The e-Volution of Retail

a couple of articles on the opportunities tying of digital data collection with aspects of retailing – some new, and some not so new:

  • Just Browsing? A Web Store May Follow You Out the Door (pdf)

    IF you try on a sweater in a department store dressing room, but choose not to buy it, a persistent sales clerk won’t pursue you into the street yelling, “Hey, are you sure?” Nor will you receive a call at your home the next day to check again if you want to complete the purchase.

    But in the online world, visitors to Web stores who touch the goods but leave without buying may be subjected instantaneously to “remarketing,” in the form of nagging e-mail messages or phone calls.

    A new Web service, called Abandonment Tracker Pro, is in beta testing and scheduled for formal release next month. […]

  • What Does Your Credit-Card Company Know About You? (pdf)

    “I think I can do something for you, though,” [credit card bill collector Rudy] Santana continued, glancing at his screen. It was filled with information about the man, including the fact that he had recently sold his home at a loss. Some of this information had been sent by the man’s bank to Santana’s employer, Sunrise Credit Services, which collects delinquent debts for companies like Citigroup, Bank of America and HSBC. Santana’s company had added notes, too, including helpful tips — he is easier to reach in the mornings, for example — and new ways to contact him.

    “Look,” Santana said. “I know you’re angry at your wife. One step to ending that anger is putting this debt behind you. It will really help you find peace. You owe about $29,000. How much do you think you can pay?”

    “Well, how much are you gonna help me?” the man shot back. “These banks got all this taxpayer money from the government, and they’re the ones who ruined the market for my house! I helped bail them out. I think the banks should be paying me, instead of trying to suck all the life out of us they can!”

    […] Luckily for the industry, small groups of executives at most of the large firms have spent the last decade studying cardholders from almost every angle, and collection agencies have developed more sophisticated dunning techniques. They have sought to draw psychological and behavioral lessons from the enormous amounts of data the credit-card companies collect every day. They’ve run thousands of tests and crunched the numbers on millions of accounts. One result of all that labor is the conversation between Santana — a former bouncer whose higher education consists solely of corporate-sponsored classes like “the Psychology of Collections” — and the man from Massachusetts. When Santana contacted the man last month, he was armed with detailed information about his life and trained in which psychological approaches were most likely to succeed.

Playing With Fire

Fordham Law Students Teach Scalia About Privacy and the Web (pdf)

This spring, the students of an elective course on Internet privacy at Fordham Law School experienced a number of fascinating “teaching moments” during an assignment meant to demonstrate how much personal information is floating around online.

The assignment from the class’s professor, Joel R. Reidenberg, was, admittedly, a bit provocative: create a dossier about Supreme Court Justice Antonin Scalia from what can be found on the Internet.

Why Justice Scalia? Well, the class had been discussing his recent dismissive comments about Internet privacy concerns at a conference. His summation, as reported by The Associated Press: “Every single datum about my life is private? That’s silly.”

[…] Justice Scalia declined an interview request through a spokeswoman but he did give a response about the episode to Above the Law.

“I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

“It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.”

A teaching moment, but not necessarily a learned one.

Solove’s blog: Concurring Opinions; entries on this article’s topic — Justice Scalia’s Conception of Privacy, Justice Scalia’s Dossier: Interesting Issues about Privacy and Ethics and Justice Scalia’s Dossier: Joel Reidenberg Responds

Content, Pricing and Markets

A couple of articles on the business of e-content:

  • Steal This Book (for $9.99) (pdf)

    Just how much is a good read worth?

    David Baldacci, the best-selling thriller author, learned what some of his fans think when “First Family,” his latest novel, went on sale last month. Amazon initially charged a little over $15 for a version for its Kindle reading device, and readers revolted.

    Several posted reviews objecting that the electronic edition of the book wasn’t selling for $9.99, the price Amazon has promoted as its target for the majority of e-books in the Kindle store. Hundreds more have joined an informal boycott of digital books priced at more than $9.99.

    “I love Baldacci’s writing,” wrote one reader, who decided not to buy. “Sorry Mr. B — price comes down or you lose a lot or readers. I’ll skip your books and move on!”

    It was a chilling sentiment for authors and publishers, who have grown used to an average cover price of $26 for a new hardcover. Now, in the evolving Kindle world, $9.99 is becoming the familiar price. But is that justified just because paper has been removed from the equation?

  • Scribd Invites Writers to Upload Work and Name Their Price (pdf)

    Turning itself into a kind of electronic vanity publisher, Scribd, an Internet start-up here, will introduce on Monday a way for anyone to upload a document to the Web and charge for it.

    The Scribd Web site is the most popular of several document-sharing sites that take a YouTube-like approach to text, letting people upload sample chapters of books, research reports, homework, recipes and the like. Users can read documents on the site, embed them in other sites and share links over social networks and e-mail.

    In the new Scribd store, authors or publishers will be able to set their own price for their work and keep 80 percent of the revenue. They can also decide whether to encode their documents with security software that will prevent their texts from being downloaded or freely copied.

Owning Words

There’s already been plenty of discussion about ownership of numbers; now we move into the tortuous region of ownership of combinations of UTF-8 character strings: Companies Object to Google Policy on Trademarks (pdf)

On Monday, FPX filed a class-action suit against Google in federal court in Texas, saying that Google had infringed on its trademark and challenging Google’s policies on behalf of all trademark owners in the state. Legal experts said it was the first class-action suit against Google over the issue.

But Google’s acceptance of such competitive uses of trademarks has irked many other companies, including the likes of American Airlines and Geico, which have filed suits against Google and settled them. Many brand owners say the practice abuses their brands, confuses customers and increases their cost of doing business.

None of this, apparently, is giving Google much reason to reconsider. This month, it expanded to more than 190 new countries its policy of allowing anyone to buy someone else’s trademark as a trigger for an ad. And late Thursday it announced that it would allow limited use of trademarks in the text of some search ads, even if the trademark owner objects.

“They are pouring fuel on the fire,” said Eric Goldman, an associate professor at the Santa Clara University School of Law and director of its High Tech Law Institute. “Trademark owners are not going to like this change in policy. They already felt that Google was not treating them as well as they liked. Here Google is making it harder to control the use of their trademarks online.”

Or maybe forcing the question of whether trademarks have anything to do with search terms? Or are you planning to pay Pat Riley a nickel every time you say “threepeat?”

NYTimes Editorial on GPS Surveillance

GPS and Privacy Rights (pdf)

The police generally need a search warrant to enter a person’s home or to listen to phone calls. But courts have been divided on whether the police must obtain a warrant before placing a GPS device on a car. New York State’s highest court ruled this week (local copy) that they do, an important victory for privacy rights.

The opinion includes this discussion of the perils of surveillance technologies and privacy:

Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. […]

That such a surrogate technological deployment is not — particularly when placed at the unsupervised discretion of agents of the state “engaged in the often competitive enterprise of ferreting out crime” (Johnson v United States, 333 US 10, 14 [1948]) — compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.

Sound like any other environment?? The opinion makes the following sweeping, and certainly controversial, assertion:

Indeed, contemporary technology projects our private activities into public space as never before. Cell technology has moved presumptively private phone conversation from the enclosure of Katz‘s phone booth to the open sidewalk and the car, and the advent of portable computing devices has re-situated transactions of all kinds to relatively public spaces. It is fair to say, and we think consistent with prevalent social views, that this change in venue has not been accompanied by any dramatic diminution in the socially reasonable expectation that our communications and transactions will remain to a large extent private.

This certainly isn’t going to be the last of this, but the language is something to read. The opinion is not unanimous, and the dissent is equally eloquent in its argument:

The theory that some investigative tools are simply too good to be used without a warrant finds no support in any authority interpreting the Federal or New York Constitution. Knotts, despite the majority’s attempt to distinguish it, seems to me to establish conclusively that the Fourth Amendment did not prohibit the police “from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them” (460 US at 282).

“Protecting” Fashion Designers

Slate gives a platform to apologists for the latest push to give copyright protection to (clothing) designs: Protecting fashion designers from copycats

Currently, both the knockoff and the inspired-by approaches to fashion are entirely legal. U.S. copyright law considers items of apparel “useful articles,” which are not legally protected the way books, music, and movies are. But all this could change if Diane von Furstenberg and the Council of Fashion Designers of America get their way. During the last session of Congress, a House committee heard testimony on legislation that would treat fashion design like other protected areas of intellectual property, protecting original designs against copies that are “substantially similar”—the ordinary standard for other kinds of creative works protected by copyright. Last time around, the fashion design bill didnt pass. But its supporters are now bringing before Congress a new and improved version, and it stands a better chance.

[…] [T]his doesn’t mean that fashion designs are completely unsuited to copyright protection. The solution, practically speaking, is to enable the inspired-bys to keep at it while shooing away the knockoffs, which are the ones that reduce the incentives of fashion designers at all levels to come up with new designs. Some people will buy a new Jason Wu design. But if essentially the same dress is soon available at a fraction of the price, some will go for the knockoff, especially when cash gets tight, or simply decide not to buy the design at all, because the knockoff has made the design seem less distinctive.

Copyright for useful articles — one more way to stifle through “protection” – ‘cuz, of course, as we all know, hardly *anyone* is developing new designs because of the threat of these copycats. Why, we have to create innovative programs in order to get people to enter the field!

There may be better arguments in their Stanford Law Review paper: The Law, Culture, and Economics of Fashion


Software ecosystem or walled garden? Unofficial Software Incurs Apple’s Wrath (pdf)

[F]or some owners of the Apple touch-screen device, the 35,000-plus applications lining the digital shelves of Apple’s App Store are not enough. If you want to use your iPhone as a video camera, send a photo message or hook it up to your laptop to connect to the Internet, there’s no app for that.

Or at least, no official app.

Through the efforts of developers and hobbyists, the Web is teeming with unauthorized applications for the iPhone and the iPod Touch (which does everything that the iPhone does except make phone calls and incur a monthly bill from AT&T), and there are even some independent online application stores.

However, in order to use these programs, iPhone owners have to “jailbreak” their device — downloading a bit of software that bypasses Apple’s restrictions and allows the installation of unsanctioned third-party programs.

The growing popularity of jailbreaking has set up a legal battle between Apple, which says it has the right to regulate what can go on an iPhone, and the users and developers who want to customize their phones as they see fit.

Jailbreaking is different from unlocking an iPhone, in which users modify the software so the phone can be used on unauthorized wireless carriers. For some iPhone hobbyists, like Mark Janke, jailbreaking is akin to customizing a fancy car — it simply allows owners to personalize the look of their devices, turning their phones into a brag-worthy accessory and status symbol.

[…] But according to Apple, jailbreaking is illegal and a breach of the Digital Millennium Copyright Act. “These modifications not only violate the warranty, they also cause the iPhone to become unstable and not work reliably,” said Natalie Kerris, a spokeswoman for Apple.

In a legal filing [local copy] with the United States Copyright Office last year, Apple says jailbroken iPhones rely on modified versions of Apple’s operating software that infringe on its copyrights.

France In The Vanguard

Of something: France Approves Crackdown on Internet Piracy (pdf)

The French National Assembly on Tuesday approved a plan by President Nicolas Sarkozy to punish digital pirates with the possible suspension of their Internet connections, a little more than a month after the same body had rejected the proposal in a surprise vote.

The assembly, the lower house of Parliament, voted 296 to 233 in favor of the bill, the furthest-reaching legislative initiative yet in the global battle by the music and movie industries against unauthorized copying of their works. The bill would create a new agency that would send warning letters to copyright violators; those who ignored two warnings would lose their Internet service.

Passage was expected because Mr. Sarkozy’s government closed ranks after losing the previous vote in April, when insufficient members of his party, U.M.P., appeared for the vote. The Culture Ministry hailed the outcome Tuesday as an important step toward “preserving cultural diversity and the industries threatened by piracy.”

Approval in the upper house, the Senate, is expected Wednesday. The sponsor of the bill in the National Assembly, Franck Riester, has said that the first penalties could occur next year.

Opponents say, however, that the plan is saddled with provisions that would make the system difficult, if not impossible, to enforce.

Before the measure goes into effect, it also faces several potential hurdles. […]

Shocked, Shocked To Learn There’s Gambling Going On Here

How can they be surprised: With E-Readers Comes Wider Piracy of Books (pdf)

Neither Ms. Le Guin nor her publisher had authorized the electronic editions. To Ms. Le Guin, it was a rude introduction to the quietly proliferating problem of digital piracy in the literary world. “I thought, who do these people think they are?” Ms. Le Guin said. “Why do they think they can violate my copyright and get away with it?”

This would all sound familiar to filmmakers and musicians who fought similar battles — with varying degrees of success — over the last decade. But to authors and their publishers in the age of Kindle, it’s new and frightening territory.

The EU Parliament Steps Up

French Anti-Piracy Proposal Undermines E.U. Telecommunications Overhaul (pdf)

The European Parliament on Wednesday rejected a long-planned revision of the Continent’s telecommunications laws because of a controversial provision to punish Internet pirates.

In Strasbourg, the Parliament’s lower house, by a vote of 404 to 56, passed an amendment to the telecommunications package making it illegal for any E.U. country to sever Internet service unless a citizen is found guilty in court, effectively blocking the broad revision.

The amendment was intended as a rebuff to a proposal before the French National Assembly that would allow a government agency to sever Internet service based on industry complaints.