You can download a copy of the book in PDF here.  And I’d love to hear your feedback on it.

Today I got the chance to give a solo presentation on “AR Law: What’s Around the Corner?”  In 15 minutes, I summarized just a few of the many legal potholes that await AR startups along the road to success.  The three topics I focused on were ARvertising, Privacy, and Negligence/Personal Injury.   I also distributed flash drives loaded with free copies of my new e-book Augmented Legality 1.0, which organizes and collects many of my AR blog articles from the past year.  If you didn’t get a flash drive either in your registration materials or at the presentation, you can download a copy of the e-book here.

But again, there was so much more going on today than just my brief talk.  Here are a collection of tweets from those in attendance today:

Adrian Cheok talking about Lovitics – transmitting love using robots. Kissenger system for remote kissing. #are2012 twitter.com/patchedreality…

— PatrickOShaughnessey (@patchedreality) May 9, 2012

Innovega hybrid contact lens & eyewear coming “within 3 years”. #are2012 #iwant twitter.com/patchedreality…

— PatrickOShaughnessey (@patchedreality) May 9, 2012

Mark Billinghurst quote “anyone pointing a camera at me should be prepared for a lawsuit” (problem of AR on phones) #are2012

— Adrian David Cheok (@adriancheok) May 9, 2012

@bdwassom intriguing food for thought on all of the potential legal pitfalls facing AR in the future. #are2012

— PatrickOShaughnessey (@patchedreality) May 9, 2012

Mark emphasizes a point that I feel very strongly about in the AR space… not enough testing or evaluation of products/experiences #ARE2012

— Howard Ogden (@HowardsReality) May 9, 2012

Mark Billinghurst giving smart, sensible talk about AR UX design & evaluation #are2012 His lab hitlabnz.org does good work.

— Gene Becker (@genebecker) May 9, 2012

Great writeup on #ARE2012, thanks @rafe j.mp/J1eaoR That quote at the end was our CEO Brian Mullins – @mrlaserbeam

— daqri.com (@daqri) May 9, 2012

My slides and speaker notes from my #ARE2012 talk @arealityevent“Augmented Awareness & Reality Games” ugotrade.com/2012/05/09/aug…

— Tish Shute (@TishShute) May 9, 2012

Paper on Moving beyond Mixed/Dual/Blended Reality meshes well with @neb‘s talk. Layering contexts is #PoSR dfki.de/LAMDa/2012/acc… #are2012

— AnthroPunk (@AnthroPunk) May 9, 2012

Arrive at an airport, download a set of all of the city’s transportation and destination options.Cool idea from @fianxu at @daqri #are2012

— Brian Wassom (@bdwassom) May 9, 2012

Social filter for a city – seeing the city through the eyes of your peers #ARE2012 twitter.com/HowardsReality…

— Howard Ogden (@HowardsReality) May 9, 2012

Brian Mullins explaining 4D on stage at #ARE2012 “3D is looking into a window. 4D is all about space/time. It brings it into your world.”

— daqri.com (@daqri) May 9, 2012

It was Porn that helped VHS win. Anyone making AR Porn? Your platform will go global #are2012

— Luke Robert Mason (@LukeRobertMason) May 9, 2012

Jeffrey Powers giving a fascinating talk about vision and how we discern things like “E’s” from “B’s” and how long it takes. #are2012

— AnthroPunk (@AnthroPunk) May 9, 2012

@mrlaserbeam announces @daqri “lightsource” a tool within AR that helps creators apply lighting to 3D models, beta launch June#ARE2012

— Howard Ogden (@HowardsReality) May 9, 2012

@baraasafaa AR increases dwell time [in print] which in-turn increases probability of a call-to-action #ARE2012

— Howard Ogden (@HowardsReality) May 9, 2012

“Augmented Reality will make money obsolete” dekko’s own @anselm \o/ #are2012

— Anthony Maës (@portemantho) May 9, 2012

Joseph Rampolla, Daniel Suarez, Kevin Manson, myself and David Griesbach

It’s been a full day.  My personal highlight was participating in the panel discussion ““Augmented Reality & Its Challenges in the Civil & Criminal Justice System” with best-selling author Daniel Suarez, cybercrime investigator Captain Joseph Rampolla, Cybercop Portal founder Kevin Manson, Daqri CEO Brian Mullins, and IRS virtual worlds investigator David Griesbach.  The discussion was lively, and the audience’s keen questions made for some engaging interaction.

But ours was just one of a full roster of presentations that captured the momentum, innovation, and ideas that are fueling the AR industry worldwide.  I’ll let others summarize.  The following is a collection of tweets (and some slides) from those in attendance today.

Had a great day 1 at ARE! AR Retail Hype Cycle pres during the State of AR session posted here – slidesha.re/IWOlNt #ARE2012

— Matthew Szymczyk (@KobraKai) May 9, 2012

@AugmenteDev wins my vote for best new tech I have seen at #ARE2012. Supports open standards formats and digital fabrication files.

twitpic.com/9izgxu And here are the results of the auggies, the best demo in Ar. Augment is 2d behind Metaio’s 3d tracking #are2012

— AugmenteDev (@AugmenteDev) May 9, 2012

 

— Damon(@MetaverseOne) May 9, 2012

Here’s a video of @MetaioUS‘s Augmented City 2012: bit.ly/K0TzCOTheir demo now goes into the real world w real-time AR. #ARE2012

— Robert Hernandez (@webjournalist) May 9, 2012

>> @ARdirt — Captain Joe Rampolla, moderating Crime & Augmented Reality at @ARealityEvent #ARE2012 — Amazing Panel of Speakers.

— Chris Grayson (@chrisgrayson) May 8, 2012

Teletouch.es is what they used in Minority Report staff meetings, right? It’s collaborative teleconferencing. bit.ly/GDAolI #ARE2012

— Robert Hernandez (@webjournalist) May 9, 2012

Mindy Brooks of Sesame Street Workshop. Parents felt AR helped pull kids away from “screen time” to interact with real objects. #ARE2012

— PatrickOShaughnessey (@patchedreality) May 8, 2012

Lots of people looking through lenses at people looking through lenses at #augmentedreality at #ARE2012 ! twitter.com/tharple/status…

— Todd Harple (@tharple) May 8, 2012

Some fantastic, and simple, tech from the HICAR group @honda. Car as the perfect medium for a _subtle_ AR experience #ARE2012

— Hyper_Lynx Studios (@Hyper_Lynx) May 8, 2012

“AR industry needs to start promoting today’s realities, not tomorrow’s dreams” #are2012 #zugara

— Marie Hardel (@mariehardel) May 8, 2012

Richard Wetzel at Fraunhofer – nobody has died playing one of their AR games yet. Good to know. #are2012

— PatrickOShaughnessey (@patchedreality) May 8, 2012

#ARE2012 Keynote: Brands for Augmented Reality Dev Ecosystem slidesha.re/IIlPxR

— Mark Silva (@marksilva) May 8, 2012

How Internet Porn Affects Society Today

The infographic to the right tells the tale.  Twelve percent of all websites, 25% of all search engine requests, and 35% of all downloads are sexually explicit.  Over 40 million viewers in the US alone, where the industry rakes in over $2.64 billion per year.

One of the most telling numbers on this chart, however, is “11.”  That’s the average age at which a boy first encounters explicit material online.  The Daily Mail recently featured an interview with a mother who told how her 11-year-old son’s “entire character” changed after he began watching porn on his laptop in his own bedroom.  She wrote:

If Charlie had been on Class A drugs he couldn’t have been more transformed. He became withdrawn, moody and sullen. He wasn’t sleeping at night. He lost his normal gargantuan appetite. He looked hollow-eyed and listless. He had none of the boyish energy and high spirits that we were all used to.

He began writing things like ‘I hate myself’, or ‘Charlie is s***’ on scraps of paper, newspapers, books, even his bedroom furniture and walls. He drew obscene cartoons with speech bubbles filled with the filthiest words in the dictionary.

I once rolled back his sleeve to find ‘I am disgusting’ scrawled on the inside of his arm. I managed to stop myself from crying until I’d left the room. But the moment the door closed behind me I broke down completely.

After intensive intervention, Charlie recovered.  But millions of other 11-year-olds encounter similar pitfalls.  In the article “Why Shouldn’t Johnny Watch Porn if He Likes?,” Psychology Today explained that “sexual-cue exposure matters more during adolescence than at any other time in life.”  That’s because the age of 11 or 12 is “when billions of new neural connections (synapses) create endless possibilities. … By his twenties, he may not exactly be stuck with the sexual proclivities he falls into during adolescence, but they can be like deep ruts in his brain—not easy to ignore or reconfigure.”  In other words, constant, easy access to porn-on-demand conditions young men to stimuli that real-life interactions can never match, setting them up for frustration and failed relationships later in life.

And indeed, the deleterious impact of internet porn on healthy adult relationships has been well-documented.  As early a 2003, the New Yorker ran a piece on mainstream, well-educated, professional men who found themselves increasingly hooked on explicit internet imagery.  This and other articles found the men correspondingly unable to relate to, or maintain a healthy relationship with, the actual women in their lives.  At the same time, women find it increasingly difficult to find a man whose mind isn’t dominated by such content.

A word to the naysayers.  Granted, not everyone who looks at porn online is going to go off the deep end.  And yes, there are those who argue that it can benefit couples who watch it together.  The data, though, speaks for itself.  Much like alcohol and other vices, there are a lot of people out there who just can’t resist the temptation.

That’s the society into which AR eyewear will soon be introduced.

The beauty of AR is that it liberates content from two-dimensional monitors and sets it free into the physical world.  But will that also be AR’s curse?

Painting the World With Porn

“It’s not news, of course,” the New Yorker wrote in 2003, “that men are into porn—or that the Internet has made it possible to delve into the dirty without slipping into the back room at a video store or hunkering down in a Times Square peep booth.”  But “thanks to the advent of cable modems and DSL connections,” it continued, “the mass consumption of cyberporn has slyly moved from the pathetic stereotypes (fugitive perverts, frustrated husbands) into the potent mainstream (young professionals, perhaps your boyfriend)….  Porn is not merely acceptable; it’s hip.”

Maybe that’s why, when Google[*] launched its Project Glass teaser video on YouTube, porn was a recurrent theme in the user comments.  For example:

you can watch porn on the go!

* * *

Awesome, with this remarkable device it´s possible for me to watch porn while i watch porn on my computer. Life´s good

* * *

download porno on a crowded bus!

The sentiment is easy to understand.  Anonymity has always fueled porn consumption.  First, there were magazines in slick black bags.  Then pay cable stations.  Then the internet.  Now, AR eyewear will enable users to take the content with them outside the house, viewing it in public while still remaining anonymous.  One of the New Yorker‘s interview subjects wrote of the thrill of danger he got by viewing porn in his university’s computer lab, while others worked in adjacent cubicles.  AR-equipped thrill-seekers will be able to take this one step further, and watch explicit content while actually standing in front of and talking to those same colleagues.  At school, work, home, on the bus–no setting will ever again reinforce a social stigma against watching it, because only the wearer will see what’s on his AR lenses.

There’s another reason that viewers are likely to take their AR porn into the public square.  The ability to overlay explicit content on the real world–or, more to the point, on real people–will offer synergies that have been heretofore relegated only to private imaginings.

“I’m just going to say this right now,” blogger Jordan Yerman wrote on the same day the Project Glass video was released. “The dev teams for every online porn outfit on the web are watching the Google Project Glass video below and thinking, ‘we can create an app that matches sex footage from our libraries to the body positions of passersby spotted by augmented-reality glasses.’ I promise you, that’s what they’re thinking.”

Illustration by Owen Smith

That certainly appears to be what the guy depicted in this image is thinking.  The New Yorker carried this illustration with its 2003 article, and it’s probably intended to depict what’s going on in the guy’s mind–i.e., his inability to stop thinking about porn and see this woman for who she is. Today, though, it almost seems prescient, and could pass for a depiction of what he actually sees through AR eyewear that’s running a “layer” of data that automatically overlays explicit imagery on passersby.

Of course, having that layer of data open in one’s eyewear ensures that one will have such explicit thoughts about every person one sees–thereby reinforcing the negative thought patterns that lead to compulsive behavior.  That calls to mind the warning of 17th Century poet Thomas Traherne, who said, “As nothing is more easy than to think, so nothing is more difficult than to think well.”  Walking around in the wrong AR layers will make it even more difficult to think well.

It may also land the unwary in legal trouble.  What happens when someone using such a layer in their eyewear encounters (and therefore sees explicit material overlaid onto) a minor?  The device may (hopefully!) be programmed not to recognize those who are obviously children, but verifying the ages of teens would be beyond its ability.  And the truth is that a depressingly large number of men would use such devices for exactly that purpose.  As my friend and fellow AR enthusiast Joseph Rampolla, a law enforcement officer and consultant specializing in cybercrime, says, “wherever society finds pornography, child pornography is not too far behind.”

And what about the effect it will have on women?  They are increasingly forced to deal with men whose unrealistic expectations are fueled by images of models who never say no or have their own needs and standards.  One woman interviewed in the New Yorker article admitted, “I think it will be really rare, and hopefully it will happen, that I can meet a guy who will be happy with only me.”  Others find themselves compromising their own standards to meet men’s unrealistic ones.  And still others find themselves actually participating in the porn industry, sacrificing their own dignity to feed the insatiable demand of the industry’s consumers.

Not that we haven’t seen this coming for awhile.  More than a year ago, I posted an article on this blog facial regonition to what I called “body recognition“–the ability of AR eyewear to record the physical dimensions of passersby and put that footage to God-knows-what use.   I even speculated that ”the fashion world will respond by developing clothes that throw off recording devices, much like the checkered camouflage wraps that the auto companies use to shield prototype cars from the paparazzi.”  That conversation started just this week on CNN.

As the ravenous YouTube comments above demonstrate, we are going to encounter these issues as soon as AR eyewear hits the market.  There are those out there who are already working to make the explicit content available for these devices.  Others will line up on Day One to buy the eyewear specifically for that purpose.  But we all have to live in the society that will deal with the consequences.

Again, none of these issues are unique to AR.  But AR will bring an unparalleled degree of anonymity and unique abilities to overlay and create explicit content that will magnify the temptation, compulsion, and dysfunction with which our society is already riddled.

* – To be clear, the issues I discuss in this article are by no means specific to any particular manufacturer or brand of AR eyewear, nor should my comments be read as a criticism of any particular company.  To the contrary, this is something that the whole industry will need to deal with.

Now AUGMENTED LEGALITY® has a LinkedIn group of its own!  I launched it only a few days ago, so you still have time to get in on the ground floor.  This forum is a logical extension of the conversation that takes place every week here on the AUGMENTED LEGALITY® section of my blog, and will draw in viewpoints from people who might not otherwise discover the content and conversation going on here.  Although I’m the creator and organizer behind the group, it’s my hope that it will blossom into a forum for rich, in-depth conversation about augmented reality’s impact on law and society.

Come join the conversation!

The “Minimum Contacts” Standard for Personal Jurisdiction

That’s a question of “personal jurisdiction,” the legal term of art for a court’s right to exercise its judicial power over a specific person.  Whether or not it’s fair for a court in one state to exercise jurisdiction over a person who lives in another state is a question of due process.  The answer depends on the facts of each specific case, and the strength of the connection between the person and the state that the evidence shows.

As interpreted by the Supreme Court, the Due Process Clause of the US Constitution protects an individual’s liberty interest in not being subject to the binding judgments of a state with which he has established no meaningful contacts, ties, or relations.  Jurisdiction may be exercised over a nonresident defendant only when the defendant has purposefully established such minimum contacts with the forum state that the defendant could reasonably anticipate being sued
there.

The internet has made this test harder to apply, as I’ve written about before.  Courts have been struggling for decades now to define when such minimum contacts are established online.  The ease of interacting with people across the country and the world through social media has only made that analysis more difficult, and courts have come down on both sides of the line in various cases.

The following three cases demonstrate that relatively minor factual details can make a big difference in determining whether or not a person will be subject to jurisdiction in a foreign state.  The fact that all three cases happen to be from the same court–the Texas Court of Appeals–illustrates how difficult it can be to predict the result in any given case.

Getting Hale‘d Into Your Facebook Friend’s Home Court

The 2012 decision Hale v. Richey involved a spat between the widow and adopted daughter of the recently deceased Mr. Richey.  After his passing, the daughter, Ms. Hale of California, unleashed vitriolic attacks on the widow, a Texas resident.  Among her claims were that the widow had kept Mr. Richey in ill health to hasten his death, and that she’d mishandled his trust fund.

In supporting the jurisdiction of the Texas courts over Ms. Hale, Mrs. Richey asserted that (1) Hale’s comments were quoted in a national publication that is “sold at almost every grocery store in Texas”; (2) Hale made defamatory statements about her to at least one relative in Texas via telephone and text message; (3) she used Facebook as a medium to defame Richey to multiple recipients whom she knew to be in Texas; and (4) the claims related to Richey’s involvement in administering a Texas-based trust.  All of these reasons taken together were good enough for the trial court to exercise jurisdiction over Hale.

The appellate court upheld this decision.  It found Hale’s telephone calls and text messages to Texas residents about a Texas-based trust sufficient to support personal jurisdiction over her in Texas.  So it didn’t need to specifically decide whether the Facebook postings, alone or in combination with the other statements, were enough.  The court appeared to distinguish the Facebook posts and “national publication” because they were general publications that happened to be read by Texans among others.  Those are necessarily less “targeted” communications than phone calls and text messages, which by nature are directed to specific individuals.  But the Facebook posts were part of evidence on which the trial court based its decision.  And certainly, the more intentionally targeted they were, the more likely they would have been to support the court’s jurisdiction in this case.

Social Media Cases Don’t Always Fit the Mold of “Old” Internet Case Law

The Hale case notwithstanding, however, sometimes the mere allegation that someone out of state defamed you online won’t be enough to establish jurisdiction over that person in your home state.  RSL Funding, LLC, a Texas-based financial services company, found that out the hard way when it sued Jerry Wilkerson–a California resident–for negative reviews he posted about the company on Yelp and the consumer review section of Yahoo.

Wilkerson’s daughter had won the California State Lottery, then sold her rights to RSL for a lump sum.  When her relationship with RSL went sour, Wilkerson posted lengthy complaints about the company.  Wilkerson never realized that both Yahoo and Yelp would publish his reviews on “local” pages geared towards Texas residents.  But RSL claimed that Wilkerson had “purposely directed his actions at Texas,” since RSL was based there. The trial court agreed with RSL and upheld jurisdiction over Wilkerson.

But the Texas Court of Appeals reversed, making the important point that the traditional “Zippo sliding scale” of interactivity analysis usually used to determine whether a particular website targets a certain jurisdiction can’t be applied to an individual user of social media.  The Wilkerson court noted that, under the Zippo test, “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.”  But even though Yelp and Yahoo “may themselves be considered interactive, a third party’s use of the website may, in effect, be a ‘passive’ usage.”  Here, even if Yahoo and Yelp published Wilkerson’s comments on their “local” Texas pages, “the geography related to the intentions of the website operator or a hypothetical web searcher, without more, is not  relevant to our analysis of whether Wilkerson had the minimum contacts with Texas necessary to support jurisdiction in this case.”

The court even went so far as to find it “common knowledge … that websites such as Yahoo! and Yelp commonly repackage and republish user contributions along with other information like the maps, addresses, photographs, and other identifying characteristics relied upon by RSL.”  Because Wilkerson had no intention to direct his comments specifically toward a Texas audience, or ability to control what Yahoo and Yelp did with his comments, the court found no basis for jurisdiction over him.

Be Careful What You Tweet For — You Might Get It

Companies have discovered social media as a great way to drum up business.   But if they’re not careful, they may end up “getting the business” in ways they weren’t hoping for. In Waterman Steamship Corp. v. Ruiz, the Texas Court of Appeals upheld the exercise of personal jurisdiction in Texas over the shipping company Maersk.  The subject matter of the complaint–a pirate attack–occurred in Africa, and Maersk is a Delaware company based in Virginia.  But some of the plaintiffs suing it were sailors from Texas, so they filed in their home state. The court examined all of Maersk’s various contacts with Texas to determine if requiring it to appear in Texas courts was fair.  There were various points of connection–an employee based there, and some transactions undertaken there.

But one of the most interesting and significant facts that the plaintiffs relied on was the fact that Maersk frequently used Twitter to solicit business in Houston.  Specifically, Maersk’s ships often docked in the Houston port.  And when those ships had unused cargo space, Maersk would tweet that information in the hopes of lining up extra cargo in Houston.  Maersk also used its Twitter feed to announce estimated arrival times into various ports, including Houston, and to advertise the capabilities of its ships.  This became a key portion of the evidence that the court relied upon to uphold jurisdiction over Maersk in Texas.

All of which goes to prove that, when you step into the social media world, you can never be quite sure where it will take you.

Joe will also serve as the moderator of a panel discussion I’m participating in at the Augmented Reality Event (ARE) 2012  Conference this May 8-9 in Santa Clara, California.  I’m thrilled to join what the organizers have called a “staggering panel.”  It features IRS Special Agent David Griesbach,  Kevin Manson of Cybercop Portal, Dr. Edward Roche of Barraclough, and Daniel Suarez, bestselling author of the AR-laden techno-thrillers Daemon and Freedom(tm).  I’m amazed at the depth and diversity of experience that these guys bring to the table, and it’s a serious affirmation of the impact AR is already having on the world of law enforcement.  Attendees can also stop by on the second day of the conference for my solo presentation on “AR Law: What’s Around the Corner?”

You can read my short summary of last year’s event, ARE2011, here.  And for those interested in attending who still  haven’t signed up,  use the discount code ARDIRT375    You’ll save $120 over the list price, and $170 over the walk-in cost.

See you there!

The Confusion Over Keywords and Sponsored Ads

The growth of commercial internet over the past 20 years has been funded predominately by advertising revenue.  We as consumers get to browse free content on millions of web pages and on various search engines in large part because advertisers have paid good money to insert their ad next to whatever we’re reading.  Odds are good that this funding model will continue well into the future.

Moreover, the primary purpose of all commercial advertising is to draw potential customers to the advertised business or product, and away from its competitors.  “Comparative advertising”–ads that compare a product to its competition–have been around forever, and courts have drawn some reasonably clear lines between what is okay to say in such ads, and what is “deceptive” advertising.  In a nutshell, it’s permissible to describe your competitor’s goods and compare one product to another.  But you can’t say things that are likely to confuse customers into believing that you are your competitor. You can’t say something materially false or misleading about your competitor or your own product.  And you can’t do anything to confuse reasonable consumers into mistakenly believing there’s some sort of connection, sponsorship, affiliation, or endorsement between your companies or products.

So you’d think that the court system would have sorted out by now exactly where the lines are in digital advertising between fair and unfair use of competitor’s marks.  But you’d be wrong.  The battle overusing trademarks in “keyword advertising”–i.e., using an algorithm to display Company A’s sponsored ad whenever a user types Company B’s trademark into a search engine–is still being fought, more than a decade after the practice began.  Rosetta Stone is one of several companies to sue Google for allowing competitors to use its marks in keyword ads.  Like several other courts had done in similar cases, the trial court dismissed suit as a matter of law, finding that Rosetta Stone could not prove that Google was liable.

But on April 9, 2012, the U.S. Court of Appeals for the Fourth Circuit overturned that holding, finding it possible that Google’s policy on the use of keywords in sponsored ads could amount to direct infringement, contributory infringement, or trademark dilution.  Other cases have likewise gone either way on liability depending on how the particular trademark at issue appeared in the header or text of a sponsored ad.

 Will the Confusion Continue in Augmented Space?

I and other commentators have long foreseen the use of augmented reality to overlay advertisements in the physical world with digital ads from another–perhaps a competing–company.  We already see this technology in various forms.  For example, in TV broadcasts of baseball games, we might see “digital billboard replacement” technology at work, which superimposes digital ads on top of the ones that are physically present in the stadium.  As I’ve discussed before, the Public Ad Project and the Heavy Projects have sponsored campaigns that replace physical billboards with artistic images when viewed through a mobile device.

But what happens when AR eyewear becomes ubiquitous, and digital ad replacement becomes commonplace?  Will advertisers pay AR service providers for the ability to superimpose their ads on top of what consumers see?  If the past 20 years of e-commerce is any indication, then the answer is “absolutely”–and in a number of creative ways.  So, for example, a business may pay to superimpose its logo on top of signs advertising a competitor’s products, completely blocking the physical ad from view.  Or merely looking at Company A’s ad through your AR eyewear may trigger a virtual ad for Company B to pop up somewhere else in your field of vision.  Similarly, your decision to look at something may prompt suggestions for goods and services relating to the thing you’re looking at.  Self-described “pop culture hacker” Jonathan McIntosh captures all of these ideas in “ADmented Reality,” his video parody of the Project Glass teaser.

Others have also seen augmented ads coming.  John C. Havens discussed them and some of the legal issues they raise in his insightful piece, “Who Owns the Advertising Space in an Augmented Reality?”–a discussion that John has continued on this blog.  Personally, however, I think the question in the title of John’s article should be rephrased.  It’s not a matter of “ownership” per se, because there is no “property” at issue–at least, not in the physically exclusive real property sense that the question implies.  The beauty of virtual space is that an infinite amount of content can “occupy” (or, more accurately, “be displayed in a manner that gives the illusion of occupying”) the same physical space. So, my ownership of a physical building, billboard or poster, as such, can’t stop someone else’s AR app from creating the illusion of virtual content on top of my physical property–because the app isn’t invading the rights that come with my physical ownership.

But that isn’t necessarily the end of the conversation, because the laws governing trademarks and unfair competition aren’t about ownership.  They’re about protecting commercial goodwill and avoiding a confusion among consumers about the relationships between different products and businesses.  Sponsored ads on search engines, for example, don’t do anything to obscure websites or even search results; they just show up next to those things.  Yet the courts have spent years wrestling over whether and how such ads cause a likelihood of customer confusion over who sponsored the ad.  There is every reason to think that we’ll have the same types of arguments about sponsored virtual ads.

It’s also plausible, perhaps even probable, that courts deciding AR advertising cases will use the same reasoning as the search engine keyword cases that today’s courts are wrestling with.  Just like search engine algorithms use particular search terms as keywords that prompt an ad to appear, so too can the physical objects that prompt similar virtual ads in AR devices be thought of as “keywords.”  Whether it’s a billboard, logo, or even a person’s face, any object that prompts an algorithm to display an ad is performing the same function that keywords do today.

All of this is not to say that there is anything wrong or unfair about augmented sponsored ads, or that the courts will necessarily treat them in the same way they do today’s internet ads.  Just as today’s disputes are often decided on very case-specific, factual grounds, so too will tomorrow’s cases be.  It also doesn’t address advertising substitution that is clearly non-commercial, such as the ones sponsored by the Public Ad Project and Heavy Projects.  And perhaps today’s cases will yet result in some form of clear direction, either from the courts or the legislatures, on what is and isn’t a permissible use of keywords in advertising.

Meanwhile, though, the rules of fair and unfair competition in the AR space will remain as speculative as the technology itself currently is.

That’s a big question, and I’m not going to try to answer it here.  Many others have already addressed it, and as a private practitioner, I’d rather keep my opinions on the issue to myself.  But one thing we can all agree on is that answers to such questions should be based on accurate facts.  And one fact that few of those discussing the issue seem to appreciate is the difference between “pinning” and “repinning” on Pinterest.

Used as a verb, “pin” means to add an image to Pinterest.  Pinned images are copied from their host servers and duplicated on Pinterest’s servers.  This is significant to (although not necessarily dispositive of) the copyright infringement debate, because one of the things that U.S. copyright law gives copyright owners the “exclusive right” to control is the “reproduction” of their works.

But a Pinterest user may also add an image to her board that has already been pinned to another user’s board.  This is called “re-pinning,” and is somewhat analogous to “retweeting” a message on Twitter.  Although this causes the image to appear on multiple Pinterest boards, it does not create an additional copy of the image on Pinterest’s servers.  You can confirm this yourself by re-pinning images, and verifying that the image has the same URL regardless of the board on which it appears.

In other words, repinning does not infringe the copyright owner’s reproduction right.  Of course, that doesn’t necessarily get repinners out of the woods.  Copyright owners have four other exclusive rights in their images as well–the rights to control distribution, derivation, public display, and public performance–and there are those who have argued that even repinning may infringe one or more of these rights.  But I am not taking a position on those issues here.

It seems certain that Pinterest and other online innovators will continue to spark heated debate over online copyright issues well into the foreseeable future.  The technology evolves so quickly that it can be difficult to understand how it works or how it implicates copyright principles.  But it’s important that the courts, companies, consumers, and copyright holders alike make our decisions based on accurate information.