Smoking Everywhere had the following instant messaging conversation:

[CX]: We can do 2000 orders/day by Friday if I have your blessing.

[CX]: [T]hose 2000 leads are going to be generated by our best affiliate and he’s legit.

[Smoking Everywhere]: I am away from my computer right now.

[CX]: And I want the AOR when we make your offer #1 on the network.

[Smoking Everywhere]: NO LIMIT

[CX]: awesome!

Following that conversation, CX’s affiliate referred over 1,000 sales per day for Smoking Everywhere, but Smoking Everywhere refused to pay the referral fee.  Smoking Everywhere claimed that CX violated the terms of the insertion agreement, which capped referrals at 200 per day.

The court held that the instant message conversation modified the terms of the insertion agreement.  CX offered a new term by suggesting it could get 2,000 referrals per day.  Smoking Everywhere’s response of “NO LIMIT” was a counter-offer, which CX accepted by saying, “awesome!”  The terms of the insertion agreement required that all modifications be in writing and signed by both parties.  The court held that the instant message conversation constituted a writing, and while it was not signed by both parties, “under Delaware law, conduct or statements could modify a written contract with a signed writing clause, and therefore, an unsigned writing could as well.”  Smoking Everywhere argued that its Vice President of Advertising, who participated in the instant message exchange, did not have the authority to act on behalf of the company.  However, the court determined that the Vice President “had apparent authority to bind Smoking Everywhere, and CX reasonably relied on this authority.”

Companies should be cautious regarding who may interact with other contracting parties.  Other parties may rely on the words of one employee, who may not be vested with the authority to make certain vital business decisions, yet the court will enforce the agreement if it determines that the employee had apparent authority.

B.  Breach of Contract

A company’s social media accounts are considered assets.  Thus, settlement agreements may require a party to relinquish social media accounts to another party.  In Integrated Waste Solutions, Inc. v. Goverdhanam, No. 10-2155, 2012 U.S. Dist. LEXIS 98307, at *1 (E.D. Pa. July 13, 2012), parties signed a settlement agreement, in which the defendant was required to relinquish all social media accounts relating to the plaintiff’s dumpster business.  The defendant relinquished the company’s Twitter and Facebook accounts, but failed to provide the company’s LinkedIn account because he was not aware the account existed.  Upon discovering that one of the defendant’s former employees created the LinkedIn account, the defendant traveled to India to retrieve the account information.  Although the defendant did not provide access to the LinkedIn account by the agreement’s deadline, the court held that the defendant did not breach the contract because he made a good faith effort to give the information to the plaintiff.

Therefore, failing to provide access to a social media account, when required by contract, may constitute a breach of contract–although the court in Integrated Waste Solutions created a “good faith exception” to this general rule.

This content has been added to Wassom on Social Media Law, my ever-evolving e-treatise on the law of social media. 

There will be more to report from AWE2013, but for starters, here is the interview I did with Joe Rampolla, host of the ARDirt podcast and of AWE.tv, which itself is another great innovation featured at the conference:

Facebook was invented for college students by college students, and despite the increased use of Facebook and other social media sites by the general public, college students remain important users of this technology.  Facebook and social media are central to communication of social, political, religious, and cultural events on campus.  These sites also provide a forum for the expressing and sharing of viewpoints and opinions.  Just as in the primary and secondary school settings, Facebook usage can lead to student discipline.

Absent truly threatening words (considered below), the courts have struggled to determine exactly what standard governs the online speech of students.  Universities are generally given a great deal of discretion by the courts to make determinations on academic issues.  Student discipline is not always an academic issue, however, and the courts do not owe deference to university leadership when considering the constitutional limits on university action.  These issues are often complicated by university codes of conduct, which create contractual relationships which may limit student speech rights.

A.  Discipline for Non-Threatening Posts

Obtaining permission to post photographs or comments has been an effective means for students to protect themselves from discipline for those posts.  In Byrnes v. Johnson County Community College, a 2011 federal case from the District of Kansas, Doyle Byrnes and others were dismissed from the Nursing School at Johnson County Community College (JCCC) for photos they posted on Facebook.  At a clinical course on obstetrics and gynecology, the students took pictures of themselves with a placenta they were examining.  The instructor granted permission to take the photos, and in response to the girls’ statements that they would post them on Facebook, she said “Oh, you girls.”  No identifying marks were present on or near the placenta, meaning that patient privacy was not compromised by the pictures.

The JCCC administration did not assert that any schoolwide or program specific code of conduct had been violated; instead, they argued that the post violated the “sense of propriety” of school officials.  The court found this to be “unclear, unpublished, and unfair to require students to comply with.”  In addition, the court found that permission had been granted by the Nursing School instructor to take and post the photos.  “Photos,” the court stated, “are taken to be viewed. . . . By giving the students permission to take the photos, which [the instructor] admitted, it was reasonable to anticipate that the photos would be shown to others.”  The court ordered Byrnes be reinstated to the Nursing Program at JCCC.

In contrast, when specific school or program rules—as opposed to administration norms of “decency”—are violated by an online posting, courts have upheld university discipline, although the standard by which courts will review such decisions is far from set in stone.    In Tatro v. University of Minnesota, Amanda Tatro, a student in the Mortuary Science Program at Minnesota, was sanctioned by the university for a series of Facebook posts she made in late 2009.  The laboratory class rules permitted “respectful and discreet . . . conversational language of cadaver dissection outside the laboratory” but absolutely banned blogging about the course, which the students were told included posting to Facebook and other social media sites.  Punishment for violating the course rules included removal from the course.

Tatro posted four times in November and December about her experience with “Bernie,” the cadaver on which she was training.  One post referred to getting to “play” with Bernie; others referred to Tatro having “lots of aggression to be taken out with a trocar” and “want[ing] to stab a certain someone in the throat with a trocar.”  (NOTE: A trocar is a tool used in the embalming process.)  Several staff members reported feeling unsafe as a result of these posts.  Discipline proceedings were initiated against Tatro, who claimed to not understand that her posts were within the scope of the ban on blogging.  The conclusion of the university proceedings led to Tatro being given a failing grade in the course, among other penalties.

In 2011, the Court of Appeals of Minnesota upheld the university’s decision applying the Tinker “substantial disruption” framework.   In 2012, yhe Supreme Court of Minnesota affirmed, but on different grounds.  Tinker, the high court stated, was inappropriate for the punishment the school handed down, which focused on professional conduct, not disruption.  Instead, the court “consider[ed] the special characteristics of the academic environment of the Mortuary Science Program and its professional requirements” to determine the proper analysis.  The court articulated the following legal rule to govern such discipline: “a university may regulate student speech on Facebook that violates established professional conduct standards…with the qualification that any restrictions on a student’s Facebook posts must be narrowly tailored and directly related to established professional conduct standards.”  The policy and discipline fit this standard, the court held, so Tatro’s sanctions were upheld.

Professional lab courses seem to be a common source of First Amendment conflict.  In Yoder v. University of Louisville, Nina Yoder, a nursing student, was dismissed from the university for posts she made on her MySpace page.  After observing a live birth for a childbearing class, Yoder wrote a long blog post describing the birth in what the Sixth Circuit referred to as “a less-than-flattering tone.”  The university cited the nursing Honor Code and patient confidentiality as grounds for dismissal.  Rather than exhaust her remedies at the university, Yoder filed suit in federal court, claiming, under 42 U.S.C. § 1983, that the university and several administrators had violated her First Amendment right to free speech and her Fourteenth Amendment right to due process.

In a 2009 decision, the District Court for the Western District of Kentucky ordered Yoder reinstated as a student, ruling on breach of contract grounds.  The court held that the post could not be used to identify the woman giving birth, and therefore did not amount to a breach of patient confidentiality under the Honor Code.  Similarly, the court found that Yoder’s post did not violate the “professionalism” requirement, despite being “a crude attempt . . . to be humorous;” because the post was “non-professional” rather than as a representative of the school, Yoder had not violated the policy.

The Sixth Circuit, however, reversed and remanded the district court decision in 2011.  The circuit court ruled that Yoder did not allege any breach of contract, and thus the district court could not award Yoder reinstatement on these grounds.  The case was remanded for the lower court to address directly the free speech and due process claims.  The district court, in March of 2012, this time upheld the dismissal.  As to Yoder’s First Amendment claims, the court ruled that, by signing a consent agreement to participate in the course, Yoder agreed to only communicate with the professor regarding the live birth.  The posts on MySpace were outside the scope of the agreement and therefore were not constitutionally protected.  The Sixth Circuit recently affirmed.

B.  True Threats

Much like in the high school context, true threats of violence receive minimal First Amendment protection.  Two recent cases, both involving student posts shortly after the tragedy at Virginia Tech, shed light on the contours of the analytical framework applied.

In United States v. Voneida, a case decided in 2009, the Third Circuit upheld the criminal conviction of Steven Voneida, a student at the Harrisburg campus of Penn State.  Just days after the Virginia Tech shootings, Voneida posted on his MySpace page a series of statements and pictures expressing desires or intentions to commit similar attacks and glorifying the acts of the shooter.  Students on campus and at another school, all of whom were MySpace “buddies” with Voneida reported the posts to the police, expressing fear for students on campus.

Voneida was charged and convicted of transmitting a threatening communication, a federal offense.  The Third Circuit found that the unique context of the Virginia Tech shooting and the comments—in particular, “I’ll make the Virginia Tech incident look like a trip to an amusement park”—amounted to “a serious intention to inflict bodily harm.”  The Court also held that the postings satisfied the “transmitted in interstate commerce” element of the law at issue and could not be classified as a diary-like entry: “For other MySpace users to view the statements…the postings had to pass through the main internet server, located in California.”  In addition, notifications of the posts were transmitted to Voneida’s “buddies” and comments from these “buddies” were permitted on the page, facts which distinguished the posts from a personal diary.

In order for the state (or the state acting through a university) to take action against a student for threatening posts, the threats must be actual threats.  In Barnes v. Zaccari, a 2012 case from the Eleventh Circuit, Ronald Zaccari, President of Valdosta State University, expelled Thomas Barnes from the university in response to flyers and Facebook posts made by Barnes.  Barnes organized a student campaign in protest of the construction on campus of a new parking deck.  As part of this campaign, Barnes emailed Zaccari frequently about his views on the environment, proposing alternatives to the garage; Barnes and Zaccari even met on April 16 (the same day as the Virginia Tech massacre) to discuss Barnes’s protest.  While this was ongoing, Zaccari monitored Barnes’s Facebook page.

Shortly after the events at Virginia Tech, Zaccari came across several Facebook posts by Barnes which caused him concern: a collage entitled “S.A.V.E. — Zaccari Memorial Parking Garage;” a post about cleaning up his mind; and a link to an article about coping with mental illness after the Virginia Tech tragedy.  Zaccari proactively sought justifications for removing Barnes from the university, even going so far as blaming the tripping of his home alarm on Barnes.  Despite a lack of evidence to tie Barnes to this incident, Barnes’s satisfactory academic performance, and repeated reports by mental health professionals that Barnes posed no threat to the campus community, Barnes was expelled without notice or hearing.  Barnes requested a hearing with the Board of Regents, which was never granted.  Barnes filed suit against Zaccari and the Board, after which he was reinstated.

Zaccari moved for summary judgment on the grounds that he was entitled to qualified immunity.  In order to rebut a claim of qualified immunity, the plaintiff must demonstrate that the state official violated a constitutional right and that the right was clearly established at the time of the violation.  The Eleventh Circuit found that Barnes was entitled under Georgia law to continued enrollment, a right meriting Due Process protection: “[N]o tenet of constitutional law is more clearly established than the rule that a property interest in continued enrollment in a state school is an important entitlement protected by the Due Process Clause.”  The state was required to provide notice and some sort of hearing.  Threats may amount to an actual or reasonably perceived emergency, in which case process is not required.  The Court found that Barnes’s behavior, including the Facebook posts, did not necessarily indicate an intention to harm anyone, and that an objectively reasonable person would not have found Barnes presented a threat to safety; therefore, no emergency existed.  The court also found that the right was clearly established at the time: a reasonable university president would have known that the action was unlawful.  The code clearly established that expulsion required cause and process.  The case was remanded to proceed on the merits of Barnes’s claims against Zaccari.  (NOTE: the claims against the Board were dismissed on Eleventh Amendment immunity grounds.)

C.  Social Media and the Associational Rights of Students

In 2010, the Supreme Court addressed the issue of the associational rights of college students, and student access to social media played a role in the majority’s decision.  In Christian Legal Society of the University of California, Hastings College of the Law v. Martinez, the Court upheld the “all-comers policy” which the Hastings College of Law has in place to govern the formal recognition of “Registered Student Organizations” (RSOs).  In order to become an RSO—bringing with it many benefits, including of use of school funds, facilities, communication channels, and the university name and logo—a student organization “must allow any student to participate, become a member, or seek leadership positions, regardless of her status or beliefs.”  The Christian Legal Society (CLS) bylaws bar homosexuals or anyone with religious beliefs at odds with the Statement of Faith from membership; Hastings denied CLS status as an RSO due to this exclusionary policy.  CLS filed suit, partially on the grounds that Hastings had violated their First Amendment right to expressive association.

The Court upheld the all-comers policy as a reasonable, viewpoint-neutral restriction.  Important to this determination was CLS’s access to social media.  Despite losing access to official university channels, “the advent of electronic media and social-net-working sites reduces the importance of those channels.”  The Court saw a history of private organizations—“from fraternities and sororities to social clubs and secret societies”—having strong campus presences without official recognition; CLS, like these organizations, had established a strong presence without access to official resources.  Justice Alito, writing in dissent, was highly critical of this emphasis on social media, saying that the majority had “brush[ed] aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad.”

Relying on the decision in Christian Legal Society, the Ninth Circuit upheld a similar but narrower policy in Alpha Delta Chi-Delta Chapter v. Reed in 20011.  San Diego State University denies official status to student organizations which restrict membership or participation “on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition.”  The challengers, Alpha Delta Chi and Alpha Gamma Omega, are a Christian sorority and fraternity, each of which require acceptance of various religious tenets to be a member.  Citing Christian Legal Society, the Ninth Circuit found that “access to all the non-university electronic channels mentioned by the Supreme Court, as well as new resources invented since then” was relevant to the analysis of the reasonableness of the policy.  The Ninth Circuit held that the policy was reasonable and viewpoint neutral and therefore not a violation of the First Amendment right to association.

D.  Students at Private Universities

As in the K-12 setting, students at private universities do not enjoy the same First Amendment protections as their public school counterparts.  In the 2009 case Key v. Robertson, the District Court for the Eastern District of Virginia dismissed Adam Key’s lawsuit against Regent University and Pat Robertson (the famous televangelist and the university’s chancellor).  Key was a law student at Regent when he posted to his Facebook page a doctored image of Robertson giving the middle finger.  After being asked to remove the image from Facebook, Key complied but attached the image to a post on Regent’s LISTSERV, a private web forum for students, faculty, and staff.  He followed up with several posts about the image, saying in one that the picture demonstrates “Robertson is a very bad man.”

Instructed to issue an apology or file a brief challenging any discipline, Key decided to fight the Regent administration, both through administrative channels and the press.  At the same time, other students reported bizarre behavior by Key, including rumors that he kept a gun in his car on campus.  While the legitimacy of these rumors was never established, it came out that Key did carry without permission an electric stun gun on campus.  Regent provided Key with several opportunities to resolve these issues internally, including seeking mental health treatment  and appearing before the administration to address the various concerns.  However, Key ignored these remedies, was suspended for one year, and then filed suit in federal court.

All of Key’s claims were dismissed by the district court on summary judgment.  As to Key’s claim that his First Amendment rights had been violated, the court held that Key failed to establish that the government had infringed upon his free speech rights.  In addition, Key claimed he had been defamed by Robertson, who said Key had manipulated the image that was posted.  The court found Robertson’s statement to be “entirely true, and thus incapable of being defamatory.”  All other claims were dismissed as well.

***

            In sum, the only thing clear at this point in time is that the law governing the discipline of university students for use of social media is even less clear than the law governing the discipline of K-12 students for such behavior.  Courts have applied various standards, including relying on theories of contract and waiver, which do not cohere into a single doctrine.  Until more circuits—or the Supreme Court—address the issue, trial courts will most likely apply different tests on a case by case basis.

This content has been added to Wassom on Social Media Law, my ever-evolving e-treatise on the law of social media.

Here is a brief summary of some of the remarks I made:

• Patent Trolls.  In almost every technological field nowadays, there is a patent owner out there filing lawsuits that accuse users of new and innovative technologies of infringing a patent.  And increasingly, those plaintiffs are targeting retailers who license the technology for a particular campaign, rather than software designers who have a vested interest in defending against the litigation.  Within the past year, one of these trolls began targeting retailers who use webcam-based AR apps that allow customers to visualize themselves “trying on” a particular accessory.  That shouldn’t necessarily deter retailers from getting involved in AR-vertising, but they should be aware of the risks.  If you’re going to swim in this ocean, know that there are sharks in the water.
• Advertising Regulations.  The current hot topic in digital advertising law is where disclaimers and disclosure should go and what they should say in order to make sure that customers have a reasonable chance to see and understand them.  So, for example, when a weight loss company “pinned” real weight loss stories on Pinterest, it got in trouble for putting the required “These Results Aren’t Typical” disclaimers on a hyperlinked page rather than in the pins themselves.  The FTC wants similar disclaimers to appear within tweets on Twitter, and close enough to website text that it will be visible on mobile browsers.  But when your content becomes three-dimensional and interactive with the physical world, where will the disclaimers go?  Will they have to appear in “augmented space” as well?  For now, AR experiences happen through mobile apps, so the likely answer is that those apps can include most disclaimers in a separate tab like any other app.  But as the augmented content gets more significant and interactive, these questions will get thornier.
• Physical Injury.  I doubt if many, if anyone, in the audience had ever worried that a consumer might hurt themselves while viewing their ad.  But what turns digital content into augmented content is its interactivity with physical places and things.  So as advertising moves into the augmented medium–especially if it includes “game” mechanics that require users to go looking for digital objects in physical space–marketers will need to pay close attention to the surroundings into which they ask consumers to go.
• The Internet of Things.  The panel had a great discussion about AR’s utility as a window into the Internet of Things.  One panelist pointed to the dishwasher as a device that collects a great deal of information, but would not be cost-effective if it included a digital screen for displaying that data.  AR, however, will allow users to gather disparate bits of digital data and view it in a format that is easy to read and navigate.  The flip side of that utility, however, will be the capability to gather and display information that people might rather not have gathered and displayed.  One example that will particularly unnerve people is when facial recognition technology turns every one of us into “things” within the Internet of Things.  Then, those of us with the right AR device will be able to see a single display containing all sorts of information about every person we may pass on the street.
  

Some reactions to our panel discussion:

@techbradwaid @bdwassom @daqri @adcraftclub Had a great time at the Adcraft AR seminar last night. Thanks to all who contributed. @smamiorg

— Sean Wilson (@Seansplace) May 31, 2013

@bdwassom Great job last night @adcraftclub event! @techbradwaid and I thought it was a great event with a lot of info.

— Drew Minock (@TechMinock) May 31, 2013

@brianlbos @mrlaserbeam @mcwet @bdwassom Thx for a very informative panel & answering my questions about #AR application in #BigData

— Evelyn Chou (@Evyfindstheway) May 31, 2013

This sampling illustrates the breadth of unexpected and challenging issues that marketers in particular and society as a whole will face as AR becomes more mainstream.  Join us next week at the Augmented World Conference 2013 to learn more!

(c) flickr user terriko

In the comedy classic Dumb & Dumber, a woman tells Jim Carrey’s character that his chances with her are “one in a milion.”  Undaunted, he responds, “so you’re saying there’s a chance!”

The augmented reality industry’s chances of seeing the patent that Lennon Image Technologies has been using for the past year to wreak havoc on its customers get erased by the U.S. Patent and Trademark Office (USPTO) are quite a bit better than that.  (Better, even, than the 1-in-100 odds that Jim had hoped for.)  That’s because the patent is currently subject to ex parte re-examination.  But that process has already been underway for several months, it turns out, and with each day it takes, Lennon is continuing to make life difficult for retailers using AR.

Ex parte reexamination, is a process by which a third party submits a request for a three-examiner panel of the USPTO to take a second look at an already-granted patent based on certain prior art.  The art  submitted by the third party must raise “substantial and new question of patentability.” Generally speaking, once that submission is made, the process only involves the patent owner and the USPTO.

As part of its overhaul of the US patent system, the America Invents Act drastically increased the filing fees for ex parte re-examination requests,  from $2,520 to $17,750.  That hike took effect on September 16, 2012.  So naturally, there was a huge run-up in such filings in the days before that deadline. One such re-examination petition–filed on September 15, 2012–asked the USPTO to re-examine Lennon’s patent.  It was submitted by an attorney, but the party for whom he did it is allowed to remain anonymous.

Of course, that was months ago, and there has been no decision yet.  That’s not surprising; this process can take months or even years, especially considering the enormous glut of requests that the USPTO received last September.

Still, the delay allows Lennon to do more damage.  Its strategy of targeting retail clients of AR developers is not unique.  Patent trolls actually sue more non-tech companies over software patents nowadays than they do tech companies, with retail being among the hardest hit of all.   That’s because the companies behind the software have a vested interest in defending it, while retail clients–who likely just licensed the technology as a one-off experiment–are much more keen to simply pay a nuisance settlement to get rid of the litigation, which the troll then uses to fund the next round of litigation.  In light of the number of lawsuits that Lennon has filed and companies targeted so far–at least 13 lawsuits with around 20 defendants, including many of the biggest names in retail–every day that it’s allowed to continue hurts adds to the hurdle that the fledgling AR industry must overcome in order to succeed in the mainstream economy.

flickr user ricksask

On the other hand, college students are also proving increasingly adept in using social media to torment and manipulate their peers, and more of these situations are resulting in discipline.  The entire world is now familiar with the story of Rutgers student Tyler Clementi, who jumped to his death in 2010 after roommate Dharun Ravi surreptitiously used a webcam and iChat to broadcast Clementi’s sexual encounters online.  Earlier this year, sports media got caught up in the “catfishing” scam that fooled college football player Manti Te-o into thinking he had an online girlfriend.

Around the same time that Te-o was in the midst of this scam, two students at Ball State University were actively carrying out a similar plot against a former roommate of theirs at the school.  In the fall of 2011, they created a fictional high school sophomore named “Ashley,” through which they initiated an online relationship with the student (who would come to be referred to only as “Target” in subsequent litigation.)  The plot was so elaborate that the students–Messrs. Zimmerman and Sumwalt–even enlisted the help of an actual teen girl to text with the Target.

Zimmerman and Sumwalt eventually arranged for Target to meet “Ashley” at a movie theater.   But when he showed up, they were waiting for him with a video phone, which they used to record and post the encounter to YouTube with the title “[Target] is a pedophile.”

Target reported the harrassment–which also included on-campus physical pranks–to university authorities, which eventually led to disciplinary action under the school’s Code of Conduct.  Zimmerman and Sumwalt admitted that their actions violated the Code, but later brought suit challenging the university’s right to discipline them.

In April 2013, the US District Court for the Southern District of Indiana rejected their claims and upheld the punishment.  Although universities are not governed by the same First Amendment balancing test that the Supreme Court laid out for public K-12 schools in Tinker–in which schools may punish student expression if it threatens a substantial disruption of the learning environment–the Indiana state statute governing universities’ disciplinary power used similar language.   Specifically, it enabled universities “to prevent unlawful or objectionable acts that … violate the reasonable rules and standards of the state educational institution designed to protect the academic community from unlawful conduct or conduct presenting a serious threat to person or property of the academic community.”

Not only did Zimmerman and Sumwalt maintain that their catfishing scheme was First Amendment-shielded expression, they also argued that it wasn’t “objectionable” under the statute.  The court didn’t buy it.  To the contrary:

The Court fails to see how their actions could not be considered objectionable. Further, it appears from the sequence of events that at least part of the Students’ goal was to “trap” the Target into facing criminal consequences for communicating with someone they wanted him to think was an underage female. Even throughout the disciplinary process, the Students were encouraging Ball State to investigate the Target for criminal behavior, going so far as to state that the Target “has committed a felony of child solicitation…,” and to assert that “[w]e are concerned that the persons involved seem to be expressing indifference to criminal behavior and sheltering the accused.” The Court finds that no reasonable jury could conclude that the Students’ entire scheme, culminating in videotaping the Target at the movie theater and posting the video on YouTube, was not objectionable.

Few reasonable minds could disagree with this conclusion.  As the Court recognized, however, its ruling may stand in opposition to the direction society is moving on this issue.  It took note that the term “catfishing,” which had only been coined in 2010, had already spawned an MTV reality show of the same name, and had become a sufficiently popular source of entertainment that it “ may cause viewers to lose that connection to it being a real event that left people feeling violated and hurt.”

All of this portends that the Ball State incident is highly unlikely to be the last catfishing scheme that school administrators at both the college and K-12 levels will be forced to deal with.

Of course, it also means that the field of available, catchy marks is filling up, which will inevitably lead to disputes between rights holders and trademark infringement litigation.

But for now, I’m just interested in taking note of the various commercial identities that different people and companies are staking out by way of applications and registrations with the U.S. Patent and Trademark Office.  Below are some of the more intriguing and perhaps unexpected examples that I’ve discovered:

MARK: FIELD GLASSES

Description: Downloadable software in the nature of a mobile application for displaying augmented reality information.

App. S/N 85818263

Filed: January 8, 2013

Owner: Civil War Preservation Trust

Mark: CYBERCODE

Description: computer software embedded in smart phones, tablet personal computers and video game players which enables users thereof to use camera devices in such units to read symbols which provide augmented reality of the digital content associated with said symbols.

No: Reg. No. 4314961

Filed: April 4, 2011

Owner: Sony

Mark:  ZOMBIE SLASHER

Description (excerpt): Providing online augmented reality games.

No: 4305868

Filed: June 1, 2011

Owner: Iconosys, Inc.

Mark: 

Description (excerpt):  Computer programming services for creating augmented reality videos and games

Reg No: 4224049

Filed: Apr. 15, 2011

Owner: Liu Qiu Yan

Mark ARBALL

Description:  Computer application software for mobile phones, namely, software for use in playing augmented reality games.

Reg No: May 29, 2012

Owner: Augaroo, Inc.

Mark:   SIGHTSPACE

Description (excerpt): computer hardware and software for displaying augmented reality and virtual reality imagery, and component parts; computer programs, namely, augmented reality programs for commercial and industrial use

Reg No: 4131585

Filed: Aug. 22, 2011

Owner: Limitless Computing Inc.

Mark:  LETTERS ALIVE

Description: Educational software featuring interactive augmented reality platforms to provide instruction in reading.

Reg No: 4032741

Filed: Nov. 11, 2010

Owner:  Logical Choice Technologies, Inc.

Mark: WAAR

Description:  Printed pieces of paper featuring markings in the nature of augmented reality markers for use with software applications; computer game instruction manuals

Reg. No. 4329971

Filing Date: Feb. 11, 2012

Owner: Sony

Mark: 

Description:  Computer software for enabling image recognition and/or augmented reality technology on mobile phones, tablets, and handheld gaming devices; computer software using image recognition and/or augmented reality technology for browsing, searching and delivery of advertising information and entertainment content for use with mobile phones, tablets and handheld gaming devices

Reg No: 4252059

Filed: Sept. 13, 2011

Owner: Zappar Ltd Limited Company

Mark: THART

Description: Entertainment services, namely, production of multimedia augmented reality experiences for entertainment purposes that allow for audience participation available both via the Internet and at live show performances

Reg No: 3344096

Filed: July 1, 2006

Owner: Blanksby, Catherine

Mark: DEADLY TRAINING SCENARIOS… WITHOUT DEADLY CONSEQUENCES

Description: Technical consultation and engineering services in the field of augmented reality

Reg No: 2988623

Filed: Mar. 19, 2004

Owner: Harmless Hazards Training, LLC

And of course, the one closest to my heart:

Mark: AUGMENTED LEGALITY

Description: On-line journals, namely, blogs featuring commentary and information in the field of augmented reality, especially from a legal perspective.

Reg No: 4093521

Filed: May 28, 2011

Owner: Wassom, Brian D.

Ditto, a company of 15, launched just over a year ago.  Its site features sharply executed, webcam-based augmented reality interactivity that shows users what they’d look like wearing any number of frames.

This apparently caught the attention of its more-established competitor, 1-800-Contacts.  According to the EFF, “1-800-Contacts’ CEO went onto Ditto’s website the very day it launched, presumably to investigate the upstart competitor’s new technology. Having seen Ditto’s product, 1-800-Contacts then went out and purchased a patent from a defunct company that claims to cover selling eyeglasses over a network using a 3D model of a user’s face.”  To date, 1-800-Contacts still doesn’t offer a competing service, but it says that it intends to launch one soon on its Glasses.com site.

What angers the EFF even more is the apparent strategy behind the lawsuit.  Rather than seeking a royalty from Ditto, 1-800-Contacts “seems determined to put Ditto out of business. Period.”  Adding insult to injury, 1-800-Contacts chose to file its complaint in Utah, rather than in Ditto’s home state of California or the patent infringement hotbeds of Delaware or Texas.  All of this has the EFF, the fashion press, and even Congress asking whether litigation like this and the patents underlying them threaten to squelch innovation in software development.

With the broader augmented reality industry just beginning to come into its own, now is the right time to be asking these questions.

1-800 Contacts v. DITTO Technologies

(c) flickr user marchange – CC licensed

Now Lennon is at it again with another seven, nearly identical lawsuits filed last month in the U.S. District Court for the Eastern District of Texas.  (Both this court and the one in Delaware are hotbeds for this sort of litigation.)  These lawsuits name Macys Inc., Bloomingdales, Ditto Technologies Inc., Fraimz LLC, Lumondi Inc., Luxottica Retail North America Inc.,  Safilo America Inc., and Tacori Enterprises.  Again, the allegations revolve around “virtual try-on” and “magic dressing room” technology used by these retailers to give customers at home a chance to see on their computers in three dimensions what a product would look like on them.

Just as happened after the prior round of lawsuits, the defendants appear to have deactivated the features on their websites as a precaution.  Whether they launch again will likely depend on how the lawsuits resolve.

This sort of litigation activity is worrisome for the nascent augmented reality industry, which is still made of almost exclusively of small, ambitious start-ups.  ”Magic mirror” and “virtual dressing room” technology has been a staple of early AR innovations, and (as these lawsuits demonstrate) has really begun to catch on with retailers and customers alike.  On the other hand, it isn’t like we didn’t see this coming, either.  As AR starts to attract real money, we can expect it to give rise to at least as many patent fights as the mobile phone industry is currently dealing with.

Let’s just hope that litigation like this doesn’t unnecessarily deter developers from pushing AR technology forward.  The industry has only barely begun to scratch the surface of this technology’s potential.