• The Electronic Frontier Foundation released a “terms of service” tracker earlier this week. The tracker chronicles older and new terms of service agreements, side by side, and highlights changed provisions. The TOSBack.org site was created in part from an outgrowth of Facebook’s change in its service agreement in February that, under a broad interpretation, provided that Facebook with a license to its members’ uploaded content even after termination of membership. Following criticism in the media and by its members, Facebook backed down and provided for a termination of the license. But the episode revealed the difficulty end users have in evaluating how revised terms of service provisions can have real impact. The “terms of service” tracker currently tracks 44 sites, including Facebook, Google, WordPress, Data.gov, YouTube, GoDaddy, and eBay.
• For years, content providers have provided information to viewers for free by depending on advertising sales to support its websites. With the decline of the advertising market, advertisers have cut back on spending, forcing content providers to rethink their business model. Many websites are returning to previously used revenue models, including charging for premium services and selling real or virtual goods on its sites. GigaOM, a network of tech-oriented blogs, is one of the latest examples of this trend. GigaOM is charging for a premium subscription research service, which includes more content and analysis, while continuing to provide its basic content for free. We expect to see more business changes of this type in the future
• The increase in digital media possibilities has led traditional storefront retailers to make efforts to capitalize on digital space. Last September, Best Buy bought Napster for $121 million. Now, Best Buy is supplying capital for a new digital media investment fund managed by Fuse Capital. By doing so, Best Buy will be able to hedge its profit opportunities in this fast-changing economy with both its core retail business and its investments in digital media.
• Internet advertisers have been using trackers to follow around users. But now federal regulators are tracking the online advertisers around to ensure that they are being fair to consumers. According to Jessica Rich, the Assistant Director of the Federal Trade Commission’s Privacy & Identity Protection (USPIRG) arm, “[t]he FTC is concerned that data collection is disproportionate to the benefits that are achieved.” In December, the FTC released a draft of behavioral guidelines, calling for more transparency and user control, and allowing opt-ins for sensitive data. Few people actually opt out, however, even when given the opportunity. Yahoo told Congress last year that only 75,000 users a month even visited its privacy page to opt out of targeted ads. Microsoft’s Mike Hintze says that it is unrealistic and that if users are not going to bother to opt out, they are unlikely to opt in. He suggests that more consumer education is necessary, but most consumers just do not care.
• A recent study confirms DRM technology sometimes it makes pirates of even those who are attempting to make legal uses of content. DRM does not discriminate between preventing illegal versus legal uses. As a result, even users who want to use the content for legal purposes must violate anticircumvention laws and in essence become pirates to accomplish their goals. Advocates of the DRM technology assert that despite the inability to accommodate legal uses, there is not an anti-piracy solution that would be able to accommodate all possible legal exceptions. Unfortunately, this has left even legal content users forced to find other means, including piracy, to get around the DRM protection.

Advances over the last decade in the media, entertainment and technology industries have been unparalleled. The new media landscape is dynamically shifting in real time and all businesses must anticipate and react to innovations in technology in order to seize new opportunities and develop unique business models.

Hughes Hubbard and Reed’s New Media, Entertainment and Technology group recognizes the pace at which these advancements are affecting the day-to-day operations of our clients. We specialize in helping clients exploit such developments to stay ahead of the curve by understanding the way technology influences business. It is not merely the convergence of the media, entertainment and technology industries, but the impact of such convergence on the global consumer, which drives the marketplace forward. We combine the resources and experience of a traditional law firm with an understanding and passion for today’s cutting-edge technologies to assist our clients in navigating the new realities and challenges arising from this shifting landscape.

Digital Media and Internet

• Digital audio-visual content licensing, distribution and syndication initiatives on all new media platforms including wireless, broadband, satellite radio and IPTV
• Online social networking services, virtual reality communities, blogging, massively multiplayer online games (MMOGs)
• Mergers & acquisitions, strategic alliances, online sponsorships/promotional collaborations and joint ventures
• Embeddable media player development, deployment and syndication
• Electronic publishing and distribution
• Integrated marketing, contextual advertising and brand management
• Viral marketing and Internet based “word of mouth” campaigns
• Ad serving, syndication, publication, targeting and tracking
• User-generated content ingestion, distribution, syndication and liability-related issues
• Digital content screening, moderation and filtering
• Online gaming, sweepstakes, contests and promotion compliance
• Digital Millennium Copyright Act – safe harbors and anti-circumvention issues
• Adoption and content of website Terms of Use agreements

Entertainment

• Development and production matters for motion picture and television productions, including writer, producer and director arrangements, guild issues, special effects agreements, location agreements, and other production related matters and documentation
• Domestic and international motion picture distribution in all media, including output deals and ancillary exploitation
• Cable and television broadcast, syndication and other distribution
• Motion picture and television finance, including single- and multi-project finance and all forms of debt, equity and mezzanine financing
• Strategic alliances and motion picture and television co-production and co-financing arrangements
• Major record label sound recording, publishing and associated rights clearances
• Independent music recording, publishing and licensing
• Video game development, publishing ,distribution and licensing for all platforms, including console, handheld ,wireless and online games
• Professional sports league television licensing and retransmission
• Professional athlete employment contracts and talent agreements, including spokesperson, appearance and sponsorship agreements
• Literary and other underlying rights acquisition and licensing
• Rights clearance for motion pictures, television productions and video games
• Product, character and technology merchandising and licensing
• Television format licensing
• Overall and housekeeping deals with talent elements and production companies
• Motion picture and television library acquisitions and dispositions
• Network, cable system and satellite affiliation and carriage agreements
• Product placement and commercial tie-ins
• Motion picture and television marketing agreements and arrangements
• Registration and licensing of patents, trademarks and copyrights
• Litigation concerning the interpretation of recording, film and distribution contracts
• Theme park, gaming and hotel operation

Technology and Information Security

• Privacy, data and information security compliance
• Information technology, business process, call center and manufacturing outsourcing transactions
• Website development, hosting and colocation arrangements
• Electronic commerce, publishing and distribution
• Technology and data export compliance
• Record retention and disaster recovery/contingency planning compliance
• Wireless device and network applications
• Software/hardware and intellectual property procurement, development, licensing and distribution
• Micropayment, contactless payment, smart cards and other alternative electronic payment technology implementations
• Technology transfers and acquisitions
• Technology service and maintenance agreements
• Domain name disputes

New Media, Entertainment and Technology Attorneys

• Dan Schnapp
• Rita Haeusler
• Wayne Josel
• Peter M. Langenberg
• Lindsay Orosz
• Matthew Syrkin
• Other Attorneys