AR law ： Privacy
CHAPTER
Privacy
INFORMATION IN THIS CHAPTER:
• Sources of privacy law
• Privacy concerns raised by AR
• How AR can enhance privacy
INTRODUCTION
Privacy is a hot topic these days, especially in connection with any sort of communications technology. In part, this is due to the lightning-fast pace at which information technology is developing. The less people understand how the technology works and how it can be used to gather information about them, the more apprehensive they are likely to feel about it. Privacy is as much about emotional reactions as it is about legal doctrine, and it is still a very amorphous concept from either perspective. There is much disagreement about just what the word means, what sort of rights it should include, and where those rights come from.
That said, however, there are various laws and court decisions that define and protect different types of privacy rights. Many of these are likely to be implicated by the development and implementation of augmented world technologies.
SOURCES OF PRIVACY LAW
BACKDROP: THE FIRST AMENDMENT
One basic reason that privacy is such a difficult concept to define and protect in the United States is that it runs counter to our fundamental commitment to free and open speech. Our country was founded on the expression of dissent, personal liberty, and the ability of each individual to participate in the political system. The American legal system still reflects those values in its hesitance to give government the power to prevent a citizen from saying whatever he or she chooses to say - or, putting it more precisely in light of modern communications technology, conveying whatever information he or she may choose to convey.
In the American legal system, virtually all laws concerning the conveyance of information are limited in their application, to some degree, by the First Amendment to the United States Constitution. This bedrock provision prohibits governments from
Augmented Reality Law, Privacy, and Ethics
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Copyright © 2015 Elsevier Inc. All rights reserved. “abridging the freedom of speech ... or of the press.”1 After more than two centuries of interpretation by the courts, this simple statement has been fleshed out into a fundamental principle of free expression that undergirds our entire framework of participatory democracy. As long as the subject of one’s speech has any arguable connection to issues that affect the well-being or interests of more than just those involved in the conversation - what the law calls “matters of public concern” - then the right to express that view will almost always be protected by the First Amendment. By contrast, “matters of private concern” are those that the law recognizes as not being the legitimate business of anyone other than those directly affected by them. These - and, for the most part, only these - issues the law will protect as “private.”
The following excerpt from a 2011 Supreme Court opinion gives a concise summary this bedrock legal doctrine:
Speech on matters of public concern is at the heart of the First Amendment’s protection. The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. That is because speech concerning public affairs is more than self-expression; it is the essence of self-government. Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.
Not all speech is of equal First Amendment importance, however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest. There is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the threat of liability does not pose the risk of a reaction of self-censorship on matters of public import.2 3
One corollary of this principle is that information in the public domain is free for all to use. In this context, data is more or less presumed to be public; it is a significant burden to prove that something should be free from public scrutiny. Even if information was once legally private, that privacy is gone for good after it is lost. For example, in the 2001 decision Bartnicki v. Vopperf the United States Supreme Court refused to punish a newspaper for publishing video footage, even though a third party had obtained it in the first instance by illegal eavesdropping.4 5 And in the famous Pentagon Papers cases of 1971,5 the Supreme Court refused to prevent newspapers from publishing leaked classified military documents about the Vietnam War, even though the government warned that disclosure would lead to the death of Americans abroad. That is how sacrosanct the First Amendment principle against what the courts call “prior restraint” on publication has become.
This also explains why what some call the “right to be forgotten” is unlikely to ever take root in the United States as it is beginning to do in Europe. Various groups have advocated different types of legal proposals to give people a legal mechanism to have embarrassing information about them removed from the public record -particularly internet search engines - and to get others to stop repeating it, even if it was once newsworthy. Some American legal commentators have said that this “sweeping new privacy right ... represents the biggest threat to free speech on the Internet in the coming decade.”6 In 2013, California became the first American jurisdiction to grant a legal right to have personal information deleted from the internet, although the statute applies only to minors and is riddled with uncertainty as to how it will work.7 But even if the statute survives legal challenge, First Amendment jurisprudence will not permit American regulators to run very far with this idea. The Supreme Court has struck down on free speech grounds more than one law intended to prevent child pornography, for example, and even refused to restrain newspapers from publishing the names of rape victims, so long as the information was legally acquired.8
That is why the First Amendment remains the elephant in the room during any discussion of American privacy law, even though the provision itself restricts only the government and not private citizens. It explains, for example, why privacy laws cannot prevent individuals from collecting and repeating information that is freely available in public places - such as overheard sights and sounds -including by recording them. The freedom of speech also explains why the penalties for even a bona fide invasion of privacy sometimes seem so anemic; the offender may be punished, but the ill-gotten information typically remains in the public sphere.
This is also why it has been so difficult to find a legal path toward a third category of information between “public” and “private.” For example, philosophy professor Evan Selinger of the Rochester Institute of Technology in New York has proposed formalizing the idea of “obscurity” as a legal category for information that, while not entirely private, must still remain difficult to access.9 Despite the attractiveness of this proposal, it is difficult to envision how obscurity could be lawfully enforced in a legal framework that forbids government restrictions on speech.
All of this said, however, the law will restrict some speech on some subjects under some circumstances. Exceptions to the freedom of speech are just as important to the healthy functioning of our democratic system as is the freedom itself. Certain types of information are so unrelated to the public concern, and some methods of expressing it are so disruptive to the public order, that some regulation by the courts is permitted. Moreover, we need spaces in our lives for private discourse, where we can actively explore our opinions with others without fear of public recrimination. Brazilian President Dilma Rousseff reminded the United States government of this point in the midst of news reports that the NSA had tapped her communications. “Without the right of privacy,” she said, “there is no real freedom of speech or freedom of opinion, and so there is no actual democracy.”10
Under most circumstances, however, government protection of individual privacy over free speech remains the exception rather than the rule. As a result, instead of having a single “right of privacy” in the United States, we have one central freedom of speech, together with a mismatched patchwork of state and federal laws occupying the spaces between and surrounding the boundaries of that freedom.
THE COMMON LAW RIGHT TO BE LEFT ALONE
Federalism is another reason for the lack of a uniform “law” of privacy in the United States. Our legal system is one historically based on limiting the powers of the national government, with all other powers of government being reserved for the states. The power to regulate and protect information about individual citizens was not one of the traditional powers of the Federal government, and (with narrow exceptions discussed below) the affirmative limitations on government power in the Bill of Rights do not have much to say on preventing encroachment on personal privacy. Traditionally, therefore, most of the laws protecting personal privacy have come from state legislatures - which retain the general power to pass virtually any law they choose within the very loose boundaries established by the Constitution - and from state courts, which have the inherent authority to go beyond the written statutes and declare principles of judge-made “common law.”
The modern era of American privacy protection began in 1960 with the publication of a law review article by Dean William L. Prosser.11 He summarized what by then was a burgeoning but chaotic body of common law decisions from courts across the country and distilled them into four distinct torts that have henceforth become the foundation of privacy law in virtually every state. Three of the four torts amount to variations on what is commonly called “the right to be left alone.” They are as follows:
• Intrusion into Seclusion. This common law tort occurs when someone intentionally intrudes upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, if the intrusion would be highly offensive to a reasonable person. The classic example is a secret video camera installed in a changing room or bedroom. The tort occurs upon recording; no publication of the recorded footage is necessary.
• Publication of Private Facts. This separate cause of action arises when someone publicly disseminates little-known, private facts that are not newsworthy, not part of public records, public proceedings, not of public interest, and would be offensive to a reasonable person if made public. Typical examples here include private health matters and intimate sexual information.
• False Light. This cause of action is similar to the tort of defamation (also known as libel or slander), which punishes the unprivileged publication of demonstrably false assertions of fact that injure a person’s reputation. The tort of false light is also designed to protect a person’s reputation, but it deals with the publication of information that, while potentially true in some respects,
is communicated in a manner that conveys something false. It requires a publication made with actual malice that places the plaintiff in a false light and would be highly offensive to a reasonable person.12
One common thread running through each of these causes of action is a prerequisite that the aggrieved party have a “reasonable expectation of privacy” under the circumstances alleged. The word reasonable is a legal term of art loaded with meaning. For one thing, it is an objective measurement. Although courts will often require a plaintiff to have subjectively expected privacy as well, the law does not deem something private just because someone wants it to be. A reasonable expectation of privacy is also one that is constrained by the boundaries of what other laws - such as the First Amendment - make public. A court will determine what the average, reasonable person would have expected under the circumstances, and judge the case according to that standard.
Although Prosser and others like him did much to bring order to the common law of privacy, it remains an inherently decentralized, flexible concept that evolves each time a court applies time-tested principles to the facts of a new case.
EAVESDROPPING AND WIRETAPPING STATUTES
Eavesdropping laws protect the right not to be surreptitiously recorded. More specifically, eavesdropping involves making an audio or video recording of other people under circumstances in which those persons had a reasonable expectation of privacy. Eavesdropping is prohibited by statute in virtually every state, and much of the same subject matter is covered by federal wiretapping statutes as well. It can be punished as a tort, a crime, or both, depending on the jurisdiction. The most recent and highly publicized example of eavesdropping through emerging digital media was the case of now-former Rutgers student Dharun Ravi, who was sentenced to 30 days in jail for using his webcam to secretly record and broadcast his roommate’s intimate encounter - an invasion that ultimately led the roommate to take his own life.13
The boundaries of prohibited activity vary somewhat between states; for example, some punish only audio recording and not video. Some are “one party consent” jurisdictions, in which the recording is lawful as long as one participant in the conversation agreed to the recording. By contrast, “two party consent” states consider the recording to be eavesdropping unless all participants consent. And in both types of jurisdictions, defining “consent” is rarely a simple task.
ELECTRONIC PRIVACY LAWS
There is no one statute, court decision, or other authority that establishes the boundaries between public and private realms online. Instead, we have a patchwork quilt of various statutes intended to address distinct areas of concern. For example, the Electronic Communications Privacy Act14 and the Stored Communications Act15 created barriers to both the government and private citizens obtaining the emails of others. The latter statute has since been interpreted to apply to other types of electronic messages that were intended by their senders to be private, such as texts and Facebook direct messages.
SUBJECT-SPECIFIC PRIVACY LAWS
The foregoing laws protect privacy in broad strokes by establishing general boundaries for behavior or regulating who has access to particular communications media and under what circumstances. There are also laws aimed at safeguarding specific categories of information. For example, the Health Insurance Portability and Accountability Act of 1996 (HIPAA)16 significantly increased protection for individuals’ personal health information. The Children’s Online Privacy Protection Act of 1998 (COPPA)17 regulates the collection and use of information from children younger than 13. The Gramm-Leach-Bliley Act of 199918 governs the disclosure of financial data. Various other laws on the federal and state level govern the collection and use of social security numbers and other discrete types of information.
LIMITATIONS ON GOVERNMENT INTRUSION INTO PRIVACY
For the most part, the authorities described above limit how private individuals can collect and use information about other individuals. Our legal system also contains fundamental restrictions on the ability of governmental authorities to collect private information. The most basic of these is the Fourth Amendment to the United States Constitution, which restricts the government from invading “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”19 From this comes the prerequisite that law enforcement officials obtain a judicial warrant based “upon probable cause” before intruding into any place in which a person has a reasonable expectation of privacy. In June 2014, the Supreme Court re-affirmed the importance of this provision in the digital age by holding that the Fourth Amendment requires a warrant before police may examine data on a detained person’s mobile device.20
Of course, subsequent developments such as the USA Patriot Act21 and NSA surveillance scandals of recent years may call into question the efficacy of these limitations on government power. And to be sure, the opportunities for data collection presented by augmented reality and its supporting technologies will sorely tempt law enforcement agencies to find new ways to monitor and collect individuals’ electronic data.
With this legal framework in mind, then, let’s consider how AR-related technologies are likely to test the boundaries of American privacy laws.
PRIVACY CONCERNS RAISED BY AR
FACIAL RECOGNITION AND OTHER BIOMETRIC DATA
The importance of facial recognition in an augmented world
There is nothing inherent to augmented reality that requires the collection of biometric data. It is ingrained in human nature, however, to seek interaction and companionship with other people, which explains how social media has so quickly become the single most popular function of the internet, and why we invent so many devices for calling, texting, tweeting, poking, tagging, friending, following, and liking each other. That is also why we have already seen several real and imagined apps that bring social networking into the augmented medium. It is safe to say, therefore, that we will use AR technologies for new forms of social media and interpersonal interaction.
In order for any AR device to interact directly with a person, the device first needs to recognize who and where the person is. At present, there is no realistic alternative for accomplishing that task in a social setting other than by facial recognition. Retina and fingerprint scans do and will most certainly have their place, but they require the subject to get a little too up close and personal with the scanner to be comfortable in most settings. By contrast, faces can be recognized passively and at a distance.
Even social technology that we use today demonstrates the inevitability of widespread facial recognition. The capability to implement facial recognition on a broad scale has existed for years, but has been held back. As of this writing, for example, Google still prohibits any app for its Glass eyewear that recognizes faces.22 These companies are leery of sparking a privacy backlash - which is exactly what has happened each time Facebook has expanded its use of the technology. For example, in 2012 Congressional hearings, Sen. Al Franken grilled Facebook officials about their intentions for the use of these “faceprints.”23 In August 2013, Facebook changed its Statement of Rights and Responsibilities to give it the authority to add individuals’ profile photos to its facial recognition database.24 This move was met with probes from various European regulators and promises of additional scrutiny from Sen. Franken.
Yet Facebook continues to roll out facial recognition applications, bit by bit, and has refused Sen. Franken’s invitation to promise that they won’t use it even more widely in the future. It isn’t alone. “Businesses foresee a day when signs and billboards with face-recognition technology can instantly scan your face and track what other ads you’ve seen recently, adjust their message to your tastes and buying history and even track your birthday or recent home purchase.”25 This prospect became eerily real for me aboard a cruise ship in the Fall of 2012. It used to be that ship photographers had to post their photos in a massive onboard gallery that patrons spent hours browsing through, trying to pick out the pictures in which they appeared. No more. This time, my digital folder was updated in near-real time with new photos every day, using software that had tagged my face or even the faces of others in my party. Chances are that I signed something at some point allowing the ship to do this, although I’m not sure US privacy laws would hold much sway in international waters anyway. But it brought the technology’s power home in a visceral way.
It is more than commercial pressures driving the technology, however; criminal acts like the Boston Marathon bombing stoke the demand for law enforcement to have better facial recognition capability. “The FBI and other U.S. law enforcement agencies already are exploring facial-recognition tools to track suspects, quickly single out dangerous people in a crowd or match a grainy security-camera image against a vast database to look for matches.”26 Even more likely to gain public support are apps such as Baby Back Home, an AR app in China that uses facial recognition to allow average citizens to locate and identify missing and kidnapped children.27
Or it may be far more simple and personally gratifying applications that finally win the public over. Forbes contributor Tim Worstall recently echoed28 an argument that I have made for years - that the real “killer app” for AR eyewear will be one that recognizes faces and calls to the user’s field of view everything the user knows about that person - their name, the names of their spouse and children, and so on -all in order to avoid embarrassment at cocktail parties.
Whatever vector the technology takes, the more such sympathetic and socially redeeming applications of facial recognition gain acceptance, the more inured and less apprehensive the public will be toward the technology. Businesses will then encounter less resistance to using it for more commercial purposes. At that point, society will grapple in earnest with the boundaries that privacy law can and should impose on facial recognition.
Regulating facial recognition
Of course, as mentioned above, regulatory agencies are not waiting until facial recognition becomes ubiquitous before they begin to regulate the technology. On October 22, 2012, the Federal Trade Commission released a report entitled “Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies.”29 The FTC has had its eye on this technology for a long time-at least since the workshop it held on the subject in December 201130-aware that it is being implemented by a wide variety of industries.
Among the privacy issues that concerns the FTC most is “the prospect of identifying anonymous individuals in public.”31 One fundamental consequence of First Amendment jurisprudence, however, is that there are no “anonymous individuals in public [places];” being publicly visible pretty well eliminates any expectation of legally protectable privacy one might hold. Indeed, even before facial recognition technology was dreamed up, the law never recognized a general right to remain an anonymous face in a crowd. This is an example of the proposed right to “obscurity” discussed above.
If anything, it has been the opposite; the law has recognized faces as an important means of identification. For decades, police have used line-ups to identify suspects’ faces, and taken mug shots as a means of recording detainees’ identities. Although the recent rise of websites that catalogue these mug shots for shaming and extortion purposes has caused some agencies to clamp down on their distribution, most courts still protect the public’s right to access these files as public records. And in 2003, a Florida judge refused to allow a Muslim woman to obtain a driver’s license unless she agreed to remove her veil and be photographed, ruling the state “has a compelling interest in protecting the public from criminal activities and security threats,” and that photo identification “is essential to promote that interest.”32 Therefore, we are unlikely to see any significant regulation on the gathering and use of facial recognition information in public places, unless public outcry results in significant new privacy legislation.
Such regulation may have a greater chance of surviving judicial scrutiny, however, to the extent that it targets purely commercial activity. As the Supreme Court has explained, commercial messages receive less vigorous protection than other speech, at least if they have the effect of misleading the public or fostering illegal activity:
The First Amendment’s concern for commercial speech is based on the informational function of advertising. Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it or commercial speech related to illegal activity.33
This is why courts are able to hear such causes of action as trademark infringement, unfair competition and false advertising - all of which involve activities that are, at their core, speech. Because unfair commercial activity is exactly the sort of activity that the FTC exists to regulate, it is a logical starting place for conversations about the use of facial recognition in commerce.
The FTC sees this as the perfect time to publish its expectations “to ensure that as this industry grows, it does so in a way that respects the privacy interests of consumers while preserving the beneficial uses the technology has to offer.”34 The FTC Facing Facts report does not have the force of law, but you can bet that it will influence the decision-making processes of FTC administrative law judges and others evaluating novel allegations of “deceptive advertising practices” involving facial recognition.
Although the report characterizes its recommendations as “best practices,” it does not do much to actually reduce its discussion to practice. Rather, the report loosely follows the theme of the following three “principles”:
1. Privacy by Design: Companies should build in privacy at every stage of product development.
2. Simplified Consumer Choice: For practices that are not consistent with the context of a transaction or a consumer’s relationship with a business, companies should provide consumers with choices at a relevant time and context.
3. Transparency: Companies should make information collection and use practices transparent.
These “principles” strike me as so vague as to almost be counterproductive. They are intuitive to anyone making a modicum of effort to incorporate privacy concerns into a facial recognition application. As a result, this recitation is not likely to encourage anything more than a modicum of effort to protect privacy. The technology itself is so young that efforts to guide it remain purely speculative at this point.
I am not alone in being uncomfortable with this report. The FTC committee behind the report adopted it on a 4-1 vote. The dissenting commissioner, J. Thomas Rosch, wrote that “the Report goes too far, too soon.” He made three points. First, he thinks that the report fails to identify any “substantial injury” threatened by facial recognition technology. Second, he finds it premature because there is no evidence that any abuses of the technology have yet occurred. Third, he believes the recommendation to provide consumers with “choices” anytime that the technology doesn’t fit the “context” is impossible, given the difficulty in assessing consumer expectations. As a result, he says, this amounts to an overly broad “opt-in” requirement.
In the months since this report was released, politicians have not gotten any more specific as to how they would regulate facial recognition technology. Even Senator Franken’s November 2013 pronouncement complaining about Facebook says only that he “will be exploring legislation to protect the privacy of biometric information, particularly facial recognition technology” and supports “convening] industry stakeholders and privacy advocates to establish consensus-driven best practices for the use of this technology.”35 Likewise, in December 2013, President Obama announced that his administration would be “looking into” these concerns, but offered no more specifics than Sen. Franken did.
In January 2014, the National Information and Telecommunications Administration convened the industry stakeholder meetings called for by Sen. Franken. Its goal is to articulate consensus guidelines for the application of the President’s Bill of Rights to facial recognition technology. I had the opportunity to personally participate in many of these sessions on behalf of the AR industry. As of this writing, those guidelines have not been finalized, and their ultimate utility remains unclear (Fig. 3.1).
The FTC report also expressed worry about facial recognition “data [being] collected [that] may be susceptible to security breaches and hacking.”36 These same concerns have already been expressed about electronic databases of all kinds, and we have seen the consequences of banks, credit card companies, and retailers having their information hacked. As a result, there are already several laws on the books (mostly at the state level) regulating the privacy of commercial databases and spelling out proper procedures to follow when that privacy has been compromised. The FTC also treats the failure of companies to adequately secure customers’ personally identifying information as an unfair commercial practice, and occasionally brings related enforcement actions. For example, in May 2014, it settled charges it brought against Snapchat for failing to provide the advertised level of data security to users of its mobile video messaging app.37
DATA ENHANCEMENT
Mid-air augmented displays of virtual information also create new privacy concerns. Concept art of near-future AR applications is rife with examples of augmented data being displayed as hovering over or nearby individual people. In some cases this is social networking or other self-disclosed information about the person, or even digital advertising associated with the individual’s apparel. In other cases, though, it is data about the person that is stored in a variety of disparate databases with varying degrees of public accessibility, and collected by the AR device into one unified display. These include credit scores, transactional information drawn from IOT-connected devices, political affiliations, and even whether the person appears on sexual offender registries. In these concepts, such displays are made possible by recognizing the person’s facial features and using that identification to query other databases for information about the person.
The FTC has previously raised concerns about practices like these, which it calls “data enhancement.”38 It began by noting the vast amount of facial data already collected by social media companies, and that could easily be gathered by other commercial face recognition applications. The FTC then went on to cite a study by researchers at Carnegie Mellon University, which combined readily available facial recognition software with data mining algorithms and statistical identification techniques to determine an individual’s name, location, interests, and even the first five digits of their Social Security number.39 Powered by AR, this capability could ultimately make available to everyone virtually every fact known by anyone about someone, just by looking at that person. The ability to socially reinvent one’s self at any point in life, already under threat by social media, would be essentially lost.
Software engineer Greg Vincent has even suggested the development of a wearable protocol similar to the robots.txt files that prevent certain websites from being indexed by search engines.40 (Fig. 3.2) Using this protocol, says Vincent, “I can
FIGURE 3.2
Greg Vincent’s rough sketch of a robots.txt file for your face.
request that our conversation not be shared with anyone other than you and I ... [or] that I not be recorded for later use, that you not photograph me, that you not use facial recognition technology on me, or that you not record my voice.”41 As long as society retains its anxiety about facial recognition and the law remains unable to assuage that concern, we can expect the fashion and consumer electronics industries to fill the gap.
SURVEILLANCE AND SOUSVEILLANCE
All eyes on everything
Privacy advocates have long worried about “Big Brother” governmental agencies using advanced technology to spy on citizens. Such surveillance activity is inevitable, as the 2013 NSA spying scandal has reminded us. It is already a given that surveillance cameras are everywhere in modern-day public life, from stores to gas stations to street corners to traffic lights. Those are so small as to be barely visible anymore, and we rarely even think about them. Indeed, in November 2013, even the City of Las Vegas - that self-proclaimed haven of anonymity - announced plans to install “Intellistreets” street lights that, among other things, have the ability to record sound and shoot video.42 Knowledge is power, and it is the nature of governments to collect all the knowledge available to them.
But we are also entering an era where personal, wearable video recording devices are about to become ubiquitous. Wearable technology empowers individuals to record the words and deeds of themselves and others far more pervasively than any government could reach. Digital eyewear pioneer Steve Mann has coined the word “sousveillance” to describe such “recording of activity by a participant in the activity,” or “inverse surveillance.”43
We have already come to accept that everyone we meet is likely to be carrying a video-equipped cell phone that they can pull out at any moment. But the newest recording devices are ones that we wear on our persons. Among the earliest of these is the Looxcie, an over-the-ear camera that doubles as a Bluetooth headset. More recently, GoPro has launched a range of similar wearable cameras. Both companies’ devices come with companion mobile apps that can transfer recordings to Facebook, or broadcast what a user sees to his friends, live.
The earliest forms of digital eyewear, such as Google Glass and Recon’s ski goggles, represent a transitional species of device between simple digital cameras and true AR devices. They offer a heads-up display of information, but are not currently designed to truly augment our perception of the physical world by superimposing on our vision interactive digital images with the illusion of physicality. Photo and video capability are, however, an important part of their functionality, and they make it remarkably easy to record on the fly.
All wearable devices are designed to be comfortable, which can cause the wearer to forget they’re there. California Lieutenant Governor Gavin Newsom wore the Glass prototype during a television interview. Newsom later told Wired, “You can easily forget you have them on, and sense the capacity of use in the future,” adding the headset felt incredibly light, comfortable and inconspicuous on his head.44
Wearable devices are intended to let technology get out of your way so you can record life while still participating in it. This has fantastic upsides, and is something I have already enjoyed; I’ve made great, hands-free videos of my kids with my Looxcie and my Glass while continuing to play with them, rather than pull out my camera and separate myself from the experience. But there are also easily foreseeable downsides to forgetting you’re wearing a video camera on your head. I wore my Looxcie during a 2012 augmented reality conference, to underscore the talks I gave there about (among other things) this very subject. Even in that crowd-who are the movers and shakers in the industry that will produce these devices-I got a number of odd looks, turned heads, and derailed conversations.
And accidents do happen. While wearing my Looxcie, even I - someone who was keenly interested in the device’s impact on privacy - forgot I was wearing it at times, and I ended up accidentally recording (and later deleting) at least one conversation that was supposed to be private, along with a couple inherently private situations. What if I had forgotten I was wearing the camera when I walked into a public bathroom, and recorded myself or someone else in a compromising position? Or worn it (accidentally or intentionally) into any other setting in which people expected privacy, such as a family home, bedroom, or church confessional? Or read a confidential document or email? And worse, what if, instead of being set to merely record, my device was live-streaming to Facebook or some other audience?
At present, this is much more of a concern with a device like the Looxcie, which has a battery life of approximately five hours and is designed for continuous recording, than with the earliest digital eyewear. As of this writing, for example, Glass has a battery life of only 30 minutes when recording video,45 and it lights up conspicuously when running - not to mention that activating the recorder requires a hand gesture or voice command. In other words, it is not at all a device designed for surreptitious recording.
But these are the types of concerns we will encounter in droves once true AR eyewear goes mainstream. Most of the buzz surrounding these devices centers on the digital images that they overlay onto the user’s field of view. Less discussed so far, however, is the fact that, in order to truly augment the user’s vision, the eyeglasses need to also see (and recognize) what the user sees. Thus, every prototype of AR eyewear we have seen to date includes an integrated, forward-facing video camera. They have to. The earliest of these devices record only when necessary to run a particular app in order to conserve power. But as the augmented experience becomes more robust, these cameras will need to remain on constantly in order to make the discovery of digital content more organic, spontaneous, and useful.
There are also audio-only devices that pose similar concerns. In October 2013, a wristband-like audio recording device call Kapture accomplished its fundraising goal on Kickstarter. Here’s how the creators described its function:
Kapture functions as a 60-second buffered loop. The loop continuously overwrites itself until you tap the device to save a clip. The saved file is downloaded to your smartphone where the duration can be shortened and you can name, tag, filter, and even share it. Simple!46
Basically an audio-only version of Looxcie, Kapture’s founders foresee it being used to preserve unrepeatable moments with kids or friends, or to record an epiphany while the user is driving.
But once the devices are in consumers’ hands, there will be no way to limit the purposes for which they are used or the subject matter they are used to record. Even the users themselves are not likely to realize everything they’re recording, even when they’re subjectively aware that a recording is being made. The human ear has a marvelous ability to pick one voice out of a crowd and focus on it, ignoring all other conversations. Recording devices, on the other hand, pick up everything within earshot, even the confidential conversations that someone wearing the device may not even realize they’re hearing.
Sousveillance and invasion of privacy
Wearable sousveillance technologies will prove enormously useful in many circumstances. Their use is not inherently incompatible with personal privacy. Nevertheless, they will make possible eavesdropping and common-law invasions of privacy on an unprecedented scale, to the point where these technologies will eventually force a redefinition of what the common law recognizes as private.
From a privacy standpoint, the biggest concern will be the devices that are always on and always recording, such as the Looxcie and the Kapture. Because these are designed to keep recording even without conscious intervention by the user, it becomes virtually inevitable that the user will wear them into situations where he or she would not otherwise think to pull out a recording device, and where he or she would not record if they had been thinking about it. Here I am referring to private conversations and intimate surroundings. The fact that these devices record over their buffers every so often is irrelevant from a liability perspective; it is the act of recording that constitutes eavesdropping and/or intrusion into seclusion. Taking the next step and broadcasting that recording to third parties - which, again, at least some of these devices can be set to do with or without conscious intervention - risks additional liability for causes of action such as publication of private facts or, depending on the context, false light.
Although other mobile AR devices could be used to make surreptitious recordings, the prospect does not seem materially greater than with the smartphones and other mobile recording devices already on the market. As long as the onus is on the user to manually activate the recording feature, they are functionally equivalent to any other form of recording device. Indeed, head-worn recording devices actually have less capacity for surreptitious recording, since they require the user to constantly look at the subject of the video recording and to be within earshot to hear the audio being recorded.
Privacy concerns can also be at least partially mitigated to the extent that the device in question makes it reasonably clear to third parties that it is recording. Eavesdropping and privacy rules generally cover surreptitious recordings, not those made with the knowledge of the person being recorded. The Looxcie, for example, turns on a small red light when it is recording. It is unclear as of this writing whether the Kapture wristband or the various digital eyewear in production give any such warning. Of course, whether such warnings are sufficient to give fair warning of the recording, or whether users have made efforts to obscure them, will depend on the facts of each individual dispute, and may require litigation to sort out. The trouble is, going through all of the procedural steps necessary to sort out the facts of a case can be a long, complicated, and expensive process. I was once involved in an eavesdropping lawsuit that lasted for eight years, and one of the central questions throughout the case was whether the video cameras used to make the recording at issue, and the warning lights on them, were visible or not.
Over time, as wearable recording technology becomes more commonplace, the average person’s expectations - and, therefore, the law’s definition of a reasonable expectation - of privacy will change. Thirty years ago, shoppers in retail stores would not have expected to be filmed as they browsed the aisles. Now one cannot walk into the typical big-box store without being captured from every angle on hundreds of obscure security cameras. Twenty years ago, spies and oddballs were the only people we would expect to carry recording devices on their person, and to publish such footage in real time across the planet was unfathomable. Today, it’s odd to meet someone who doesn’t carry a device with all of those capabilities. We have accepted those developments, and our expectations of privacy have adjusted accordingly. Those expectations will continue to evolve along with our technology.
Surveilling the sousveillers
People in view of those wearing digital eyewear are not the only ones who can be recorded by the devices. Wearable devices are already being used to keep tabs on their users as well.
This potential will become especially apparent once eyewear becomes truly capable of augmenting our vision with data that overlays specific physical objects and places. To accomplish that feat, the devices will need to know not only where the object or place is, but also where the user’s eyes are pointed, in order to maintain the illusion that the digital data is in a fixed physical location. Eye-tracking data is already of great interest to retailers and advertisers, who crave to know what draws customers’ attention. If our digital devices can store and transmit that data, you can bet that advertisers will be clamoring to get their hands on it.
Similarly, employers will be keen to know how much attention their employees are paying to their assigned tasks at any given time. Being able to monitor employees’ eye movements would offer a tempting means of measuring productivity and efficiency. Still other examples of potential uses for this data abound, as do other means of gathering it. As facial recognition technology improves, for example, retail displays will know not only who we are, but also what we’re looking at. Thus will we fully enter into the commercial experience depicted by the groundbreaking futurist film Minority Report, in which augmented displays personalize shopping experiences based primarily on retinal data.
Following the movements of our eyes will not be the only way that a fully connected, internet of things economy will be able to track us, however.
PASSIVE DATA COLLECTION THROUGH THE INTERNET OF THINGS
The phrase “going off the grid” was coined to describe a lifestyle that intentionally avoids interacting with technology that leaves a trace of one’s activities. As depicted by characters in popular fiction, this has heretofore been accomplished mainly by paying for things with cash instead of credit, using a false name, and talking on pay-as-you-go mobile phones. But how can one stay off the grid when every single physical device in existence has the capacity to gather and transmit digital data?
The IOT’s sense of touch: beacons and taggants
As of this writing, Bluetooth Low Energy (BLE) technology is just starting to roll out to the public, most notably in the “iBeacon” feature of Apple’s iOS7. It has been seen as a rival to Near Field Communication (NFC) technology (which iOS8 also embraces), or as a convenient way to pipe coupons into your phone. But history will look back at BLE as a major step forward in manifesting the Internet of Things (IOT), and in eroding any remaining illusions of privacy we have in our physical whereabouts.
BLE is a means of transferring data. “Beacons” - devices that use BLE - are tiny, wireless sensors that transmit data within a 10-meter range. At present, they support only low data rates and can only send (and not receive) small data packets, but these are perfect for interacting with iPhones and wearable computing devices such as smart watches and fitness trackers.47 In light of the current proliferation in such devices, therefore, it’s safe to say that in the near future we may carry a half-dozen devices or more that are equipped with BLE or similar technology.
One of the most obvious applications of BLE is micro-location geofencing. GPS technology is great for determining your approximate location to within a few feet, but it relies on satellites that can’t see into buildings very well. A mobile device running BLE technology, however, can interact with nearby beacons to determine its precise location, even indoors.
Set up around a store, they can detect shoppers entering and exiting, and send them coupons (customized to your unique shopper profile) or even internal directions - Minority Report without the retinal scans. You will soon be able to even pay for goods without ever pulling out your phone, just like the newest vehicles will open their doors even when your key stays in your pocket. PayPal is already developing just such an app using BLE.
The real potential of BLE lies not in coupons, but in the IOT-the burgeoning trend towards making physical objects internet-connected and digitally interactive. Just like humans cannot meaningfully interact with the world around them without their five senses, so too will IOT-enabled objects lack interactivity without some means of sensing and communicating with their surroundings. BLE beacons are a major step toward providing that ability.
In all likelihood, some improved version of BLE technology, or its next-generation replacement with even broader capabilities, will be available either when this book is released, or shortly thereafter. Moreover, as discussed in Chapter 2, the need for digital sensors to precisely locate physical objects may lead to the deployment of beacons or taggants on the micro- or even nano-scale. Each of these devices - including present-day beacons and RFID tags as well as taggants and other future technologies - will be able, in theory, to have its own unique IP address on the internet. The migration begun in 2012 of the Internet Protocol address system from IPv4 to IPv6 increased the total number of IP addresses from a mere 4.3 billion - a number we’ve already reached - to 340 undecillion (i.e., 340 trillion trillion trillion). Now, literally every Barbie doll, toilet paper roll, and random chatski can have its own unique IP address on the internet. Each becomes a data point capable of reporting its exact physical location on a real-time, global map. Once more people are using this infrastructure, its consequences will become more apparent.
Aggregating our interactions with the IOT
Digitizing our physical interactions will create a digital record of our movements and whereabouts that had never previously existed. For advertisers and retailers, this will be a goldmine of information just like social media was before it-a brand-new trove of personal data that can be used to send out even more precisely targeted commercial solicitations. Without doubt, those providing IOT services will want not only to recognize who we are, but also to remember where we’ve been.
And just like we do online now, many users will consent to their information being collected in this manner. The convenience factor will be huge. Just as internet browsers use cookies and browsing histories to remember who I am without forcing me to re-type my password every time I re-visit a website, so too will I want my clothing store to remember my size, my restaurant to remember my favorite meals, my grocery store to remember the location of my favorite items, and the news feeds that I’ll see projected everywhere to remember my favorite topics.
But others will be remembering that data as well. Thanks to Edward Snowden and others like him, the world is already aware of how much information private companies and the government collect about our emails and other online interactions. Law enforcement already does all it can to track a suspect’s physical movements, whether through cellular towers, IP addresses, or GPS trackers. In the near future, the government will likely have access to high-resolution, constantly updated digital maps of the entire planet’s surface; the Pentagon’s National Geospatial-Intelligence Agency is already at work on an “orthorectified image skin” that would provide the base layer for a next-generation map.48 Just like GPS and the internet itself, it will only be a matter of time before the private sector gets its hand on this geolocation data (Fig. 3.3).
FIGURE 3.3 able to find or remove all of the devices. The same technology could be used to track anyone. Even if you knew you were tagged, could you remove them all? A human skin pore is 200-250 nanometers wide, which easily allows nano-scale products to be absorbed into the skin. What if you inhaled or ingested them? Like Lady Macbeth, you’d wash and wash, but never get the damned nano-spot out.
Privacy regulations and IOT
Government regulators are only beginning to draw lines of privacy around data accumulated by the IOT. Certainly, where networked devices are used to surreptisously record the words and actions of third parties, existing causes of action for eavesdropping and common law invasion of privacy will be enforced, just as they are now with the “Peeping Tom” cameras that seem to regularly find their way into changing rooms, bedrooms, and other unambiguously private places.
In September 2013, the FTC took its first enforcement action related to IOT-collected information. TRENDnet, a company that markets video cameras designed to allow consumers to monitor their homes remotely, settled FTC charges that its lax security practices exposed the private lives of hundreds of consumers to public viewing online.49 According to the FTC, TRENDnet marketed its numerous products as being “secure” when, in fact, the cameras had faulty software that left them open to online interception. The complaint further alleged that, in January 2012, a hacker exploited this flaw and made it public, and, eventually, hackers posted links to the live feeds of nearly 700 of the cameras. The feeds displayed babies asleep in their cribs, young children playing, and adults going about their daily lives. Once TRENDnet learned of this flaw, it uploaded a software patch to its website and sought to alert its customers of the need to visit the website to update their cameras.
“The Internet of Things holds great promise for innovative consumer products and services. But consumer privacy and security must remain a priority as companies develop more devices that connect to the Internet,” said FTC Chairwoman Edith Ramirez.50 Under the terms of its settlement with the Commission, TREND-net was prohibited from misrepresenting the security of its devices or network, and was required to establish a comprehensive information security program designed to address security risks that could result in unauthorized access to or use of the company’s devices. The company also was required to obtain third-party assessments of its security programs every two years for the next 20 years.
This first foray into protecting privacy in the IOT - which came only a month before the FTC hosted its first public seminar about the IOT - signaled that the FTC is likely to continue following its existing practices in this new technological field. That is, it will take a proactive role of facilitating public conversations on the topic, while at the same time reacting to the worst offenders in the field in order to set examples for the rest of the industry. The FTC has done the same thing in recent years with social media endorsements and other fields that catch its interest.
There is every indication that regulators will continue to have plenty of opportunities to punish lax security practices in the IOT space. A 2014 study by researchers at Hewlett-Packard “identified an alarmingly high number of vulnerabilities” in the most popular IOT devices.51 These insecurities ranged “from issues that could raise privacy concerns to serious problems like lack of transport encryption, vulnerabilities in the administration Web interface, insecure firmware update mechanisms and weak or poorly protected access credentials.”52 Sixty percent of the devices were vulnerable to common hacking attacks, while 70% used unencrypted networks and 80% used extremely weak passwords. 53 This reflects “the current nature of online services [to] provide[] few mechanisms for individuals to have oversight and control of their information, particularly across tech-vendors.”54 At some point, certain unfair practices may become so prevalent that Congress will feel the need to step in with new legislation.
Geolocation privacy
Geolocation data is something the courts have been trying to wrap their arms around for a few years now, with no clear boundary lines yet emerging. In January 2012, the United States Supreme Court decided United States v. Jones,55 in which it unanimously ruled that the attachment of a GPS tracking device to an individual’s vehicle by police, and subsequent use of that device to monitor the vehicle’s movements on public streets, constituted a “search or seizure” within the meaning of the Fourth Amendment. Contrary to many news reports at the time of the decision, however, the Jones Court reached no conclusion on whether that search was unreasonable, or whether it required a warrant. The case produced three opinions from overlapping groups of Justices, some of whom found any degree of GPS tracking without a warrant legally dubious, while others would limit only long-term tracking, and still others so no problem with collecting such data as long as the police committed no physical “trespass” onto the person’s property. This mish-mash of views illustrates the difficulty in applying eighteenth century legal principles to twenty-first century technology.
At least with regard to data collected by mobile phones, then, courts have generally concluded that “[u]nder existing law, ... a user does not have a reasonable expectation of privacy as to geolocation data.”56 This is because, unlike the police-imposed “tracking devices” at issue in Jones, consumers carry mobile phones with themselves voluntarily, and are presumed to agree to their carriers’ privacy policies that allow collection and sharing of this data. Presumably, mobile AR devices will come with the same broad policy provisions, and the same legal principles will apply to the data they collect.
Regulatory bodies are also paying attention to geolocation data privacy. On May 25, 2012, the Federal Communications Commission (FCC) released a report with the opaque title “Location-Based Services: An Overview of Opportunities and Other Considerations.”57 The report outlines the growing use of location-based services (LBS) in navigation, tracking, social networking, gaming, retail, real estate, advertising, news, weather, device management, and public safety applications, and government and industry efforts to address the privacy issues surrounding such services. It stemmed from a June 2011 workshop that the FCC hosted on the subject.
Like the FTC’s efforts, this FCC report offered more general principles than concrete rules. In this case, the report highlighted “notice and transparency,” “meaningful consumer choice,” “third party access to personal information,” and “data security and minimization” as its primary concerns. The FCC ended its report with a warning that it will “continue to monitor industry compliance with applicable statutory requirements and evolving industry best practices,” and that “additional steps may be necessary if privacy issues are not met as effectively and comprehensively as possible or within reasonable time frames.”58
What will be more interesting, though, is determining expectations of privacy in our digital interactions with IOT-connected physical devices. It is one thing to follow the legal fiction that everyone visiting a website or opening a particular software program reads and agrees to its terms of use, including the privacy policy that allows personal data to be collected. It will be another thing to apply that presumption to random devices we encounter in the physical world. Expecting every BLE-enabled beacon we will encounter on the sidewalk or within stores to carry a privacy policy that consumers can be expected to read and consent to seems impractical. The companies that provide service to our AR devices will likely seek to obtain from users a blanket consent to data collection on the front end, but even that consent cannot meaningfully apply to every party who will eventually have access to our interactions with the IOT.
USING AR TO ENHANCE PRIVACY
A new approach will need to be found. Here, in addition to new questions, AR also offers potential solutions.
Wearable technology in general has the potential to change individual users’ attitudes toward data privacy. On today’s internet, the providers of content and services do not go out of their way to offer individuals an opportunity to understand, much less control, how their data is collected or used. In most circumstances, any such effort is only the result of cajoling by regulators, and comes in the form of a dense privacy policy that offers little or no more information beyond what is legally required. After years of operating in this environment, users have become accustomed to the idea that controlling data privacy is beyond their reach.
With wearable and “pervasive computing, [however,] much of the technology becomes tangible and familiar. This makes issues of privacy more readily apparent to users. ... If you can physically witness aspects of data collection, it short-circuits what has traditionally been a long feedback loop between privacy risk and cumulative effect. The hope is that the increased awareness inspires action.”59 Moreover, as wearable devices make computing a more personalized experience, “it could also be used to provide individuals with the opportunity to take control of their personal data.”60
FIGURE 3.4 “Watch Your Privacy” by Sander Veenhoff.
Software coder Sander Veenhof has actually already published the first attempt at a digital eyewear application that attempts to enhance an individual’s privacy. Called “Watch Your Privacy,”61 the app “visualises nearby privacy intrusions based on open data about surveillance cameras worldwide.”62 It also claims to map the real-time geolocation of other digital eyewear wearers who are using the app. In both cases, the goal is to inform the user as to the location of video cameras (both stationary and wearable) so that the user can make an informed choice as to whether or not they wish to be filmed. The screen capture included here as Fig. 3.4 demonstrates an augmentation showing red and yellow circles, indicating areas where a camera is or could be pointed, and green areas that are not being surveilled. Presumably, the same approach could be applied to beacons and other sensors capable of reading NFC, Bluetooth, Wi-fi, or other signals. Of course, this early implementation has a number of practical limitations; its database of camera locations will necessarily be incomplete, and the augmentations are likely only approximate. As a proof of concept, however, Veenhof’s creation is a marvelous sneak peek at what AR could do to enhance personal privacy.
Advertising, Marketing, and eCommerce
INFORMATION IN THIS CHAPTER:
• AR’s use in advertising and marketing
• Unfair competition
• Disclaimers and disclosures
• Mobile commerce
INTRODUCTION
As augmented reality grows in importance as a medium, it will be used more heavily for advertising. That is an assertion so obvious as to hardly require support, but copious amounts of evidence can be found both in the prevalence of ad-supported content online and on the air, as well as the accelerating trend of AR ads already underway.
Less certain, however, is how the various laws and regulatory bodies governing commercial scruples will react to these innovations. Federal regulators have already been invited to limit the use of AR in advertising, but to date have refused to do so. As with web-based advertising before it, though, it can only be a matter of time until we see the development of new norms for fair advertising in the new medium of AR. Moreover, recent precedents in the regulation of internet marketing offer clues as to how AR is likely to be policed.
AR’s USE IN ADVERTISING AND MARKETING
HOW AR IS CURRENTLY USED
Printed targets
For several years now, printed advertisements have contained “targets” that trigger augmented content on a computer screen when held up to a computer webcam or mobile device. The first of these usually took the form of Quick Response (QR) barcodes. The fact that these blocky boxes stood out from the surrounding text proved to be both an advantage and disadvantage; although they made it (relatively) clear to audiences that an interactive experience was available (once the public caught on to what QR codes were, that is), they were not the most aesthetically pleasing content to include in valuable print space.
Augmented Reality Law, Privacy, and Ethics
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Copyright © 2015 Elsevier Inc. All rights reserved.
Therefore, even though you will still find QR codes on printed advertisements today, it is much more common for augmented content to be triggered by images already present in the ads themselves. One early example of this technique was the newspaper ads that Universal ran in the January 28, 2010 issue of USA Today for its new “Wizarding World of Harry Potter” theme park.63 The ad contained a two-dimensional sketch of the park. When held up to a webcam or mobile device, the park came alive, allowing readers to explore it in three dimensions.
Interactive print
This term describes an interactive, augmented experience with the pages of printed books, magazines, and promotional flyers. The concept is materially identical to the earliest print advertisements designed for webcams, except these are optimized for mobile devices and typically offer a wider range of real-time interaction and utility for the reader. Examples of this type of experience include:
• Science textbooks with molecules that appear to hover over the page, allowing the reader to physically interact with them;
• Products that hover in space above their print ads, allowing shoppers to inspect the device in three dimensions, make it move, and even hear audio of what the product sounds like when used;
• Two-dimensional floor plans that spring to life in three dimensions, allowing readers to look through virtual windows and to test how various light sources would illuminate a room;
• Instruction manuals that display assembly directions step by step, with threedimensional animations;
• Handouts at automotive shows that show consumers three-dimensional models of cars that can be explored from every angle;
• Videos that appear to play on top of a printed page;
• Digital buttons that “pop out” from a physical page, allowing users to select new digital content by touching their finger to that portion of the page; and
• Pages that become the anchor for a broader digital display, such as by placing a page on a floor and stepping back for broader perspective, allowing the user’s device to show what a life-sized piece of furniture, machinery, or floor tiling would look like in that space.
By taking advantage of the ever-increasing processing power of mobile devices and of the environment in which the typical user will encounter the printed material, interactive print represents a qualitative improvement in user experience over first-generation augmented advertisements.
FIGURE 4.1
A child making and displaying augmented content with the “Disney Princess Ultimate Dream Castle.”
Augmented products
The concept of interactive “print” can be, and has been, applied to three-dimensional objects as well as the printed page. Starbucks was one of the first retail brands to include augmented content on product packaging. During the holiday-themed promotions, customers using a branded app could view select coffee cups to see one of several different characters emerge and perform various actions.64 Absolut did something similar with their “Absolut Truths” app, which encouraged consumers to locate targets on specially marked bottles to launch videos that “[e]xplore the unnecessary lengths we go to, to make our vodka good.”65 In 2014, McDonald’s used Qualcomm’s Vuforia AR software to augment its french fry containers. The associated app turned the containers into an interactive soccer game to promote the World Cup tournament.
Increasingly, AR apps are being launched in connection with toys. These differ from the aforementioned promotional campaigns in that the app is designed for repeated use by the consumer after purchase, rather than solely as an inducement to make the purchase. For example, Disney offers a “Magic Mirror” app that offers children the chance to discover a wide range of augmented experiences when used in connection with the “Disney Princess Ultimate Dream Castle.”66 (Fig. 4.1) Although nominally sold for $1.99, the castle toy comes with a code for a free download. At the 2014 Augmented World Expo, Qualcomm demonstrated a toy military vehicle that children could scan with a mobile device in order to “import” the toy into a digital universe. This is a variation on the Skylanders and Disney Infinity products that also feature physical toys that affect digital game play.
Offerings such as this turn AR into “added value” that makes the physical product more attractive to would-be purchasers - often at very little marginal cost to the manufacturer.
In-store kiosks
Lego pioneered the concept of importing the at-home webcam experience into retail stores (Fig. 4.2). Shoppers in select Lego Stores will find kiosks to which they can hold up certain boxes of Lego toys. When they do, the webcam displays a three-dimensional, animated depiction of the toy that the box of bricks is designed to create -and projects that depiction as if it is actually present on top of the box the customer is holding. Rotating the box allows customers to view the toy from multiple angles. In this case, the imagery already present on one entire face of the box serves as the target that triggers the augmented display. And although the application is limited to one, immobile device, it works instantly without the need for customers to pull out a mobile device or download a specific app. Therefore, although such kiosks perform only one function, they do it very well.
Public installations
Lego is not the only entity to make creative use of AR in a fixed physical space. Iowa’s Simpson College drew attention by hanging a banner inside a local mall, then encouraging teens to view the banner through a custom app that augmented
FIGURE 4.2
FIGURE 4.3
National Geographic AR installation in a shopping mall.
it with digital graphics, sound and video.67 Several brands, including National Geographic68 and the BBC69, have set up billboard-sized video walls inside shopping malls that display the pedestrians in front of the wall, along with digital animals with which the shoppers can interact - not unlike a giant version of the Kinectimals game for the Microsoft Xbox Kinect70 (which itself was an impressive step forward in mass-market AR). (Fig. 4.3) Victoria’s Secret71 and Disney72 have done the same with augmented characters, while Nokia73 and Ford Motor Company74 have set up similar, somewhat smaller interactive mall displays.
Dutch billboard using AR for public shaming.
encounter resistance - and sometimes even violence - while attempting to assist other citizens. Making matters worse, in several such incidents, passersby chose not to intervene on the public servants behalf. To combat this “bystander effect,”75 the Dutch government took the creative approach of installing interactive video billboards over heavily trafficked public streets in Amsterdam and Rotterdam. The screens played pre-recorded scenes of public servants being attacked on the streets just below the signs, and overlaid onto these scenes real-time video from the same location, so that those watching the display could see themselves in the midst of the disturbing scene, yet doing nothing to stop the violence. The video was not interactive, so there was nothing these passersby could actually do about the violence. Nevertheless, viewers gained a unique perspective on just how out of place a passive onlooker appears in that situation. “Whether or not it’s achieving its higher purpose,” wrote Popular Science magazine, “the technology is turning some heads on the street. It appears that being injected into an augmented reality without warning is just as jarring as it sounds.”76
Projection mapping
As discussed in Chapter 2, projection mapping may not meet some people’s definition of “augmented reality.” But when done well, its effect is every bit as immersive and impressive as any other form of digital augmentation.
Advertisers have taken notice. Hyundai used projection mapping to spectacular effect to advertise their new Accent sedan. The company suspended an actual vehicle on the side of a building, then used projection mapping to make it appear as if the building itself moved and morphed into various roadways on which the car trav-eled.15 Nike, BOX, the Tokyo City Symphony, Volkswagen, Nissan, Gillette, Samsung, Sony, Chevrolet, and Lamborghini, among others, have all employed similar technology for marketing spectacles.77 78
HOW AR IS LIKELY TO BE USED FOR ADVERTISING IN THE FUTURE
All of the foregoing technology will continue to have its place in marketing efforts, while at the same time continuing to evolve as advancing capabilities and new imaginations open the door to greater innovation. Each method currently shares the attribute of being new and unusual, which makes it easy for them to draw customer attention and increase engagement. That, in turn, translates into easily quantifiable results for advertising agencies that they can then use to convince more retailers to use the same concepts. As these methods become commonplace, however, something more than easy digital gimmicks will be necessary to capture consumers’ attention.
The following seem like safe predictions to make regarding AR in near-future advertising.
More interactivity in more places
There are millions of static, flat surfaces waiting to be augmented, in the form of the exterior walls on buildings all around the world that generally do not change significantly over time. Billboards and other wall-sized advertisements are similarly durable flat surfaces that, although they change periodically, last long enough to structure a promotional campaign around them. The only thing keeping augmented advertisements from appearing (or, more precisely, being available to be made to appear by the viewer) on them is a lack of adoption by retailers and advertisers - which, in turn, is probably mostly attributable to inertia and the absence of a sufficiently attractive business model to overcome that inertia.
Insufficient adoption of wearable technology is another contributing factor. It is notable that many of the most impressive uses of AR in advertising discussed above employed large, static displays that allow viewers to interact with the digital content without needing to hold up a mobile device to view it, much less download a specific app for that device. Mobile AR will not create that same hands-free, immersive interaction until we no longer need to use our hands to operate the hardware.
Hardware capabilities also limit the range of immersive experiences a retailer can generate. Current digital AR technology looks for pre-determined “target” images on which to display its content, and those images are often deliberately placed indoors, where lighting and position can be controlled. As sensors become better able to recognize a wider range of objects under less controlled conditions, advertisers will have a wider range of surfaces at their disposal to augment - including people walking down an outdoor sidewalk, moving vehicles, and the like.
Biometrics
Along with immersiveness, personalization is another characteristic that makes marketing more effective. The 2002 Steven Spielberg film Minority Report already showed us the path forward to hyper-personalized marketing: biometrics. Although we are not much closer to using retinal scans or fingerprints for mass-market commercial purposes, facial recognition technology is poised for widespread adoption. As discussed at length in Chapter 3, retailers are already implementing facial recognition technology in various settings and industries to remarkable effect, and this trend will only grow as the public becomes more inured to the attendant privacy implications. Accurate sensing and reproduction of other bodily features is similarly advancing. The combination of these technologies will not only allow for “magic mirror”-type augmented displays to sell apparel, but also make it easier for marketers to store and remember an individual’s preferences and shopping history across multiple locations and platforms (again, as popularized by Minority Report).
Recent advancements have also suggested futures that even Spielberg did not foresee. For example, Google created a buzz in mid-2013 by receiving a patent79 on “pay-per-gaze” advertising - a method that crosses the current “pay-per-click” model of online ads with the mobile AR enabled by Glass and other wearable devices. It would allow advertising service providers to charge an advertiser each time someone looked at their ad for a certain period of time through their wearable device.
But wait - there’s more! The same patent described a similar payment model, except gauged on the viewer’s emotional reaction, rather than on mere viewing. “Pupil dilation can be correlated with emotional states, (e.g., surprise, interest, etc.),” the patent notes, and a wearable device that tracks such reactions can also transmit them to the advertiser for analytic purposes.80
Other biometric data would likewise be available for tracking user reaction to advertisements. Chapter 2 explained recent developments in using head-mounted sensors to track a user’s brain waves and correlate them with certain digital content. Similar sensors could correlate certain brain activity with particular advertising, creating a virtually foolproof record of the ad’s true effectiveness. Researchers are already exploring the use of brain waves as a replacement for passwords;81 commercial spin-offs of this technology would not be far behind.
Location-based advertising
One attribute that, by definition, differentiates AR from other digital experiences is its interaction with the physical world. A necessary corollary of that feature is that virtually all devices providing AR experiences will constantly know their geolocation. The market research firm Forrester Research has already issued a report noting “that [such a] device’s location-based technologies and services could be especially useful to advertisers that are attempting to develop more targeted campaigns”.82
But ads are likely to target factors even more specific than mere coordinates. Google has even received a patent on a method for delivering “advertising based on environmental conditions.”83 Using this method, an advertiser “may obtain information on the environment (e.g., temperature, humidity, light, sound, air composition) from sensors [in the user’s mobile device].) Advertisers may specify that the ads are shown to users whose environmental conditions meet certain criteria.”84 Those “environmental” conditions could even include the ambient noise at the user’s location.
A parody depicting augmented sponsored advertising.
Keiichi Matsuda’s vision of a world saturated with augmented advertising.
Augmented (hyper)Reality: Domestic Robocop depicted a daily life literally saturated by augmented advertising (both visual and aural).85 (Fig. 4.6) Real life may not end up looking like either of these depictions, but it seems certain that AR will cause the typical person’s interaction with advertising to be fundamentally different than what we are used to.
With this understanding of how the advertising industry is likely to employ AR technology, we can explore some of the legal issues most likely to be raised.
FALSE ADVERTISING AND UNFAIR COMPETITION
SOURCES OF LAW
“Unfair competition” is a catch-all term for a wide variety of legal claims challenging deceptive or misleading commercial behavior. It encompasses such causes of action as false advertising, false designation of origin, false suggestion of sponsorship, and the like. The primary legal authority creating the right to sue for such actions is the Federal Lanham Act, 15 U.S.C. §§1101 et seq. - the same statute that regulates the use of trademarks. In particular, Section 43(a) of the Act (15 U.S.C. §1125) provides:
1. Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
a. is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
b. in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.86
A cause of action for unfair competition may be brought by a regulatory agency or by a private party whose interests may be negatively affected by the challenged activity. The Federal Trade Commission, for example, has wide latitude to take action against marketing techniques that it deems misleading or deceptive, even if they are not explicitly prohibited by law. Although the immediate harm being alleged is customer confusion, the ultimate interest that the Lanham Act protects is the ability of businesses to compete with each other without undue advantage.
In addition to the Lanham Act, which can be asserted in either state or Federal courts, many states have consumer protection laws or common law that create similar or even greater protections. These include such causes of action as business defamation, which is a libel or slander claim as applied to a business or product rather than an individual.
FALSE ADVERTISING AND UNFAIR COMPETITION IN AR
With the various descriptions of AR technology given so far in this book, one can easily imagine a number of ways in which one could assert an unfair competition claim based on AR advertising.
False advertising
One likely candidate is a lawsuit alleging “false advertising” or some similar cause of action under Section 43(a)(1)(A) of the Lanham Act. As noted above, this includes “any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which .. in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.”87
In order to prevail, a plaintiff must prove that the defendant made a false or misleading statement of fact about a product or service, and that this statement was likely to influence a customer’s purchasing decisions. In reality, though, defendants responding to such complaints end up shouldering an expensive burden to show that their statements (or implications) were true and not misleading. Quite a few of these cases have been brought over the years. As of this writing, Prof. Rebecca Tushnet’s 43(B)log,88 one of the leading resources on this area of law, is up to over 1360 entries under the “false advertising” category (and more in related categories).
How might AR be used to “misrepresent the nature, characteristics, [or] qualities” of goods or services? To answer that question, let’s phrase it another way: how might representations made via AR get the facts wrong?
One obvious answer is “mistakenly.” AR remains an emerging technology with a lot of developing yet to do. And there are currently a lot more ideas about how to apply the technology than there is hardware capable of implementing those ideas. It may seem to the general public that the camera capabilities of smartphones and tablets are maturing rapidly, but to AR developers waiting for markerless object recognition, millimeter-precise GPS, and stereoscopic machine vision capabilities, they’re moving at a snail’s pace.
Consequently, some over-ambitious AR apps may try to convey or recognize more data than they are able to - resulting in blocky, choppy, imprecise output. Under the wrong set of circumstances, that might end up conveying information that is false and has a material impact on a consumer (Fig. 4.7).
Another answer is “by cutting corners” or “over-polishing.” Take, for example, the incident in the Summer of 2012 in which British regulators banned L’Oreal from running ads containing two photos of Julia Roberts and Christy Turlington. L’Oreal’s marketers digitally enhanced both photos to the point that it could not prove to the regulators’ satisfaction that the advertised makeup products were able to produce results like the ones shown. Fashion companies are also lambasted on a regular basis for altering photos of clothing models to give them physical features so extreme as to be anatomically impossible. The difficulty of precise 3D rendering - not to mention the same commercial and societal pressures that lend to the photo alterations - could likewise result in augmented ads that are similarly unrealistic.
By definition, digitally enhancing physical reality is a fundamental element of what AR does. This type of situation, therefore, is one that AR marketers could very
FIGURE 4.7 easily get themselves into if they are not careful (and if they do not run their content by trained lawyers first.)
Ad replacement
Television broadcasts (especially of sporting events) are increasingly using “digital billboard replacement” technology to overlay advertisements in the physical world with digital ads from other companies. 89 Presumably, the companies that purchased the rights to depict the replaced physical banners bought only rights to the physical sign and not to broadcasts as well. And with the advent of such replacement technology, more stadia are likely to sell the two sets of display rights separately.
The ability to replace physical ads on a broad scale in other public venues, however, has not existed until now. And the first effort to implement it was driven not by commercial interests, but by anti-commercialism. The New York-based organization “Public Ad Campaign” believes “that public space and the public’s interaction with that space is a vital component of our city’s health, [and considers] outdoor advertising [to be] the primary obstacle to open public communications.”90 Its mission is to “air our grievances in the court of public opinion and witness our communities regain control of the spaces they occupy.”91
Each of these is a step in an “iterative process” toward an overall “philosophical” goal in mind with these efforts, said Biermann in an interview.92 It is two-fold: first, to change the way people think about public space and second, to democratize the way public spaces are used for communication. Or, as BC Biermann says, “eradicating the last bastions of common space that you can’t control.” “AR can democratize messaging in public space,” Biermann says. “I’m not against commercial messaging per se, but I’m opposed to commercial dominance.”93 Like most of us who write about the future of AR, Biermann envisions a world where people wear AR-pow-ered eyewear that superimposes digital data atop our field of vision in a seamless, effortless manner. But for Biermann, the “killer app” for such hardware would be an “open environment platform that allows users to filter their environment according to their interests.” Users of such a platform would not see the billboards and other commercial messaging that now occupy so much of our public space unless they chose to.
False suggestions of endorsement or sponsorship
The ability to project meaningful, interactive digital content anywhere and everywhere will be both the biggest advantage and largest headache of AR. On occasion, the mere proximity of augmented content will itself be problematic. Allegations of false endorsement or sponsorship under the Lanham Act typically arise when two parties’ trademarks or other distinctive content appears so near each other, or one party’s content is used by a person not authorized to do so, that a question is raised in a viewer’s mind as to whether the two parties have some sort of partnership, licensing agreement, or other formal relationship. Claims are brought by parties who do not wish to be associated with the other party, and who accuse the other party of free-riding on their goodwill.
Those sorts of boundaries are difficult enough to draw when dealing with physical materials or even websites. The democratic nature of AR content creation and projection, though, will allow anyone to locate their digital content literally anywhere in physical space that they choose, including directly on top of someone else’s signage or commercial establishment. The fact that this content will be viewable only through certain devices will make it that much more difficult for the owner of the physical space to police the digital data associated with his property. These circumstances create a fertile breeding ground for claims of false suggestion of endorsement or sponsorship.
Allegedly deceptive advertising methods
The broad, flexible nature of unfair competition law was proven by the fact that the first actual legal complaint filed against an augmented reality advertising campaign was one that nobody saw coming.
On October 19, 2011, four consumer advocacy groups (The Center for Digital Democracy, Consumer Action, Consumer Watchdog, and The Praxis Project - to which I’ll refer collectively as “CDD” - filed a complaint and Request for Investigation with the Federal Trade Commission against PepsiCo and its subsidiary, Frito-Lay. The complaint called on the FTC to investigate and bring action against these companies for allegedly “engaging in deceptive and unfair marketing practices in violation of Section 5 of the FTC Act.” Together with their complaint, the CDD issued a press release and a detailed collection of case study videos - apparently from the advertisers themselves - explaining the challenged ad campaigns.
The CDD objected to several aspects of Frito-Lay’s online ad campaign for its “Doritos Late Night” line of products. The ultimate point of the complaint was to argue that Frito-Lay’s campaign deceives teens into eating too many unhealthy snacks, thereby contributing to the childhood obesity problem. For support, the complaint relied on a “scientific” report called “Digital Food Marketing to Children and Adolescents,” conducted by National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN).94 The report (non-coincidentally released on the same day as the complaint) began from the unstartling premise that “contemporary marketing practices are increasingly multidimensional” and rely on social and relational methods rather than hard-sell advertising.95
The report and the complaint went on to call out five specific forms of outreach to which teens are “uniquely susceptible.” At the top of that list are “Augmented reality, online gaming, virtual environments, and other immersive techniques that can induce ‘flow,’ reduce conscious attention to marketing techniques, and foster impulsive behaviors.”96 The CDD’s reasoning, therefore, was not limited to what Frito-Lay did. Rather, it indicted the very concept of using AR to market to teens.
FIGURE 4.8
The Doritos Late Night AR ad campaign.
The complaint did, however, single out the Doritos campaign as “particularly problematic” (Fig. 4.8).
At least one, and arguably two, aspects of this campaign qualified as AR. Most notable is the “Late Night Concert” featuring the band Blink-182. Here’s how the complaint describes it:
The Late Night music experience utilized “augmented reality,” an immersive marketing technique featuring a vivid interactive experience that can be personalized for individual users. Bags of Doritos Late Night chips were printed with a special symbol to serve as a “ticket” for the concert. Flashing that symbol at their webcams would create the appearance of the stage popping out of the bag of chips.97
The CDD also called out a related feature involving the music video for Rihanna’s song, “Who’s That Chick.” The producers filmed two versions of the video with identical camera angles and choreography. The only difference is that the default video is shot with “daytime” lighting and costumes, while the “Late Night” version has a “darker” backdrop and wardrobe. Holding a Doritos Late Night bag up to a webcam while the video is playing will “unlock” the Late Night version and automatically switch between the two. By at least some definitions, this, too, is augmented reality.
The Doritos Late Night campaign appears to have been a success. According to the complaint and the video case studies, it cites, the website received almost 100,000 hits in its first week, with an average visit length of 4.5 minutes.
The CDD’s complaint was not a lawsuit. Rather, what the CDD did was to gather all of the data it could find to support its argument, packaged the data in what it thinks is the most persuasive manner, and laid it all at the FTC’s doorstep, asking the FTC to do something about it. The FTC has no legal obligation to respond to such complaints. It can choose simply to do nothing. The FTC is “empowered and directed” by Section 5 of the FTC Act “to prevent persons, partnerships, or corporations ... from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.”98 In this context, “unfair practices” are defined as follows:
An act or practice is unfair where it:
• causes or is likely to cause substantial injury to consumers;
• cannot be reasonably avoided by consumers and;
• is not outweighed by countervailing benefits to consumers or to competition.
Public policy, as established by statute, regulation, or judicial decisions may be considered with all other evidence in determining whether an act or practice is unfair.
An act or practice is deceptive where:
• a representation, omission, or practice misleads or is likely to mislead the consumer;
• a consumer’s interpretation of the representation, omission, or practice is considered reasonable under the circumstances and;
• the misleading representation, omission, or practice is material.99
But it is up to the FTC itself to decide whether such methods are being used, and if they are, whether “a proceeding by it in respect thereof would be to the interest of the public.”100
To reach that decision, the FTC usually conducts an investigation first. Even if the FTC does act, there is no deadline for action. It has been known in some cases to let investigations lie dormant for years, only to pick them up again and take action months or years later. After investigating, if the FTC decides to act, it has two options under Section 5. First, it can file a lawsuit in federal court against the allegedly deceptive marketers, seeking an injunction against the unlawful practices and penalties of up to $10,000 “for each violation.” Second, it can hold an administrative hearing, in which the FTC files a complaint and the marketer may defend itself before the Commission itself. Any interested third party (e.g., the CDD) may petition to intervene and offer testimony. That process can also result in an order that the marketer cease the objectionable practice. In either scenario, the ruling may be appealed to a U.S. Court of Appeals.
Meanwhile, PepsiCo has little it can do but wait, and to parry the CDD’s PR blitz. “We are aware of the filing to the FTC and believe it contains numerous inaccuracies and mischaracterizations,” Frito-Lay spokesperson Aurora Gonzalez was quoted as saying. “PepsiCo and its Frito-Lay division are committed to responsible and ethical marketing practices. Our marketing programs, which are often innovative, comply with applicable law and regulations.”101 As of this writing - nearly three years after the complaint was filed - there is no indication that the FTC has taken, or is inclined to take, any action concerning the Doritos Late Night campaign.
Those in the AR industry will recognize Doritos’ webcam-based AR advertising model as entirely commonplace. Although the production values for the campaign appear quite high, the technique of holding a marker up to a webcam to activate content on a desktop monitor - even video content - is first-generation AR marketing. In other words, there is nothing about the technical aspects of this specific campaign that make it any more “problematic” than any other campaign of its genre. Rather, the CDD is on a mission to reduce the consumption of junk food by teens. This campaign used AR to sell teens such food, so the CDD attacked AR. Presumably, if the Ad Council were using AR to lower teens’ inhibitions against quitting smoking, the CDD would not object.
But Doritos Late Night is far from the only campaign on the CDD’s radar. At the same time the CDD filed this complaint, the CDD made it known that it was “likely to file other complaints in the next year or so.”102 The CDD’s website about the complaint lists some specific examples of other campaigns it objects to. Some of the examples on that list were also successful AR campaigns. Although it has yet to file additional AR-related complaints, a CDD representative confirmed to me in February 2014 that the CDD still plans to file them.
The reasoning behind the CDD complaint doesn’t stop at foods, either. Consider this passage from the complaint about the ills of “immersive” environments:
Frito-Lay’s ability to disguise its marketing efforts is further enhanced by the use of “immersive” techniques. Immersive marketing is designed to foster subjective feelings of being inside the action, a mental state that is frequently accompanied by “intense focus, loss of self, distorted time sense, effortless action.” Immersive environments can also induce a state of “flow” causing individuals to lose any sense of the passage of time. Immersive environments use augmented reality techniques to deliberately blur the lines between the real world and the virtual world, making the experience even more compelling, intense, and realistic. In such an emotional environment, a teen is even less likely to recognize that the game or concert event is marketing for the reasons discussed above.103
The same reasoning could be applied to adults, and to the use of immersive AR to sell virtually anything. If the CDD or some other group makes any headway with this argument in fighting snack sales, who will use it next against some other use of AR? “Immersion” is the sine qua non of AR. The CDD’s line of attack, if successful, could pose a potentially existential threat to a large portion of the AR industry as we know it.
Even if this CDD complaint goes nowhere - which, by now, seems likely - it demonstrates that AR is on the radar of consumer watchdog groups. They see “immersive” as a code word for “deceptive.” As a result, any AR advertising campaign targeting teens or other groups that are arguably more vulnerable to suggestion should be particularly wary of attacks by such groups. Future legal challenges, however, may not be limited to just this demographic.
This lesson also demonstrates that marketers should take care in how they describe their own campaigns. The CDD’s complaint and website are chock full of quotes and excerpts from the Doritos advertisers’ own case studies. Be aware that someone may try to use your own words against you. At the same time, starting AR marketers would do well to keep notes not only on how effective their methods are at influencing consumer decisions, but also about how the use of AR benefits consumers and the public. Above all, get legal advice about what constitutes “unfair and deceptive practices” while you are designing your campaign, not after it is over.
BUSINESS DEFAMATION AND PRODUCT DISPARAGEMENT
Advertisements sometimes depict more than the advertiser’s own product, which can lead to more than just false advertising liability. The law of defamation (a.k.a. libel or slander) provides a cause of action against anyone who publishes a demonstrably false statement of fact that injures another’s reputation. We usually think of this cause of action in terms of a slander against an individual’s reputation. But businesses can also bring defamation claims against those whose false statements injure the reputation of their products or services. (Some courts recognize a distinction between “defamation” and “disparagement” of a business or its products,104 but this book will use the terms interchangeably.) Therefore, inaccurate augmented representations of a product could potentially be alleged to defame that product’s manufacturer, in addition to creating an unfair commercial advantage, if the augmented version is significantly less appealing than the real thing.
Imagine, for example, a scenario in which a business hopes to create a splash by being one of the first to use AR for comparative advertising - a type of ad in which the advertiser’s product is compared side-by-side with a competitor’s. In theory, this is a legitimate form of advertising, as several courts have decided over the years. But also suppose that the digital artists recreating the two products as three-dimensional digital objects did not replicate them precisely. Perhaps they cut corners, or the technology simply was not robust enough to render the exact dimensions of the products. The images are good enough to tell what the products are, but are not photo-realistic by any means. Moreover, let’s assume that the artists creating the images are going to pay more attention to detail on the product of the client paying them, as opposed to the competitor.105
This all-too-realistic scenario is a recipe for an allegation of business defamation (in addition to one of more Lanham Act theories). The aggrieved competitor would claim that the sloppy representation of its product created an unfairly negative impression of its product in the minds of consumers, especially as compared to the advertiser’s product. Comparative ads are already an inherently confrontational method of advertising, and they have often provoked lawsuits from competitors chagrined by the ads’ descriptions of their products.106 The inevitable consumer buzz that will accompany the first uses of AR for this type of advertising will bring with it an equal degree of scrutiny by competitors targeted in such ads, making a lawsuit that much more likely. Regardless of who ultimately prevails, the answer will very likely not be obvious, and it will probably require quite a bit of expensive litigation to resolve.
ADVERTISING DISCLOSURES
DISCLOSURES REQUIRED AND ENFORCED BY THE FEDERAL TRADE COMMISSION
As mentioned above, the FTC is charged with policing the marketplace for advertising practices that deceive and potentially mislead consumers. In recent years, the FTC has given particular attention to digital marketing practices. In 2009, it created a stir across the blogosphere by announcing stricter rules requiring the disclosure of any “material connection” between a retailer and any online author - including average, everyday bloggers - who endorse the retailer’s product, even as simple of a connection as receiving a free product to review. The idea was to make sure that the consuming public understood the potential for bias in an online review. In reality, the FTC’s enforcement of this rule focused much less on individual bloggers than on the corporate interests that supplied them, but the announcement did much to educate online marketers and the blogging public about the importance of disclosing to online consumer all information that could be material to their purchasing decision.
In March 2013, the FTC released a new instructional guide called .com Disclosures: How to Make Effective Disclosures in Digital Advertising.107 As explained therein, “[t]his FTC staff guidance document describes the information businesses should consider as they develop ads for online media to ensure that they comply with the law.”46 Because the following summary succinctly captures the advice in the entire document, it is reprinted here with only minor editing:
1. The same consumer protection laws that apply to commercial activities in other media apply online, including activities in the mobile marketplace.
2. When practical, advertisers should incorporate relevant limitations and qualifying information into the underlying claim, rather than having a separate disclosure qualifying the claim.
3. Required disclosures must be clear and conspicuous. In evaluating this point, advertisers should consider the disclosure’s proximity to the relevant claim; the prominence of the disclosure; whether it is unavoidable; whether other parts of the ad distract attention from the disclosure; whether the disclosure needs to be repeated at different places on a website; whether disclosures in audio messages are presented in an adequate volume and cadence; whether visual disclosures appear for a sufficient duration; and whether the language of the disclosure is understandable to the intended audience.
4. To make a disclosure clear and conspicuous, advertisers should:
• place the disclosure as close as possible to the triggering claim; take account of the various devices and platforms consumers may use to view advertising and any corresponding disclosure; design the disclosure to prevent the ad from being misleading when viewed on any of the devices or platforms from which it may be viewed.
• When a space-constrained ad requires a disclosure, incorporate the disclosure into the ad whenever possible. However, when it is not possible to make a disclosure in a space-constrained ad, it may, under some circumstances, be acceptable to make the disclosure clearly and conspicuously on the page to which the ad links.
• When using a hyperlink to lead to a disclosure, make the link obvious; label it appropriately to convey the importance, nature, and relevance of the information it leads to; use hyperlink styles consistently, so consumers know when a link is available; place the hyperlink as close as possible to the relevant information it qualifies and make it noticeable; take consumers directly to the disclosure on the click-through page; assess the effectiveness of the hyperlink by monitoring click-through rates and other information about consumer use and make changes accordingly.
• Preferably, design advertisements so that “scrolling” is not necessary in order to find a disclosure. When scrolling is necessary, use text or visual cues to encourage consumers to scroll to view the disclosure.
• Keep abreast of empirical research about where consumers do and do not look on a screen.
• Recognize and respond to any technological limitations or unique characteristics of a communication method when making disclosures.
• Display disclosures before consumers make a decision to buy, e.g., before they “add to shopping cart.” Also recognize that disclosures may have to be repeated before purchase to ensure that they are adequately presented to consumers.
• Repeat disclosures, as needed, on lengthy websites and in connection with repeated claims. Disclosures may also have to be repeated if consumers have multiple routes through a website.
• If a product or service promoted online is intended to be (or can be) purchased from “brick and mortar” stores or from online retailers other than the advertiser itself, then any disclosure necessary to prevent deception or unfair injury should be presented in the ad itself - that is, before consumers head to a store or some other online retailer.
• Necessary disclosures should not be relegated to “terms of use” and similar contractual agreements.
• Prominently display disclosures so they are noticeable to consumers, and evaluate the size, color, and graphic treatment of the disclosure in relation to other parts of the webpage.
• Review the entire ad to assess whether the disclosure is effective in light of other elements - text, graphics, hyperlinks, or sound - that might distract consumers’ attention from the disclosure.
• Use audio disclosures when making audio claims, and present them in a volume and cadence so that consumers can hear and understand them.
• Display visual disclosures for a duration sufficient for consumers to notice, read, and understand them.
• Use plain language and syntax so that consumers understand the disclosures.
5. If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of a Commission rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated. This means that if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures. Negative consumer experiences can result in lost consumer goodwill and erode consumer confidence. Clear, conspicuous, and meaningful disclosures benefit advertisers and consumers.47
AR marketers will be held to those same standards.
MAKING APPROPRIATE DISCLOSURES IN THE AR SPACE
As noted above, whenever digital content recreates or augments a physical object, there is an opportunity for inaccuracy or exaggeration in that depiction. This, in turn, can cause consumer confusion. To prevent these circumstances from being deemed
unfair business practices and survive FTC scrutiny, advertisers will need to include certain disclaimers and disclosures in their augmented ads. But the medium will present unique challenges in this regard.
Including disclaimers in or with the claim
The FTC’s .com Disclosures manual repeatedly emphasizes the importance of including required disclosures in the same context as the potentially misleading advertisement - to the point of suggesting that when Twitter posts require disclosures, some degree of disclosure must appear in the tweet itself, even though it is limited to 140 characters. Other authorities in this field have reached similar conclusions. In 2012, an arbitration panel of the Better Business Bureau’s National Advertising Division took Nutrisystem to task for posting weight loss testimonials on Pinterest, but publishing the necessary “results are not typical”-type disclaimers on the page hyperlinked to the “pins,” rather than in the pins themselves. Although additional information may be provided elsewhere, at least some degree of disclosure must generally be included directly adjacent to the potentially misleading content.
How this will work with augmented advertising remains to be seen. Consider ads that feature a digital object, such as a car or a washing machine that emerges from an interactive print publication. Regardless of how well-rendered these complex objects are, they are exceedingly unlikely to be photo-realistic using contemporary technology. If the discrepancies between the image and the real thing are material - that is, an attribute that would be important to a consumer’s purchasing decision - then the potential for confusion should be remedied by an appropriate disclaimer. Which feature is material in any given circumstance will depend on the thing being depicted and why it matters to the consumer. If I’m using an interactive print object as an anchor to assess how a particular piece of furniture will fit in a room, for example, I will be primarily concerned with replicating the item’s exact physical dimensions. On the other hand, if I’m shopping for a car, a three-dimensional image would be most helpful in judging its aesthetic appearance and interior layout.
The most liberal, straightforward interpretation of the FTC’s guidelines would require annotations in the 3D image itself warning users about the potential material inaccuracies. But it is difficult enough to render a digital image in a way that creates some degree of illusion that it is a tangible, three-dimensional object. Inserting additional text boxes that explain each shortcoming in the image could disrupt the effect and mar the image so much as to make the ad worthless, or at the very least unappealing.
Of course, the same objections have probably been made by every advertiser in every media, yet the legal requirements remain the same. Necessity births innovative ways to incorporate disclosures without detracting from the message. It seems likely, for example, that disclaimers such as “objects may not be to scale,” if necessary, will be displayed for only a finite period of time, probably while the image is loading. The messages could also be incorporated into an image’s background; for example, if I see a virtual car driving on a moving road, the disclaimer text may appear as text painted on the “road” that disappears after the car drives “past” it. A persistent disclosure could also be printed on the physical target of an augmented display, even though that message would presumably be eclipsed once the augmented display begins. Or a dialog box could appear persistently in the user’s field of view, and be designed to expand when selected to reveal more detailed disclosure information. This would be the closest AR analog to the current internet’s use of hyperlinks to convey more disclosure data than can realistically fit within the advertisement itself.
Some limitations of the medium will be sufficiently obvious that no disclaimer is necessary. When I encounter 8-bit graphics of the kind employed in the Minecraft game, for example, I understand that any depiction of an actual object I see is going to be only the roughest imitation. Paradoxically, it is only as digital imaging technology improves enough that it can depict things accurately that the law will impose upon advertisers the responsibility to be more accurate.
It is also worth remembering that the assessment of when a disclosure is necessary, and how prominent it must be, is inherently subjective, and varies in importance depending on the nature of the transaction occurring. Many of the augmented marketing techniques employed to date are indirect, in that they generate consumer interest, build goodwill, and convey information rather than directly inducing a purchase. Even those that advertise a particular product rarely have the capability to make a direct sale; at best, they contain links to an ecommerce website. As augmented advertisements become more robust and directly commercial, the more important disclosures and disclaimers will become.
Moreover, just as was mentioned in Chapter 3’s privacy discussion, AR may prove to be a boon, rather than hindrance, to accurate commercial disclosures. Color-coded objects or displays could communicate basic messages in immediate and nonjargonized ways, and customers could be required to indicate assent by physically interacting with the displays. Touching a virtual display could trigger an augmented call-out box that ties a particular warning or message to a specific portion of an image that has drawn the customer’s attention. Unbounded by the size limitations of a particular device, advertisers could have more physical area in which to communicate messages so that consumers do not miss them in the fine print. Indeed, augmented displays could prove to be such an effective means of educating consumers that these methods could easily become the norm, and then become a legal requirement.
At the same time, advertisers should not get so carried away with the ability to display content beyond the physical page or object that the necessary disclaimer is placed so far away as to be unnoticed. The concept of “fine print” at the bottom of a 2D advertisement was born out of the advertisers’ desire to meet the legal obligations while being as inconspicuous as possible. On websites, we see the same phenomenon when disclaimers appear in smaller print, different columns, in page footers, or on the other end of a hyperlink. The FTC’s .com Disclosures called out a few of these examples, and warned that such placements are unlawful if they do not occur in the same cell or screen as the associated ad text. In AR, this could mean that ad copy visible through one’s mobile device must make any disclaimers visible in the same field of view, instead of requiring the user to tilt their device in a different direction to see the disclaimer.
Distractions
Even if proper disclaimers of otherwise-sufficient prominence are included in an advertisement, they can fail to accomplish their purpose if the remainder of the display is so engaging that a user’s attention is distracted (Fig. 4.9). On this point, the FTC’s .com Disclosures gives the example of disclaimer text that appears in the correct place and size for a typical webpage, only to become obscured (and therefore ineffective) when the website owner employs a virtual shopping assistant who “walks” across the screen to interact with the user.
This example from the FTC was a bit novel as applied to the vast majority of websites, but is prescient in the context of AR. The very point of AR is to create the illusion of interacting with digital objects as if they were physical. This means that neither advertisers nor regulators can continue thinking about ad text as if it were merely words on a two-dimensional screen. Instead, ad composition will begin to look more like choreography than copy editing. To judge whether a particular element is sufficiently visible, one will need to consider the placement and movement of all elements of the three-dimensional, moving image, as well as the physical location and perspective of the viewer at any given time. If one digital image gets in the way of a user’s view of required disclaimer text, that could render the entire ad unlawful.
FIGURE 4.9
Distractions will be an inherent challenge with AR displays.
A scene from the epic sci-fi film Star Trek II: The Wrath of Khan illustrates the point. The movie’s antagonist is a brilliant military tactician, but he is a transplant from the twentieth century and therefore accustomed to conflict on the flat surface of a planet, rather than the starship battle in which he finds himself. The twenty-third century heroes, who are used to space-based vehicles that travel in three dimensions, are therefore able to outwit their foe. Mastering the art of displaying ads and disclaimers in augmented reality will be a bit like that; those who learn to think in terms of all the medium has to offer will be more successful in using it to communicate effectively.
Empirical research and analytical data
One of the requirements listed in the FTC’s .com Disclosures guide is that advertisers “[k]eep abreast of empirical research about where consumers do and do not look on a screen.”108 The results of such studies are often displayed as heat maps illustrating the parts of a screen to which users’ eyes are drawn - such as the studies demonstrating that readers almost totally ignore banner ads on websites.109 This FTC guidance does not directly require advertisers to conduct such research themselves.
Physical injury
It seems doubtful that many, if any, digital advertisers have 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. Chapter 7 will explore this topic in greater detail.
CONDUCTING COMMERCE
THE EMERGING ABILITY TO CONDUCT MONETARY TRANSACTIONS IN THE AR MEDIUM
Point-of-sale payments in the United States are still carried out almost exclusively in cash or by credit or debit cards. As of this writing, mobile electronic payments via near-field communication (NFC) technology - although popular in many countries -had not yet caught on to any significant degree. That is likely to change very soon in light of Apple’s September 2014 announcement that its next generation of devices would support NFC payments, and that a number of major retailers had already signed on to support such transactions. This is likely to jumpstart the development of an NFC payment infrastructure that other devices will be able to take advantage of as well.
Digital eyewear and other augmented world devices will benefit from such developments. Forrester Research has already suggested that AR technology “can be used ... with Google Glass, allowing consumers to shop for products with Glass acting as a sort of virtual shopping assistant. Moreover, Google’s strong interest in mobile commerce may herald the introduction of mobile payment services that are specifically designed for Glass.”110 Glass already allows users to take a photo simply by winking an eye. In the short film Sight,111 a character wearing AR contact lenses pays for a meal at a restaurant by looking at the virtual representation of a bill and winking at it (Fig. 4.10).
Purchasing milk through the Tesco Google Glass app.
As mentioned above, in 2013, Google obtained a patent for “pay per gaze” and “pay per emotion” systems. Although these are described as methods for ISPs to charge advertisers based on a consumer’s reaction to the ad, they could just as easily be adapted to take payments from consumers in order to access the advertising or other content. In February 2014, the company EAZE unveiled such a system. Dubbed “Nod to Pay,” it enabled Google Glass wearers to pay merchants in Bitcoins by nodding their heads twice.112 Similarly, in August 2014, British grocery chain Tesco released an app for Glass that allows individuals to scan the barcode of a product at home and use the app to purchase the product, which is then delivered straight to the user’s home.113 (Fig. 4.11)
CONSUMER PROTECTION AND CONTRACT LAW
The convenience of such payment methods and the fact that precursors already exist in today’s technology make it highly likely that future devices will provide this payment option. Care will need to be taken, however, to avoid unintentional transactions. Experience has already demonstrated that unintentional winks can result in unintended photographs, so there will need to be some sort of additional safeguard where money is involved. This could be as simple as a virtual “Are you sure?” call-out box at which the user must wink for a second time. Even more ideally, it would involve a second source of input, such as making a hand gesture. Still - as in a public auction where bids can be placed by nodding, waving, or similar gestures - it seems inevitable that a certain percentage of individuals will end up challenging the legitimacy of a purchase registered by an augmented app, arguing that the app misinterpreted the user’s gesture.
However these hurdles are overcome, it seems certain that payments through paper and plastic will wane. Augmented interfaces offer not only convenience, but also additional security, as they can easily be tied to the user’s biometric data as well.
The issue of proper disclosures to customers is also pertinent to monetary transactions conducted in the AR space. Various consumer protection laws in various jurisdictions require all manner of information to be made conspicuously available to consumers, such as price, warranty information, return policies, dispute resolution procedures, shipping options, taxes, ingredients, and the like. On today’s internet, many retailers accomplish these disclosures through lengthy, dense, written policies that the vast majority of customers never read. As discussed above, the augmented medium offers a much wider range of options for displaying such data, but the information itself is still likely to be lengthy and dense.
Some disgruntled purchasers challenge documents like these as “contracts of adhesion” that are “unconscionable” - legal terms of art for provisions that are so one-sided, unfair, and/or poorly disclosed that it would be fundamentally unfair to enforce them against a consumer with no bargaining power of their own. Occasionally, such arguments prevail, but not often. Instead, in the digital context, courts are likely to enforce even the most obscure contractual terms of purchase as long as the purchaser gave some indication of their assent to them. Typically this consent is conveyed by clicking a box that says “I agree.” Hence, such provisions are called “click-wrap” contracts (a derivative of the “shrinkwrap” licenses that used to be printed on a sealed box, and that were deemed agreed to once a consumer opened the seal). Their antithesis is the “browsewrap” contract, which purports to be enforceable merely because a user visited a website, even if they never viewed the “contract” itself. Such terms are often not enforced unless it can be shown that the user assented to them.
What level of assent will be necessary to consummate a contract in the augmented medium? On the low end of the spectrum, the augmented equivalent of an unenforceable browsewrap agreement might be called a “glancewrap” - terms that purport to be enforced on an individual merely because they looked at a dialog box through their digital eyewear. A slightly more affirmative indication of assent would be the nodding, blinking, or waving used by the various apps mentioned above. Whether any or all of these gestures prove to be enforceable indications of assent will depend on the circumstances. Even more direct forms of agreement might include air-signing one’s name, or speaking the words “I Agree” into one’s wearable device.
In terms of the information available to consumers, however, at least one commentator has argued that AR114 will substantially level the playing field between retailers and purchasers. Scott Peppet is a professor at the University of Colorado Law School. As a result of today’s digital media, he argues, “[h]uge amounts of new information is now available to consumers, but it is not perfectly comprehensive. If information about a given product or contract is unavailable, consumers’ ability to sort decreases and firms’ temptations to include oppressive terms in their contracts increases.”115
AR, however, makes it easier for businesses to convey more information to consumers. Peppet identifies at least four reasons why sellers will use AR to better explain their contractual terms. “First, firms can cheaply distribute text, audio, graphical, or video explanations to consumers at the point of sale.... Second, this distribution scale permits firms to centralize such legal explanation^] ... [allowing] corporate counsel [to] control the message . as it scales. [Third] . in an augmented reality, firms can give consumers choice about whether to watch a given explanation of a product or contract term.. [Fourth], augmented reality gives sellers the ability to prove that consumers in fact watched their explanation.”116 Taking advantage of these opportunities would protect businesses from later assertions by a customer that they were deceived, by making it easier to prove that the customer got all of the information they needed to make an informed choice. The more effective such methods of disclosure prove to be, the more likely it is that courts and regulator will begin to require them, or at least apply extra scrutiny to retailers who do not use these methods.117
CONCLUSION
The augmented medium provides a broad range of options for communicating information. Commercial retailers will be among the first to use this medium as a new way to sell their goods and services. There will, however, be a transitional period in which retailer, regulators, and courts attempt to adapt existing standards of propriety to the new medium. In the end, the fundamental goal of commercial speech regulations and consumer protection laws will be the same as it is now - to protect individual consumers from being unfairly manipulated or deceived.
CHAPTER
Intellectual Property
INFORMATION IN THIS CHAPTER:
• Patents
• Trademark
• Copyright
• Publicity Rights
INTRODUCTION
Intellectual property laws protect ideas, creative expression, commercial goodwill, and other intangible concepts. Although they cannot be seen or touched, these concepts have become some of the most valuable assets in our contemporary, knowledge-driven economy. They will remain just as important, if not more so, in a world with ubiquitous augmented reality.
PATENTS
THE NATURE OF PATENT PROTECTION
A patent conveys a property right to the inventor(s) of an invention. In the language of the statute and of the patent registration itself, the right granted by a U.S. patent is “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. To get a U.S. patent, an application must be filed in the U.S. Patent and Trademark Office (USPTO). Patent protection lasts for up to 20 years from the date of application, subject to the payment of appropriate maintenance fees for a utility patent.
Utility patents are the type of patents most relevant to AR. These may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof. In order to receive protection, the inventor must describe the method by which his or her invention would work. Until 1880, the USPTO required that inventors submit working models of their inventions.118 Since that time, however, an applicant need only
101
FIGURE 5.1
Apple’s 2011 patent application showing AR on an iPad.
describe their concept in the patent application in order to receive protection; they need not actually create something in order to have invented it.
United States law also no longer entitles the one who first invents something to the patent protection on it. It used to be that even if someone else beat you to the punch in applying to register an invention, you could undo their patent by proving that you invented it first. No longer, thanks to the America Invents Act that President Obama signed into law on September 16, 2011. As of 2013, it is now the “first to file,” not the “first to invent,” who wins. That is the system that Europe and virtually the entire rest of the world already used.
PATENT PROTECTION IN AR INVENTIONS
Tangible, consumer-level AR applications have only recently begun to emerge because we have only recently devised the hardware and software required to make them commercially feasible. Many of these developments, however, have been anticipated for quite some time, which means that many creative minds have already had plenty of time in which to obtain patents on AR-related inventions.
On July 7, 2011, the USPTO published Apple’s patent application US 2011/0164163 A1, for “Synchronized, Interactive Augmented Reality Displays for Multifunction Devices (Fig. 5.1).” 119 This news, and the accompanying drawings depicting AR at work on an iPad, caused quite a stir in the blogosphere and among AR enthusiasts, who took it as an indication that the era of mass-market AR was finally about to begin.
FIGURE 5.2
But AR has been in the process of “emerging” for years now - plenty long enough for all sorts of companies and inventors to get their ideas registered with the USPTO. These registered inventions include augmented tattoos, advertising on flying footballs, and adding virtual displays to live sporting events (Fig. 5.2).
There is, of course, still plenty of room for innovation in the augmented reality field - just not quite as much room as some might assume. As of Dec. 10, 2011, a search for “augmented reality” in the Google Patents search engine returned about 11,100 hits. In January 2014, that number was up to 160,000.
Moreover, as anyone reading the tech headlines in the past decade realizes, patent litigation is all the rage nowadays. Anyone and everyone with a patent, it seems, is suing or being sued by a competitor with a similar patent or product. In 2012, over 5,000 patent infringement lawsuits were reportedly filed - a spike of over 30% from the year before - and this trend “shows no signs of cooling off, either as a means of generating revenue or of protecting competitive advantage.”120
This is especially true with respect to smartphones and tablets121 - precisely the platforms on which consumer AR is just starting to take off. Therefore, we can expect patent litigation to be one of the first areas in which AR-related legal disputes arise in earnest.
THE FIRST AR PATENT INFRINGEMENT CASE: TOMITA V. NINTENDO122
Tomita alleged that the 3DS infringes this patent. The June 26, 2012 opinion rejected Nintendo’s motion to dismiss the case. The court determined instead that there was enough evidence to allow the case to proceed to a jury.
Most of the discussion in the parties’ arguments and the court’s opinion focuses on how the 3DS’s cameras work to capture 3D images. The patent describes a “means for measuring cross-point (CP) information on the CP of optical axes of [the] pickup means.” The two cameras built into the 3DS are arranged in parallel, but the parties and their experts disagreed over whether the optical axes of these cameras would nevertheless intersect. The court agreed with Tomita that they would.
In addition, as described by the court and the parties, the system described by ‘664 patent includes a “manual entry unit” through which the viewer can change “the operation condition of the display control circuit.” The 3DS has at least two modes: “Camera” mode and “AR games” mode. And it has two means of adjusting the threedimensional image it displays: a circle pad and a “3D depth slider.” In both the camera application and the AR games application, the 3DS’s 3D depth slider only changes the display from a two-dimensional image (turning the three-dimensional display “off”) to a three-dimensional one (turning the three-dimensional display “on”). The dispute over this feature was whether, by turning three-dimensional viewing on or off, the 3D depth slider operates as a “manual entry unit” within the offset presetting means’ structure. To infringe the ‘664 patent, “the relevant structure” in the 3DS must “perform the identical function recited in the claim.”124
The court found that “a reasonable jury could find that the 3DS’s 3D depth slider constitutes a component of the offset presetting means’ structure,” performing one aspect of the identical function recited in the claim. “Specifically,” it continued, the ‘664 patent notes that the “manual entry unit may be [a] switch.. . which is actuated by the viewer depending upon user’s preferences for changing the operation conditions of the display control circuit.” Both parties acknowledge that the 3D depth slider functions in the AR Games application as a “switch,” allowing the user to exercise control over the display control circuit’s operation conditions. Specifically, the 3D depth slider allows the viewer to determine whether the display circuit presents an offset at all. Thus, a reasonable jury could find that the manual entry unit, along with the circuits described in the ‘664 patent, performs the function of “offsetting and displaying” video images by allowing the user to determine whether the circuits will display an offset.125
On this basis, the court allowed Tomita to pursue its claim that, because the unit’s 3D depth adjustment switch allows users to adjust the 3D image they see while in “AR Games” mode, the 3DS allegedly infringes the ‘664 patent.
On March 13, 2013, the jury returned a verdict in Tomita’s favor, and awarded it $30.2 million in damages although the judge in the case had decided as a matter of law that Nintendo had not infringed the patent willfully. Both sides filed motions seeking to adjust these rulings. Nintendo prevailed on one important argument - the amount of the damages award, which was based on the estimated value of a reasonable royalty payment by Nintendo to Tomita for use of the technology. The jury had apparently based its figures on the testimony of Tomita’s expert, who used the “entire market value” of the 3DS as the royalty base for calculating the reasonable royalty rate. This led the jury to a rate of just under 3% of the 3DS’s sale price.
In an August 14, 2013 opinion, the judge found this rate “intrinsically excessive,” for a number of reasons. For one thing, the 3DS itself was not profitable. Nintendo makes its money on the sale of 3DS games, but the evidence showed that “the vast majority of games designed for the 3DS do not require or even utilize the technology covered by the ‘664 patent.” It also struck the judge as unfair to consider the entire value of the 3DS game market when “the ‘664 patent’s technology was used only in two features - the 3D camera and the AR games application - and thus was in some sense ancillary to the core functionality of the 3DS as a gaming system.”126 In other words, the court found as a matter of law that any AR functionality in the 3DS is an add-on, rather than a core feature, of the console.
As a result, the judge gave Tomita two choices - either accept a 50% cut in the jury’s award, reducing it to $15.1 million, or else conduct a whole new trial on damages. The legal term of art for this ruling is “remittur.”
I have reproduced the details of this litigation to demonstrate what patent infringement litigation looks like. Obviously, it hinges on the tiniest of details in the subject inventions and challenged products. Moreover, the ultimate decisions will be rendered by a judge or jury who is unlikely to be knowledgeable in the art, so much depends on how well the issues are explained to them. And in the end, the amount of money at stake in even the most inconsequential AR patents may be significant.
PATENTS AS WEAPONS OF COMPETITION: 1-800-CONTACTS V. DITTO TECHNOLOGIES
Ditto Technologies launched in 2012 as an innovative leader in “virtual try-on” technology for eyewear. It employed webcam-based AR to show consumers what a particular pair of glasses would look like on them.
This apparently caught the attention of its more-established competitor, 1-800-Contacts. According to the Electronic Frontier Foundation, which came to Ditto’s defense, “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.” 127 At the time the lawsuit was filed, 1-800-Contacts still did not offer a competing service, but said that it intended to launch one soon on its Glasses.com site. That app was eventually released for iOS and Android in January and February of 2014, respectively.
What angered the EFF even more was what it perceived to be the strategy behind the lawsuit. Rather than seeking a royalty from Ditto, said the EFF, 1-800-Contacts “seems determined to put Ditto out of business. Period.”128 1-800-Contacts disputes EFF’s characterizations, and claims it has tried to settle the case.129 The parties actively litigated the case for several months, but in November 2013 it was stayed pending the result of Ditto’s request that the U.S. Patent Office re-examine the patent’s legitimacy - a long-shot procedural tactic available to defendants in these situations.
THE FIRST AR PATENT TROLL: LENNON IMAGE TECHNOLOGIES
Lennon is what the patent world calls a “non-practicing entity,” or NPE - more commonly referred to as a “patent troll.” Such companies own patent rights, but do not use them to make or do anything; rather, their only business is to sue other companies for (allegedly) infringing the patents. The patent troll phenomenon is one of the primary drivers behind the explosion in patent infringement litigation; one report found NPEs responsible for more than half of the patent lawsuits file in 2012, compared to less than a quarter in 2007.130 Yet only 16% of the cases actually decided by a court were filed by NPEs, “reveal[ing] a much higher tendency for NPE actions to be resolved without a formal court decision.”131 This corresponds to the anecdotal experience that most companies have with patent trolls; they leverage the threat of infringement liability and the steep expense of patent litigation to coerce an early, favorable settlement out of those they sue.
On July 16, 2012, Lennon filed six separate patent infringement lawsuits, all in the U.S. District Court for Delaware. Each is nearly identical to the other, and is based on the same patent: US 6,624,843 B2, issued Sep. 23, 2003.132 The title of the patent is “Customer Image Capture and Use Thereof in a Retailing System.” The abstract describes an AR “virtual try-on” experience very similar to what we see on websites from Ditto and several other retailers (Fig. 5.3):
FIGURE 5.3
FIGURE 5.4
The Boucheron virtual try-on site shut down by Lennon Image Technologies’ lawsuit.
In a retailing system, an image capture system is provided and used to capture reference images of models wearing apparel items. At a retailer’s place of business, an image capture system substantially identical to that used to capture the reference images is also provided. A customer has his or her image captured by the image capture system at the retailer’s place of business. Subsequently, when the customer is in close proximity to an image display area within the retailer’s place of business, a composite image comprising the customer’s captured image and one of the reference images may be provided. The composite image may comprise full motion video or still images. In this manner, the customer is given the opportunity to virtually assess the selected merchandise without actually having to try on the apparel.133
Of course, one important difference between this abstract and what these defendants do is that current virtual fitting experiences happen online, rather than “within the retailer’s place of business.” One wonders if that will make a difference in the litigation.
Each of Lennon’s complaints specifies a specific website using analogous virtual-fitting technology. Among these is Mattel’s BarbieDreamCloset.com, which an AR company named Zugara designed and launched. This was the only complained-of site that remained active in the days immediately following Lennon’s suits, perhaps because Zugara had recently obtained its own patent134 for similar technology. Lennon’s other lawsuits targeted jewellery-fitting sites run by Boucheron, Forevermark, De Beers, and Tatler Magazine; a watch-fitting site run by Swatch’s Tissot brand; and Skullcandy’s headphone-fitting site. On each of these sites, the “virtual try-on” features were removed shortly after the companies behind them were sued (Fig. 5.4).
This illustrates another tactic commonly employed by patent trolls - suing the end user of the technology, rather than the software company that designed the website.135 In each of these cases, the AR technology behind the virtual try-on component of the website was supplied by a relatively small software company, yet only the big-name brands publicly using the sites were named. The reason is simple: economics. Not only are these brands more likely to be able to afford to pay a monetary settlement, but they also have far less motivation to fight back against the lawsuit. To them, after all, these AR features were merely interesting but one-off promotional experiments. Losing them prematurely was inconvenient, but hardly significant to the retailers’ overall bottom line. It made much more economic sense to pay an early settlement than to invest in defending costly litigation over another company’s technology.
The AR companies, however, rely on the software they sell for their very existence, and are generally more likely to be start-ups without the liquid funding necessary to defend such litigation. Some of them may have settled, but if they could afford to fight, they would have been much more likely to resist the litigation to the bitter end and potentially defeat Lennon’s asserted patent rights. None of that would have made economic sense for Lennon. So instead, Lennon delivered these companies a double whammy - not only did the lawsuits put an end to the AR companies’ existing customer relationships, but they also likely scared away many potential clients who would not risk patent litigation.
And, of course, once the first round of defendants pay their settlement money, this gives the trolls cash on hand to fund another round of lawsuits. That is exactly what Lennon did in March 2013, filing six more identical lawsuits, this time in the U.S. District Court for the Eastern District of Texas. These lawsuits name Macys Inc., Bloomingdales, 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 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, developments like this were easy to anticipate. 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.
Ditto became a poster child for this phenomenon. In a tragic twist of fate, in addition to its dispute with 1-800-Contacts, Ditto was also one of the companies sued by Lennon. This was one of the lawsuits studied in a subsequent study by Catherine Tucker, a professor of marketing at MIT’s Sloan School of Business that attempted to quantify the economic impact of patent troll litigation on the economy. According to Tucker’s study, even though Ditto eventually resolved Lennon’s lawsuit, “the company was still being valued at $3 to $4 million less than it would be otherwise, and it was forced to lay off four of its 15 employees to pay legal expenses.”136 In total, Tucker estimated that lawsuits, the most active patent trolls, cost the U.S. economy more than $21 billion. Let us hope that litigation like this does not unnecessarily deter developers from pushing AR technology forward.137
TRADEMARKS
Although AR-related patent infringement has already begun, it is in the area of trademark law where I expect AR to begin breaking new ground in intellectual property law. Hundreds of innovators have already anticipated and sought patent protection for AR inventions, but the technology is only now entering into the consciousness of consumer-level retailers and marketing professionals.
TRADEMARK BASICS
A trademark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.”138 Technically, a mark that distinguishes services rather than goods is called a “service mark,” although the term “trademark” is often used to refer to both,139 as it will be here. A mark need not explicitly identify the source of the goods or services - it may be suggestive, as many logos are -but the mark must be distinct enough to indicate one source and no other. In this way, trademarks perform an important role in our consumer-driven society, by providing consumers an efficient means to locate products from the providers they trust, and by allowing businesses to protect the integrity of, and goodwill in, their commercial identities.
1. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression.
2. The similarity or dissimilarity and nature of the goods. .. described in an application or registration or in connection with which a prior mark is in use.
3. The similarity or dissimilarity of established, likely-to-continue trade channels.
4. The conditions under which and buyers to whom sales are made, i.e.
“impulse” vs. careful, sophisticated purchasing.
5. The fame of the prior mark.
6. The number and nature of similar marks in use on similar goods.
7. The nature and extent of any actual confusion.
8. The length of time during and the conditions under which there has been concurrent use without evidence of actual confusion.
9. The variety of goods on which a mark is or is not used.
10. The market interface between the applicant and the owner of a prior mark.
11. The extent to which applicant has a right to exclude others from use of its mark on its goods.
12. The extent of potential confusion.
13. Any other established fact probative of the effect of use.140
Not all of these factors may be relevant or of equal weight in a given case, and any one of the factors may control a particular case.
One obtains trademark rights by using the mark in commerce, but registering the mark with the U.S. Patent and Trademark Office gives the owner an even broader range of protection. Trademarks are governed on the Federal level by the Lanham Trademark Act of 1946, as amended,141 as well as a variety of state laws. In a conflict between two trademarks, the one that began to be used (or was registered) first has priority over the other.
Not all trademarks receive the same degree of protection by the courts. In general, the more distinctive the mark is, the more protection it is afforded. In some cases, even a mark which is not by itself distinctive can still be protected because it has acquired “secondary meaning” in the market - in other words, a mark that is indistinct in the abstract can come to be generally understood as signifying a particular source. Courts place marks on a sliding scale of distinctiveness, generally dividing that spectrum into the following five categories:
• Fanciful: These receive the highest protection available under the Lanham Act. They have no logical meaning or alternative meaning and were invented solely to identify goods. Examples include KODAK and XEROX.
FIGURE 5.5
The user-modulated AR ads in Keiichi Matsuda’s video short, Domestic Robocop.
• Arbitrary: Slightly less protected than fanciful marks, but still considered a strong mark. These marks have no logical relation to the goods they are identifying. Examples include APPLE (as applied to computers), BLACKBERRY (for phones), and LOTUS (for software).
• Suggestive: Weaker than arbitrary marks, but still inherently distinctive.
These marks evoke a characteristic of the good it identifies, but the viewer must make a mental inference to connect the mark to the product. Examples include CHICKEN OF THE SEA (for tuna), GREYHOUND (for buses), and COPPERTONE (for suntan lotion).
• Descriptive: Weaker than suggestive marks because they merely describe a characteristic of the product or service with no mental inference required. They are not protected as trademarks unless they have acquired a “secondary meaning” over time. Examples include SUDSY SOAP, ALL BRAN and VISION CENTER.
• Generic: These marks can never be protected as trademarks and are free to be used by anyone because they are basic, common descriptors for the category into which the product or service fits - such as “tape,’ “shirts,” or “computers.” Some marks that were once distinctive can become generic - and therefore unprotectable - by becoming publicly used as a generic term. Examples of words that were once trademarks but became generic include ASPIRIN and CELLOPHANE.
We can be certain that, as digital content gets published in augmented media, trademark-laden commercial content will follow. Perhaps the most extreme (and disturbingly plausible) depiction of “sponsored” augmented reality can be found in Keiichi Matsuda’s short video Augmented (hyper)Reality: Domestic Robocop.'15 The 142 AR user in this video sees literally every flat surface in his modest kitchenette digitally plastered with branded advertisements. At one point he even manually raises the “advertising level” of his eyewear, suggesting that he’s receiving micropayments or subsidized services for each ad he sees (Fig. 5.5).
With that consumer-facing communication come inevitable questions of how commercial goodwill is being used to attract consumer attention. That is the realm of trademark law. Because AR will enable various forms of communication that have not previously been seen, many of the related trademark questions will also be novel.
EXPANDING TRADEMARK LAW BY AUGMENTING NEW SENSES
Anything that distinguishes the source of a good or service can be a trademark. Although trademarks are often thought of as words or graphical designs, the term is also defined to include “symbols,” which can encompass almost anything. Such exotic marks as such as scents, sounds, and colors have been registered in the past. Examples include the lion’s roar at the beginning of MGM films, the sound a Harley Davidson motorcycle makes when it starts, and the tones at the end of an Intel commercial.
Emerging AR technologies have already inspired a wide variety of conventional trademarks, including words, logos, and phrases. Soon, though, technologies that augment our sense of touch may lead to a rush of trademark applications seeking to protect a wide variety of artificial textures. As discussed in Chapter 2, a number of companies from Senseg to Disney to Apple are experimenting with different means of tricking the mind into thinking one’s skin is perceiving whatever haptic sensation a content provider wishes to convey. The potential of AR will never be fully realized until users can reach out and touch virtual objects through haptic interfaces. One way this technology seems likely to (literally) get into the hands of consumers is through retailers using haptic technology to further enhance the “feel” of their products. When that begins to happen, I believe we will witness a resurgence of interest in haptic trademarks. (Other trademark practitioners have called these “tactile,” “texture,” or even “touch” marks, but I prefer the more definitionally sound and technologically consistent term “haptic.”)
Of the less-conventional trademarks, haptic marks are among the least common. Those commentators who have broached the subject in recent years143 have only identified a handful of such federally registered marks. They include a registration by American Wholesale Wine & Spirits for “a velvet textured covering on the surface of a bottle of wine”144-specifically, its Khvanchkara brand of wine. In the course of convincing the U.S. Patent and Trademark Office to register this mark, American Wholesale distinguished its “velvety covering” from that of the more iconic Crown Royal bag by noting that Khvanchkara is “tightly encased within the fabric,” and that the “FEEL of a LIMP bag is quite different from the FEEL of a TURGID velvety surface attached to a wine bottle.”145 Similarly, Touchdown Marketing has registered a trademark in the “pebble-grain texture” and “soft-touch feel” of its basketball-shaped cologne dispenser, and Fresh, Inc. has registered the “cotton-textured paper” that wraps its soap products.
Conceptually, a distinctive touch ought to be just as protectable by trademark law as any other unique indicator of source. Indeed, in 2006, the International Trademark Association (INTA) adopted “a resolution supporting the recognition and registration of ’touch” marks.”146 In practice, however, it is very difficult to separate the way something feels with the function that texture performs - and to come up with a texture that is truly “distinctive” of one product as opposed to other brands within the same category of products.
That is where haptic AR technologies like the ones proposed by Senseg and other companies come in. The ability to coat the surface of any product with a transparent layer of “tixels” capable of mimicking any arbitrary texture the manufacturer chooses would finally break the connection between a product’s feel and the function it performs. Consider, for example, a book cover that feels wet, or a plastic squirt gun that feels metallic. There is no necessary correlation between what these products are or what they do, and the way they feel. There should, therefore, be no conceptual barrier to those manufacturers seeking trademark protection in those textures.
Of course, not every artificial texture will automatically be eligible for trademark protection. Many haptic enhancements may still be chosen for functional reasons. The maker of an automotive steering wheel or a baseball, for example, might choose to make their products artificially sticky to enhance performance. A cell phone might be designed to get warmer in one’s pocket as it rings, in order to catch the user’s attention.147 And it could be that certain haptic enhancements still do not rise to the level of being sufficiently distinctive of a particular source to serve as a trademark. Still, by promising the ability to manipulate the sensation of touch independently from other aspects of a product, haptic AR technologies open up a new and exciting world of trademark possibilities. Consumers may soon reach out and touch ... whatever retailers want them to.
KEYWORD ADVERTISING IN THE AUGMENTED MEDIUM
The growth of the 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.
The primary purpose of all commercial advertising is to draw potential customers to the advertised business or product, and away from its competitors. Moreover, as mentioned in Chapter 4, comparative advertisements - those that compare a product to its competition - have been around for decades. Courts have had opportunities to draw some basic lines between what is okay to say in such advertisements, and what is “deceptive” advertising. In a nutshell, it is permissible to describe your competitor’s goods and compare one product to another, but you cannot say things that are likely to confuse customers into believing that you are your competitor. You cannot say something materially false or misleading about your competitor or your own product. And you cannot do anything to confuse reasonable consumers into mistakenly believing there’s some sort of connection, sponsorship, affiliation, or endorsement between your companies or products.
These boundaries are not always easy to apply, however, and there are several contexts in which the courts have not been able to agree on how they apply. For example, the battle over “keyword advertising”-i.e., using an algorithm to display a “sponsored” ad whenever a user types a given term into a search engine-is still being fought, more than a decade after the practice began.
Google explained its own keyword advertising system, called “AdWords,” this way:
Google AdWords is Google’s advertising program. AdWords lets you create simple, effective ads and display them to people already searching online for information related to your business. So how is it possible to show your ads only to the most relevant audiences? The answer is keyword-based advertising.
When a searcher visits Google and enters a query - say, good beginner guitars -Google displays a variety of relevant search results, such as links to articles containing guitar purchasing advice, or websites dedicated to novice musicians. Google also displays AdWords ads that link to online businesses selling guitars, music lessons, or other products and services related to the query.
For example, imagine that you own a music store carrying a large selection of guitars. You could sign up for an AdWords account and create ads for entry-level guitars in your inventory. For each of your ads, you might select keywords (single words or phrases related to your ad’s message) such as beginner guitars or entrylevel guitars.148
Company A potentially implicates trademark law when it purchases a search term that is also a trademark belonging to Company B. The fact that Company A’s advertising appears when a user searches for Company B’s trademark raises questions of whether Company A is “using” that trademark “in commerce” (most courts have said yes), and whether this use creates a likelihood that consumers will be confused regarding the potential association or sponsorship between the two companies or as to the source of Company B’s goods or services.
Answers to this latter question have been mixed. Some courts over the past decade have found that ads triggered by a trademarked keyword search cause a likelihood of confusion - especially when the resulting ad also incorporates the trademarked term,149 but even occasionally when it does not.150 On the other hand, several recent cases have rejected the proposition that merely purchasing a competitor’s trademark as a search term in and of itself creates confusion.151
This may suggest that the potential for confusion in many situations has decreased as online sponsored ads have become more commonplace.
Where the potential for confusion exists, though, the question of who is responsible for it also remains open. Rosetta Stone is one of several companies to sue a search engine for allowing competitors to use its marks in keyword ads. As most other courts had done in similar cases, the trial court dismissed the suit as a matter of law, finding that Rosetta Stone could not prove that the search engine was liable. But in April 2012, the U.S. Court of Appeals for the Fourth Circuit overturned that holding, finding it possible that the search engine’s policy on the use of keywords in sponsored ads could amount to direct infringement, contributory infringement, or trademark dilution.152 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. But it is fascinating that, even as recently as 2013, one study found that more than 40% of search engine users were not able to distinguish sponsored ads from organic search results,153 suggesting that the potential for confusion remains even more than a decade after this advertising model was adopted.
A campaign by the Public Ad Project and the Heavy Projects.
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 his parody video “AD-mented Reality.”154 The video depicts a world in which every glance triggers another advertisement in one’s digital eyewear, to the point where reality itself become obscured in a sea of sponsored content (Fig. 5.7).
FIGURE 5.7
“ADmented Reality” Glass Parody.
Other commentators have also foreseen augmented advertising and the legal issues they will raise. John C. Havens discussed some of them his insightful piece for Mashable called “Who Owns the Advertising Space in an Augmented Reality World?”155 Noting that Google had already applied for a patent for digitally replacing physical ads within the Street View feature of Google Maps, Havens wrote that “the importance of virtual real estate may quickly supplant actual signage for advertisers. This is especially true when virtual signage could be switched dynamically for individual eye traffic depending on a viewer’s preferences.”156 He went on to quote Gabe Greenberg, director of social and emerging media at Microsoft, as saying that, “if the experience presents the ads in a way that makes sense for the augmented reality experience and the user’s intention, this could be a powerful advertising tool for tomorrow’s marketplace.”157
These predictions are persuasive. As discussed in Chapter 6, I take issue with the idea of applying the law of real property to this scenario. That is not necessarily the end of the conversation, however, because the laws governing trademarks and unfair competition are not about property ownership. They are aimed at protecting commercial goodwill and avoiding confusion among consumers about the relationships between different products and businesses. Sponsored ads on search engines, for example, do not do anything to obscure the results displayed on a search engine; they are merely displayed adjacent to that content. When Company A displays a sponsored ad next to Company B’s trademark, it is not interfering with Company B’s ownership of that mark. But - depending on the content of the ad, how it is displayed, and how it comes to appear on the page - Company A might be misleading consumers into believing there is some relationship between Company A and that trademark. This potential for confusion is what injures Company B and triggers the protections of trademark law.
The potential remains, therefore, that causing Company A’s augmented ad to appear in a certain physical place - for example, on top of or next to Company B’s physical billboard, place of business, or trademarked logo - may create a likelihood of confusion in the minds of consumers. It will be possible, therefore, for augmented advertising to infringe trademark rights.
At least in the short term, that result seems unlikely, if only because of the limited context in which AR experiences are currently available. Today, having an AR experience requires a user to download and open a particular, branded app on their device. These apps also usually offer only a very limited range of options in a predetermined number of situations. So, for example, as of this writing, the only way a user will see a Burger King ad atop the Golden Arches would be by using an app (or usergenerated layer with an app like Junaio, Aurasma, or Layar) designed specifically for that purpose. In this situation, a trademark owner could object to the way that its trademark is being “used in commerce,” and the way in which the app is portrayed could conceivably be confusing. Assuming that the user understands where the app is coming from, however, one can hardly expect the user to be surprised or confused by what they see through it.
The potential for confusion will come within digital services in which consumers expect to see advertising content from a variety of authentic sources within a viewpoint-neutral environment. One does not approach billboards, telephone directories, television commercial breaks, or internet banner ads as such with a predetermined expectation of the message those media will contain. Instead, one bases their determination about the source of a particular advertisement within those media based on the content and context of the ad itself.
For example, merely opening my internet browser tells me almost nothing about what sort of banner advertising I might encounter; I know by virtue of having surfed the internet that I will be served such ads by any random company that may have paid to place them there. But if I’m discerning, I will notice that certain types of websites are more likely to serve up advertisements from a particular point of view, and that the behavioral advertising cookies in my browser will sometimes deliver ads based on my prior online activity. Similarly, to the extent that anyone still reads telephone directories, they ought to expect to see advertisements for local businesses (especially personal injury lawyers) rather than for those located elsewhere.
When we have multi-user, viewpoint-neutral augmented reality browsers is when we should expect to see allegations of trademark infringement arise in earnest. The existing ability to digitally replace physical signs within mapping programs such as Bing and Google Maps offers a glimpse of what such a world will be like. Ubiquitous, always-on AR will feel very much like moving around within a three-dimensional version of those contemporary mapping programs. Once we find ourselves there, what expectations will we have about the advertising we see? More than likely, we will realize that at least some of the augmented content we encounter is provided by the service provider itself (whichever company that turns out to be), while some is triggered by our personal activities and preferences. Just as with behavioral advertisements on the internet today, no two users of the service are likely to encounter all of the same ads.
Unlike the current web, however, augmented ads will necessarily correspond to physical places. It will be those relationships between digital and physical content that raise new and unique questions of when a likelihood of confusion may exist. Sticking with the fast food example, then, will it be permissible in this context for Burger King to deliver users an ad every time they look in the direction of a McDonald’s restaurant or sign? If so, will the law of trademarks and unfair competition place limits on how obtrusive these ads can be? In other words, may they appear only in the periphery of a user’s vision? May they hover in space next to the Golden Arches, or even be superimposed over them? Moreover, the degree to which a service provider makes these decisions - or allows users to adjust such settings - could well determine whether the service provider may be held jointly liable for any resulting infringement.
Courts deciding AR advertising cases in these contexts will apply the lessons learned in pre-existing media, including the reasoning of the search engine keyword cases with which today’s courts are wrestling. Just as search engine algorithms use particular 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 some other trigger, any object that prompts an algorithm to display an ad is performing the same function that keywords do today.
A determination of whether that ad creates a likelihood of confusion will depend on how the likelihood of confusion factors apply to the particular case at hand. As with existing case law on sponsored advertising, moreover, courts are likely to be all over the map in how they decide such cases at first, until the model becomes more commonplace and a consensus forms about what boundaries it is fair to expect advertisers to observe in this space.
FAIR USE AND FREE SPEECH
Trademark ownership is not a complete monopoly on any and all uses of the word or symbol that forms the trademark. Although trademark rights are broad, they exist only to protect consumers from confusion and to safeguard business’s goodwill. As restrictions on the rights of others’ speech, moreover, trademark laws always exist in an uneasy tension with the First Amendment to the United States Constitution. “Because overextension of Lanham Act restrictions in the area of [artistic expression] might intrude on First Amendment values,” wrote the Second Circuit Court of Appeals in the frequently quoted opinion Rogers v. Grimaldi, “[courts] construe the Act narrowly to avoid such a conflict.”158 That case stands for the proposition that artists can freely refer to trademarked goods and services by name in the titles of their songs, films, and other creative expressions. Such issues will inevitably arise in the context of augmented works just as they do elsewhere. There are at least a couple situations, however, in which augmented content will stretch these legal principles in new ways.
Incorporating third-party trademarks into augmented content
Trademarks frequently show up inside of artistic works - especially in video games that attempt to create a realistic world in which players can immerse themselves. For the most part, courts uphold these uses as free speech, due in no small part to the United States Supreme Court’s decision in 2011 that video games deserve First Amendment protection.159
Games and other immersive augmented reality environments will attempt to create similarly realistic digital worlds. In so doing, there will inevitably be some AR applications that recreate actual trademarks in the name of authenticity.
The one fundamental difference between the AR medium and traditional digital expression, however, is that AR content is inherently tied to real physical locations. This distinction adds a layer of risk to replicating someone else’s trademark in AR because associating that trademark with a real place or object could, in many foreseeable circumstances, heighten the likelihood that someone will draw a connection between the trademark and the physical place or object with which it is digitally associated. For example, players may see the mark digitally displayed on the wall of a business not associated with the trademark owner, or the mark may appear (wither physically or digitally) on a real object designed to serve as a target within the AR app. In either circumstance, the mark is no longer confined within a virtual, fictional word created by the artist, but instead is being associated with real objects or places that may be businesses or products with which the trademark owner does not wish to be associated.
This could, in some cases, satisfy enough of the likelihood of confusion factors to add up to a real headache for both the trademark owner and the designer of the AR environment. Of course, it is equally possible - again, depending on the circumstances of the particular case - that the choice to make that particular association between trademark and physical place or thing could, in and of itself, be a creatively expressive decision that merits First Amendment protection. Regardless of result, however, use of trademarks within AR content will inherently raise an additional dimension of legal complexity beyond that found in other digital works.
FIGURE 5.8 broken pipe spewing oil, exactly like the one responsible for the then-current spill in the Gulf of Mexico.
These existing media also teach us that a sizeable portion of that commentary will be directed back toward the brands who advertise to us. For almost as long as companies have been setting up shop at <Company.com > , there have been detractors posting vitriol at <CompanySucks.com > . In today’s social media, popular sites such as Ripoff Report and Pissed Consumer base their entire business models on naming and shaming commercial brands.
Although some early judicial decisions blocked these sites’ ability to reproduce the trademarks of the companies they criticize, most courts and other trademark dispute resolution organizations recognize such content as fair commentary that trademark holders cannot prevent.160 For example, in 2011, the United States District Court for the Eastern District of New York rejected a trademark infringement lawsuit that challenged the use of a reviewed company’s trademarks in the sub-URLs, metadata, and text of PissedConsumer.com.161 Despite copious use of the plaintiff’s marks throughout the website, the court found it implausible that any reasonable person would believe the site’s critical commentary to be sponsored by or associated with the trademark owner.
COPYRIGHT
AR-related copyright issues may not lead to litigation as quickly as patent and trademark disputes will. In the long run, however, I believe that AR is likely to raise a broader range of copyright matters than any other type of intellectual property issue. After all, the realm of copyright law is creative expression, an activity that (unlike innovation or the creation of commercial goodwill) is potentially available to all. AR is a medium in which all manner of creative ideas will be expressed.
COPYRIGHT BASICS
United States copyright law is a state-sanctioned, limited monopoly granted to the authors of creative expression. These authors receive the right to control some of the ways in which their works are used. In exchange, ownership of the work reverts to the public domain upon the expiration of the copyright term.
The U.S. Copyright Act specifies eight broad categories of creative “works” to which copyright protection applies:
1. Literary works;
2. Musical works, including any accompanying words;
3. Dramatic works, including any accompanying music;
4. Pantomimes and Choreographic works;
5. Pictorial, Graphic, and Sculptural works;
6. Motion pictures and other audiovisual works;
7. Sound recordings; and
8. Architectural works.162
One could easily conceive of how each of these types of works could be expressed by augmented means.
United States copyright law affords to creators five basic rights with respect to their copyrighted work-the rights to control its reproduction, adaptation, distribution, public display, and public performance. These broad categories cover most, but not all of the uses one can make of copyrighted works. The copyright statute also carves out various categories of use over which the copyright owner should not have control. Chief among these is the doctrine of “fair use,” which describes a range of activities that benefit society too much to allow copyright owners to squelch them.
OBTAINING COPYRIGHTS
Fixation in a tangible medium
Nothing inherent to the AR medium will prevent augmented content from receiving copyright protection. To qualify for copyright protection, the work must be “fixed in a tangible medium,” meaning it must have some definite, perceptible form rather than just being evanescent sounds or an inchoate conception floating in someone’s head. This requirement provides a measure of objectivity in the application of copyright law, without which society would not be getting anything in exchange for the legal monopoly it grants to a copyright owner. That said, this “fixation” requirement is a loose one. Storing an image in software form is enough; even projecting an image digitally onto a screen or loading software into temporary random-access memory is sufficient.163 This is what allows digital representations to be copyright-protected in conventional two-dimensional media, and the same principle will apply when the same content is visualized by three-dimensional, augmented means. Even though augmented images are not actually in the physical environments in which they are made to appear, they nevertheless reside in a digital intermediary that is sufficiently “tangible” - such as on the lens of a head-mounted mobile device or in a cloud-based computer server. The “tangible fixation” element requires only that the works be stored in a media “from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”164 The specific type of device used to perceive the content is irrelevant.
A decision issued in September 2013 by the U.S. District Court for the Southern District of New York gives a preview of how AR copyright cases are likely to look. In Firesabre Consulting LLC v. Sheehy,165 middle school technology teacher Cindy Sheehy purchased a set of islands within the virtual world Second Life for use in teaching students. Each island in the simulation starts off as a flat green rectangle, and the user can then change the topography and landscape of the island (known as “terraforming”) using a series of interactive tools provided by Linden. Firesabre - a consulting firm specializing in the educational use of virtual worlds - performed various terraforming services for Sheehy on those islands, including a train station, a cafe, music shops, and a volcano. When the relationship between the parties broke down, Firesabre claimed copyright ownership in all of the terraformed content. Allegedly, Sheehy continued to display the content within Second Life and copied some of it to another virtual world, all of which Firesabre asserted to be copyright infringement.
The court denied Sheehy’s motion for judgment as a matter of law, holding instead that Firesabre had alleged plausible allegations of infringement. First, the court decided that the works had been “fixed in a tangible medium” because they existed on Linden’s data servers and were visible within Second Life for a sufficient period of time to be perceived by the students who interacted with the islands.
Second, the court saw no reason to deny copyright protection to the terraformed works simply because others could come along later and modify them. “In this regard,” the judge wrote, “I see no distinction between the terraforming designs and a drawing created on a chalkboard or a sculpture created out of moldable clay. That someone else could come along and, with or without permission, alter the original piece of art does not mean the art was too transitory to be copyrighted in the first place.”166 Therefore, even dynamic AR content will spark copyright law controversies.
Originality and the idea/expression dichotomy
Not every expressive work is automatically eligible for copyright protection. Both the U.S. Constitution and the Copyright Act require that the expression within the work be original to its author.167 Originality is therefore said to be the “sine qua non of copyright.” As explained by the U.S. Supreme Court, the word “original” in this context does not mean novelty (as is required by patent law), but rather that the work was independently created by the author as opposed to copied from other works, and that it possessed at least some minimal degree of creativity.168 The author “must have made some contribution to the work which is irreducibly his own.”169
A copyright is not a reward for mere effort or toil. A work that merely copies or compiles facts or the expression of others - no matter how much skill and effort that copying or compilation may require - cannot be copyrighted. This “idea/expression dichotomy” is the heart and soul of copyright law. That does not mean, however, that the expression must have any degree of artistic or aesthetic merit. As the U.S. Supreme Court held more than a hundred years ago, even “a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright.”170 All that is needed is some creative spark, “no matter how crude, humble, or obvious.”171
The digital wireframes at issue in Meshwerks v. Toyota Motors Sales USA, Inc.
The application of these principles to augmented reality were foreshadowed in the 2008 case Meshwerks v. Toyota Motors Sales USA, Inc.,172 which applied the age-old principle of originality to the relatively new technology: digital modeling (Fig. 5.9). In 2003, Toyota and its marketing partners decided to begin creating digital models of Toyota’s vehicles for use on Toyota’s website and in various other media. This approach offered significant cost savings over the prior method of obtaining vehicle images, which required a new photo shoot of entire fleets of vehicles each time even the smallest design element changed. Digital images, by contrast, can be edited with a few mouse clicks.
Toyota’s marketing partners subcontracted with a company called Meshwerks to conduct the first two initial steps of the project - digitization and modeling. Mesh-werks began this process by collecting hundreds of physical data points from the vehicles to be portrayed. Based on these measurements, modeling software (such as Maya) generated a digital “wire frame” image. Meshwerks personnel then finetuned the lines on screen to resemble each vehicle as closely as possible. According to Meshwerks, approximately 90 percent of the data points contained in each final model were adjusted by a person. Some areas of detail - including the wheels, headlights, door handles, and Toyota emblem - could not be mechanically measured and instead were added by hand.
When Toyota and its partners later used these wire frame images in ways to which Meshwerks objected, Meshwerks sued, claiming that it owned a copyright in the images. Both the district court and the court of appeals, however, disagreed, holding that the wire frame models were merely copies of Toyota’s products, and not sufficiently original to warrant copyright protection. The courts stressed that, despite the significant amount of effort Meshwerks invested in creating the images, it had never intended to create something original. To the contrary, its express intention was to replicate, as exactly as possible, the image of certain Toyota vehicles. That is the only way in which the images would have been useful to Toyota as substitutes for photographs of real vehicles.
Several other courts have likewise denied copyright protection in analogous cases, involving digital copies of physical facts and prior works of art. For example, in Sparaco v. Lawler, Matusky, Skelly, Engineers LLP,173 the court denied copyright protection to the elements of an architectural drawing that conveyed “the existing physical characteristics of the site, including its shape and dimensions, the grade contours, and the location of existing elements, [because this portion] sets forth facts, [and] copyright does not bar the copying of such facts.”174 Other cases have denied copyright protection to catalog illustrations of transmission parts “copied from photographs cut out of competitors’ catalogs,”175 and to high-quality photocopies of paintings.176 They have also denied protection to other examples of the “dimensional shifting” that Meshwerks did replicating a three-dimensional object in two dimensions. For example, courts have held that three-dimensional plastic toys177 and costumes178 based on pre-existing, two-dimensional cartoon characters were not original.
Anticipating the negative reaction to its decision that did, in fact, come from several sources, the Meshwerks court went out of its way to stress that “[d]igital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions.”179 It even suggested “that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices. The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn’t involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space.”180
REPRODUCTION AND DERIVATIVE WORKS
The foregoing section imagined augmented environments so similar to real-world objects that they cannot be protected by copyright. Much more frequently, however, augmented expression will reproduce other, pre-existing creative works - and therefore infringe their copyrights.
Duplicating copyrighted works
In order to prove infringement, a copyright owner must show a “substantial similarity” between the copyrightable expression in the two works. When one work entirely copies another that is an easy showing to make. Because so many AR applications will rely on video technology - particularly wearable devices with video recording capability - replicating copyrighted expression will always be a concern. After all, before digital eyewear is able to add digital content to our view of the world, the devices must first be able to know what we’re looking at.
One of the earliest examples of this concern occurred on January 18, 2014 in Columbus, Ohio. That’s when Federal agents from the Department of Homeland Security and local law enforcement officials allegedly yanked a customer out of a movie at AMC Theaters and interrogated him for several hours. His crime? Wearing Google Glass in a movie theater. The moviegoer was released only after demonstrating that he had not activated the recording function of the device during the film.181
Of course, this concern is by no means unique to wearable technology. In all likelihood, more than 90% of the other patrons in the theater were carrying smartphones, any one of which had both video recording capability and enough battery power to last throughout the film - something Glass definitely does not have. There was no word on how many of them were interrogated. Nevertheless, the emerging revolution in wearable and Internet of Things technologies will certainly multiply the number of recording devices in the wild, and with that will come concerns that copyrighted works are being reproduced.
Other exact replicas of copyrighted works may be deliberate. In order to create an immersive augmented experience of a far-away place, for example - as some companies are already contemplating - the location will need to be exactly duplicated. That would likely include any copyrighted artwork that may be visible in the scene.
Even transferring a work from one medium to another, without more, is a mere reproduction (and hence infringement) of the copyrighted expression in the original. In Meshwerks, the thing being copied was not a copyrighted work, so the only consequence of this copying was that the new work lacked originality. Where the thing being copied is copyrighted, however, the reproduction is an infringement of that copyright. A U.S. Court of Appeals reached a very similar conclusion in Gaylord v. United States.182 There, the U.S. Postal Service issued a (two-dimensional) stamp depicting the (three-dimensional) Korean War Veterans Memorial in D.C. The creator of that sculpture successfully argued that the stamp merely copied his expression and reproduced it in a different medium.
Many artists will see AR as a medium in which they can “bring to life” existing works, especially those that currently only exist in two dimensions. If they are not careful to add their own expression to those recreations, however, a court may find them to be mere reproductions - infringements - of the copyright in the existing work.
Adding to existing works
Substantial similarity becomes more challenging to demonstrate when the copies are not exact. “[T]he copying [must be] quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than [non-protectable elements].... The quantitative component ... must be more than ‘de minimis.’183 Neither threshold is particularly high, but it is ultimately a subjective determination by the court.
The exclusive right to make “derivative works” is closely related to the idea of making an inexact, but substantially similar, reproduction. A derivative work is simply the addition of new expression to an existing work. In either case, a substantial portion of the original work exists in the new one, and the copyright owner’s rights have been infringed.
Since the very definition of “augment” is “to make greater,” augmented reality tools carry with them an inherent risk of creating derivative works. In its most straightforward form, visual AR involves overlaying digital data on top of physical things in order to add content to it or change its appearance.
A few examples capture the point:
• In the books Daemon and Freedom™ by Daniel Suarez, a character nicknamed “The Burning Man” is memorialized by a statue. To the naked eye, it appears to be a conventional sculpture. Viewed through AR glasses, however, it become wreathed in three-dimensional flames, and studded with links to videos and tributes.
• As part of their 2011 Re + Public collaboration, the Heavy Projects and the Public Ad Campaign used AR to “filter” outdoor advertising and replace it with original street art. Looking through an AR app, outdoor commercial advertisements were overlaid with political or artistic messages. One such pointed message caused the image of “Captain Barbossa” in the poster for Pirates of the Caribbean 4 to morph before a user’s eyes into the face of Goldman Sachs CEO Lloyd Blankfein conveying the artist’s message that he is the “real pirate” (Fig. 5.10). Similar projects have superimposed digital content onto public murals in a form of augmented graffiti.
• Artist Amir Baradaran published a mobile app called “Italicizing Mona Lisa.” It is designed to display on your phone as you hold it up to a physical version of the iconic painting, creating the video illusion that the woman depicted there wraps herself in the Italian flag.
• “Projection mapping” uses three-dimensional video to animate stationary objects, usually the sides of buildings. When done well, projection mapping creates the powerful illusion of a building actually coming to life and moving in three dimensions.
Do these digital animations infringe the copyright of the physical art they augment? In the typical “augmented substitution” scenario, in which content on a mobile screen simply overlays or complements the existing work, no infringement is likely. That is because the digital content is not actually doing anything to the original work. It is not making a copy of or altering the original. Even though the physical display acts as a trigger for the digital content, and even though the user’s mobile device causes the digital content to appear as if it exists in the real world in place of the
FIGURE 5.10
From Pirates of the Caribbean to “the Real Pirate.”
original, it doesn’t actually exist there. It’s an effective illusion for creating an immersive experience, but it’s an illusion nonetheless. The content stays on the mobile screen, where it is a separate digital work that exists apart from the physical display.
But the question gets more complicated when the digital content actually makes the physical display appear to morph, as in the Pirates of the Caribbean and Mona Lisa examples. That is because, more likely than not, the AR software has already stored a reference copy of the original and altered versions of the physical work. In other words, the programmer may have created a reproduction and a derivative of the physical work long before anyone uses the program to interact with the physical artwork. In order to create the illusion of movement in the physical painting, the AR programmer first reproduced the artwork, then created a digital alteration of it. That doesn’t raise any copyright concerns with public domain works like the Mona Lisa, but artists who digitally copy and morph copyrighted works are taking a risk.
Augmented architecture
Projection mapping and other means of augmenting architectural works add another layer of nuance. Today, this technology is confined to elaborate, after-dark advertisements on the sides of buildings. After AR becomes ubiquitous, however, I doubt that there will be many buildings that are not animated in one way or another. Unlike contemporary projection mapping, the effect will be superimposed by the user’s AR viewer, instead of light being physically projected onto the surface of the building. Those who design these experiences will no longer be limited to the actual physical dimensions of the brick-and-mortar edifice. Instead, you could find a building actually wrapping its (simulated) arms around you, or see (virtual) flames spewing from its windows, or any other effect one can imagine. All of which leads a curious IP attorney to wonder: could any of this activity infringe the architectural copyrights of the person who designed the building?
One type of creative expression in which copyright may inhere is an “architectural work”-i.e., “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”184 But Congress also recognized that allowing architects to fully enforce all five of the basic copyright rights could cause all manner of logistical nightmares throughout society. So it pared back some of the protections available in architectural works. Specifically, Section 120 of the Copyright Act185 allows people to make, distribute, and display pictures of public buildings. It also lets the owners of a building alter or destroy the building, if they so choose, without needing to first get the architect’s permission.
Second, even if a creative litigation attorney argued that simply creating the perception of a morphing building was enough to create a derivative of the building design, such an “alteration” should fall within Section 120's exception. Although there is very little case law interpreting Section 120, one court accurately observed that “Section 120(b) does not expressly contain any limitation upon the manner or means by which a [building owner] may exercise his right to alter the structure. Presumably, no such limitations were intended by Congress, else they would be expressed in [that section].”186 The one catch here is that, as written, this statutory exception allows only the “owner” of a building, not anyone else, to authorize an alteration to the building. So the projection mappers would need to have the owner’s permission; guerilla marketers would not have this statutory defense. Again, though, there would not appear to be any actual alteration made in the first place.
But would the result be the same if the illusion of an animated building were accomplished through AR smartphone/eyewear instead of an actual video presentation? Yes-for the most part. Whether the video image is actually projected on a building or only overlaid over the viewer’s perception via AR, there is still no alteration of the actual building occurring.
There is a potential catch, however, depending on how the AR effect is accomplished. If the data superimposed on the building consists solely of original imagery designed to overlay the building, that’s conceptually equivalent to existing projection mapping. But what if the AR designer copies the actual building design into virtual space, then alters that design, in order to create the end result? That would complicate things from a copyright perspective. An architectural work can be embodied either in 2-D written drawings or in a 3-D manifestation. Making a copy of the design is infringement, unless an exception applies. Section 120 allows people to make “pictures, paintings, photographs, or other pictorial representations of the work.” A virtual recreation may very well fit that description. But the statute does not expressly allow the person who makes that pictorial representation to then alter the picture. Arguably, that could be creating a derivative work.
Even under those circumstances, potential defenses are available. For example, at least one court187 has found within Section 120 an implied right to copy and alter a building’s plans for the purpose of creating an owner-approved alteration to the building. Otherwise, the court reasoned, an architect hired by a homeowner to renovate a home would be forced to do so without the benefit of written plans-a dangerous prospect. A similar argument could be made in the AR space, depending on the purpose of the alteration. A different court,188 however, has disagreed that any such implied right to copy plans for the purpose of altering a building exists.
PUBLIC DISPLAY AND PERFORMANCE
Public display and performance rights will also be at issue, in sometimes novel ways. Because most AR content will be experienced through individual mobile devices, one might presume those experiences to be private, rather than public, displays and performances. But AR programs that are aware of a user’s geolocation and that are designed to portray content as being physically manifest at that location challenge that presumption. For example, the British Museum released a mobile app designed to show users historical London photos in the actual, public location where they were taken. The photo itself never leaves the confines of the mobile device, but its display is triggered by the user’s physical location.
The same issue is presented by performances of location-aware video content. In 2011, tech news outlets reported on a man who had tattooed on his arm a target marker image used by a Nintendo 3DS game to represent an animated dragon. To the outside world, the tattoo was simply an uninteresting, approximately square-shaped symbol. When viewed through the 3DS device, however, it came to life as a threedimensional, moving dragon.
Is that a “public” display and performance? And if so, has the app developer or end user acquired from the copyright owner the appropriate license rights for that public display? The case of the dragon tattoo seems likely to have exceeded whatever license may have come with the 3DS device for displaying the content. Entire industries were forced to confront the limitations of their licenses when the internet became a new medium for republishing old content; AR will present similar challenges. User-generated content and social media will guarantee that works get publicly displayed in all sorts of unanticipated ways. Such questions will grow in importance as our surroundings become populated with triggers for all sorts of digital data.
MORAL RIGHTS
The collection of rights known as “moral rights” are quasi-copyright protections entitling the creator of an artistic work to protect the integrity of their creation, regardless of who may come to own the work. This is primarily a European concept not recognized in U.S. law, and therefore is beyond the scope of this book. A form of moral rights, however, can be found in the Visual Artists Rights Act, which, among other things, gives artists a limited right “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” 189
Whether the VARA or similar rights will ever apply to AR content remains to be seen. Case law interpreting this right is scarce, and by its very nature it cuts against the grain of the Copyright Act’s design. United States copyright law places the power to control a work in the hands of whomever owns its copyright, as opposed to the original artist who created the work and then only within the five exclusive rights of a copyright holder. Moreover, digital augmentations of a physical work typically will not alter the actual physical work. Nevertheless, the foregoing Mona Lisa example illustrates how convincingly a physical work of art can digitally be made to appear as if it is being distorted. It is easy to foresee a visual artist taking umbrage to such augmentation, and resorting to every creative legal means available to enjoin it.
FAIR USE
Each of the foregoing examples of scenarios that may be considered copyright infringement are subject to affirmative defenses that may defeat the claim under particular circumstances. Among those is the defense of fair use. The Copyright Act identifies certain activities that are presumptively permissible under this doctrine -including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”190 This list of preferred activities derives directly from First Amendment case law, as each of these is an example of speech that contributes in one way or another to conversation about issues of public importance. It is a recognition that free speech rights ought to trump intellectual property protections in some circumstances.
Unlike most statutory exceptions to copyright infringement liability, however, whether any particular use is “fair” under any given set of circumstances can only be determined on a case-by-case basis by applying four subjective principles:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.191 192
AUGMENTED COPYRIGHT ENFORCEMENT
Copyright enforcement will also be a major challenge in the AR medium. The mass lawsuits of the past two decades against file-sharers and signal pirates have required a significant amount of detective work and discovery to connect individual users to allegedly infringing downloads. Pursuing legal action against those who share infringing content in the augmented medium will not differ categorically from these efforts. After all, augmented content only appears to exist in three dimensions; in reality, it will still reside in a hard drive, device, or server somewhere that can be located and tracked. Indeed, the earliest versions of digital eyewear available now have relatively little on-board memory or processing power, and only connect to the internet by means of a connection (some hard-wired, some wireless) to a mobile phone, and many of their apps reside in the cloud.
As augmented content proliferates across the Internet of Things - and especially the types of distributed, ad hoc mesh networks described in Chapter 2 - the substance and sources of data will become that much harder to track. The entire world will eventually
FIGURE 5.11
Excerpts from A Read-Only Future.
become a giant peer-to-peer sharing network; think of AR channels as bit torrent sites that users can walk through, see, and touch. So-called “darknets” - sealed digital communities with no visible connection to the internet - will become much more common.
One can imagine that it will become even more difficult to prove that a particular user viewed a particular work when the “display” occurred entirely within a mobile headset. As discussed in Chapter 10, I expect that many litigators will soon be conducting “v-discovery,” in which they must determine not only the device to which virtual data was routed, but also where individual users were located, and in what direction they were looking, when the data was displayed.
On the other hand, AR eyewear could also be used as a copyright enforcement mechanism. The YouTube video A Read-Only Future193 depicts life through the eyes of someone wearing digital eyewear that is regulated by the entertainment industry (Fig. 5.11). His glasses recognize copyrighted content in the user’s field of view or range of hearing - such as a photo hanging on the wall or a song being played on the sidewalk - and obscures it unless he agrees to a micro-license payment. Just as in concept videos for actual digital headsets, the eyewear in this video is able to share content directly to Facebook, but these will refuse to do so if they detect unlicensed content. They even alert the authorities if the user stumbles across an unauthorized reproduction published by someone else. Excerpts from copyright skeptic Larry Lessig feature prominently in A Read-Only Future, which plays out as if it was Lessig’s nightmare.
This scenario is entirely plausible in light of how most AR apps function today. A mobile device scans the ambient world looking for one of the targets it is preprogrammed to recognize. Each time it captures a view, the device sends that image to the cloud to check against the portfolio of targets. If a match is found, the cloud server sends back the digital content associated with that target. Several non-AR apps operate in a similar way; for example, the popular mobile app Shazam listens to ambient music and identifies it in real time, allowing users to purchase a copy of the song or follow along to the lyrics. A few months before this book went to print, Shazam became available on Glass.
It would be child’s play to simply add a roster of copyrighted works to a cloudbased catalog of targets. Every time the cloud server recognizes one of the protected files in its database, it could be set to trigger a request for micropayment, or obscure the work, or even issue a warning to law enforcement or the copyright owner itself. The fine print in our mobile app stores already prohibits us from using the apps to commit copyright infringement; this would be going one step further to turn mobile devices into the eyes and ears of the copyright police.
Such an enforcement mechanism could potentially be so effective, and offer such a unique functionality not available by any other means, that the company able to provide it would be foolish not to monetize it. Today, mobile devices (including digital eyewear) receive their internet connections through such providers as AT&T, Verizon, Sprint, and the like. In the near future, we may instead get online directly through the “panternet” mass wireless signals emitted by Google or Facebook and discussed in Chapter 2. Whichever company provides that service could easily sell to copyright owners the ability to police copyright compliance through the network of AR-capable devices they serve. Internet service providers (ISPs) would then become analogous to the performance rights organizations (PROs) of today - ASCAP, BMI, and SESAC - which rely on human investigators to overhear unlicensed public performances of copyrighted music. Indeed, these PROs could contract directly with ISPs to enforce their entire catalogs - deputizing every AR app user as investigators.
With such an arrangement in place, ISPs might even share the wealth in order to incentivize users to cooperate. Imagine if AR users received a micropayment each time they used their device to report an observed copyright infringement. Knowing that anyone you meet is a potential copyright cop would certainly be a powerful disincentive to would-be casual infringers. Five years from now, instead of movie theaters detaining and interrogating digital eyewear users, they may be rewarding them.
LICENSING
As with anything else, copyrights can be enforced through either carrots or sticks (or a combination of the two). If the aggressive enforcement action described above is the stick, then the carrot would be offering licensed content. In the early 2000s, digital music piracy was rampant, and CD sales were in free-fall. Not because the internet and digital music were inherently unlawful, but because the traditional publishers of copyrighted music offered no satisfactory alternative to meet the demand for digital music. Not until Apple introduced iTunes in 2003 did consumers finally have a digital marketplace robust enough to meet their needs. Since then, digital distribution (through iTunes, more often than not) has become the default means of obtaining new music.
It remains to be seen how much of a problem copyright piracy will be in the AR medium. Establishing an infrastructure for lawfully obtaining a wide variety of desirable content, however, will still be the means by which content creators will be able to make money from AR. In October 2013, NYU Polytechnic professor Mark Skwarek (who also created the “Leak in Your Home Town” app described in the foregoing trademark discussion) introduced the first augmented Halloween masks (Fig. 5.12).194 Trick-or-treaters wearing a four-inch target in their hat or hair would be seen by users of Skwarek’s AR app as if they were wearing giant, virtual masks. Once enough devices are in place to make the ability to perceive such content sufficiently ubiquitous, companies could easily begin selling entire lines of virtual Halloween costumes. The same infrastructure would allow sales of augmented clothing year-round, along with augmented ornaments, decor, signage, toys, games indeed, a digital analog of almost anything that exists physically.
FIGURE 5.12
Prof. Mark Skwarek’s Augmented Halloween Mask.
marker)? Pay the license fee. Are you a University of Michigan fan and you want other drivers (using augmented windshields) to see your car as if it were a giant, blue-and-maize-wearing wolverine? Pay the license fee. Want to see Mickey Mouse ears on the moon each time it rises? The list of examples is limited only by one’s imagination.
On today’s internet, copyright enforcement blends with licensing in the form of paywalls - websites that cannot be accessed without making a micropayment or purchasing a subscription. When it comes to augmented content, we could easily encounter similar paywalls - including some that we perceive as actual, physical walls - literally everywhere we go. Digital entertainment and other content could be made available floating in mid-air, on the side of a building, or anywhere else - but only accessible for a micropayment. As discussed earlier, the infrastructure for such payments is already being constructed. In 2013, Google obtained a patent for “pay per gaze” and “pay per emotion” systems. Although these are described as methods for ISPs to charge advertisers based on a consumer’s reaction to the ad, the concept could just as easily be adapted to take payments from consumers in order to access the advertising or other content. Chapter 4 described multiple ways in which companies are already beginning to explore such “commARce” solutions.
Of course, too much reliance on such business models could have adverse social consequences. Retailers have always known the power of “impulse purchases,” as well as how to position and price their content attractively enough to entice users to buy. It is a profitable model for retailers, but not exactly conducive to consumers maintaining a disciplined budget. If large quantities of copyrighted content - news reports, public art, television shows, and the like - became available only behind AR paywalls, it could deprive society as a whole of valuable experiences and encourage excessive spending. At this point, however, these remain only long-term, hypothetical concerns. How the new economic models shake out remains to be seen.
THE RIGHT OF PUBLICITY
Just as trademarked objects can easily serve as triggers for digital content, so too can the physical characteristics of individual people. The simmering debate over facial recognition technology and privacy summarized in Chapter 3 is a preview of the concerns we are likely to face when a large segment of the population is wearing eyewear capable of recognizing the faces of others.
The main concern voiced about this technology to date has been “privacy,” although society in general seems to have no consensus about what that word actually means. But I also expect that the right of publicity - that weird, state-law transitional species between the common law of privacy and intellectual property - will play an increasingly prominent role in this debate going forward.
THE BASICS OF PUBLICITY RIGHTS
The right of publicity is a state-law right that emerged from the common law of privacy to become more or less recognized as a form of intellectual property. It is the fourth of Dean Prosser’s four causes of action for invasion of privacy discussed in Chapter 3. Although the particulars vary slightly from state to state, it is essentially the right of an individual to control the commercial exploitation of his or her likeness. The best summary of the right of publicity as generally understood across the United States comes from the Restatement (Third) of Unfair Competition section 46: “[o]ne who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability.” Each clause of this definition holds legal significance.
Commercial value
The “commercial” aspect of this right is intentional. It is what distinguishes the use of someone’s likeness in creative expression like a movie or song - which is generally free speech privileged by the First Amendment - from commercial speech designed to advertise and sell goods or services, which is more akin to a trademark, and hence within the realm of governmental regulation and property rights. In order to prevail on a publicity rights claim, therefore, a plaintiff must generally prove that her identity has “commercial value” - i.e., that there is reason to believe that her identity would be worth something to an advertiser, or that a customer might be more likely to pay attention to a product because the plaintiff’s identity was associated with it.
For that reason, courts had long ruled that the right of publicity was only available to “celebrities,” and not the rest of us. Today, the rise of digital (and especially social) media makes it entirely realistic to argue that we can all attain commercial value in some context. One argument for establishing “commercial value” in social media is the value of personal relationships. On many social media sites, the identity of the person with whom one interacts in social media both incentivizes people to participate in the site and adds qualitatively significant value to the experience. And the more such interactions that occur on a particular social media site, the more benefit the owner of that site derives (in terms of advertising revenue, search engine tie-ins, or whatever the site’s business model may be).
Therefore, in a very direct and measurable way, some would argue, digital (and especially social) media is a context in which literally every user’s identity has potential commercial value. Two judicial decisions stemming from lawsuits filed against Facebook in recent years have given some credence to this view,195 as did a lawsuit over a banking executive’s LinkedIn profile.196
Likeness
In this context, one’s “likeness” typically takes the form of one’s physical appearance, name, signature, or voice. The restatement expressly lists two examples of ways in which a person’s identity can be “indicated”: their “name” (which typically includes both the name itself and the person’s signature) and their “likeness,” or personal appearance. But the common law includes in that term any other “indicia of identity.” So a famous race car driver’s likeness was infringed by using a picture of his distinctive car, and Johnny Carson’s right of publicity was infringed by the product name “Here’s Johnny Portable Toilets” because the phrase “Here’s Johnny” had come to be associated with Carson.
FACIAL RECOGNITION AS INFRINGING THE RIGHT OF PUBLICITY
Before long, someone is going to file a lawsuit arguing that facial recognition technology infringes the publicity rights of the person being scanned. I am actually surprised that, as of this writing, no one seems to have yet made this argument in court. Right of publicity law regulates the commercial exploitation of a person’s identity, which is generally thought to include at least their physical appearance. The same commercial forces that guarantee the expansion of facial recognition will also provide plenty of evidence demonstrating the commercial value of the data. It will not take a scholar to connect the dots and argue that the people scanned should recoup a portion of any money made from their biometric data.
Whether this argument gains any traction is another matter. Biometric data is already widely used for entirely utilitarian (and especially security) purposes - witness, for example, the fingerprint scanner introduced in the iPhone 5S. Entire social networks and other user-generated content may come to rely on the ability to use facial recognition to identify specific individuals. As facial recognition capability becomes more democratized, allowing not only corporations to scan and store such data, the First Amendment may come to protect an individual’s right to identify and annotate their knowledge of others in this manner. Allowing people to own intellectual property rights in that data might complicate matters too much for that technology to remain useful, to the detriment of society as a whole.
THREE-DIMENSIONAL CAPTURE OF ENTIRE BODIES: SEX APPEAL AND THE RIGHT OF PUBLICITY
Traditional biometric indicators may not be the only way in which augmented technologies catalog and exploit individuals’ physical attributes. Mass-market devices like Microsoft’s Kinect are already designed to recognize entire bodies. A few years ago, artists in Spain set up a booth that used three Kinect cameras to scan individuals from head to toe. That data was relayed to a 3D printer in order to make a personalized figurine of the person right there on the street. Today, there are companies simultaneously using more than 60 sensors more precise than the Kinect to digitally render individuals in real time with amazing accuracy. Moreover, the year 2014 saw the introduction of the Kickstarter-funded Structure Sensor - an iPad accessory that allows the device’s camera to capture three-dimensional imagery from its surroundings in real time - and Google’s Project Tango, an experimental depth sensor that also renders ambient surroundings in 3D.
AR applications will take advantage of such capabilities in order to superimpose digital data on a person’s entire body. Many of these will be benign; entire markets will develop for virtual clothing and accessories, for instance. Security professionals already scan entire bodies for contraband, and have made progress in identifying individuals based on their gait as well.197
Other applications, however, will go beyond merely analyzing images of bodies to storing and repurposing those images. In an age where sexting is an epidemic among teens and states like California are forced to outlaw the salacious repurposing of such content (i.e., “revenge porn”), it does not require much imagination to conceive of the unsavory uses to which 3D personal imaging technologies could be put. (I would be surprised if, by the time this book sees print, there have not already been instances of three-dimensional sexting.) To date, in courts across the country, one of the most frequent reasons for invoking the right of publicity has been to enjoin the prurient use of girls’ and women’s images, which are often recorded unwittingly. It is logical to expect the same laws to be applied when those images are collected and manipulated by new digital media.
How effective this right will be in these new augmented realms remains to be seen. The right of publicity has always existed in tension with the First Amendment’s protection of free speech, and often finds itself pre-empted by the Copyright Act as well. Both of these more-established bodies of law are likely to keep publicity rights from expanding too broadly. But there is still quite a bit of conduct that falls within the gray area between these areas of law, where the boundaries have yet to be definitively drawn.
“Profiting directly from their sex appeal”
In 2009, a 22-year-old college student calling herself Natalie Dylan sold her virginity to raise money for grad school. The bidding, conducted online for services to be rendered in Nevada, where prostitution is legal, went as high as $3.8 million. While her decision received a fair amount of criticism and moral approbation, she was also congratulated by the CEO of a Fortune 500 company for her “entrepreneurial gumption.”
Explaining her decision, Dylan wrote: “it became apparent to me that idealized virginity is just a tool to keep women in their place. But then I realized something else: if virginity is considered that valuable, what’s to stop me from benefiting from that?... I took the ancient notion that a woman’s virginity is priceless and used it as a vehicle for capitalism.”198
“I might even be an early adopter of a future trend,” Dylan predicted. “These days, more and more women my age are profiting directly from their sex appeal.”199 She was right. The following year, the UK press profiled an 18-year-old Romanian girl who sold herself in exactly the same manner (but for far less money), citing Dylan as inspiration. Search engines reveal hordes of similar copycats. Still, Dylan concluded that “society isn’t ready for public auctions like mine - yet.”200
Publicity rights as shields against prurient publications
Several courts have used the right of publicity to stop others from using plaintiff’s image in a sexually suggestive manner. For example, Bret Michaels and Pamela Anderson won a lawsuit to block publication of their sex tape on this and other grounds.201 More recently, Kim Kardashian argued that a sex doll bearing a striking resemblance to her violated her right of publicity.202
In 2004, Catherine Bosley, a local newscaster in Ohio, sued when a video of her participating in a wet t-shirt contest found its way online and went viral.203 204 She won, but the reasoning the court used to reach that result raises some questions. For reasons I’ve discussed elsewhere in more depth, the logical implication of the court’s holding is that, despite her pre-existing status as a “regional celebrity,” Bosley’s commercial value had nothing to do with her unique, personal “identity,” as right of publicity case law has traditionally required. Rather, it came solely from the prurient value associated with her taking her top off. Several cases involving “Girls Gone Wild”-type situations have reached similar results. The implication of each ruling is that commercial value came from the plaintiff’s body, not her identity.
Only days after this ruling, a local Federal judge likewise refused to dismiss Arnold’s parallel “false endorsement” claims under the Lanham Act.206 The court’s reasoning was slightly different than the state court’s. The court only went so far as to note that Arnold had “a present intent to commercialize her identity.” In other words, as long as Arnold had opened the door to commercially exploiting her own appearance, she would be allowed to make her case that her identity did, in fact, have commercial value. Nevertheless, there was still no discussion of the distinction between “likeness” and “identity.”
Taken together, therefore, these cases demonstrate that the right of publicity (and related claims) can be an effective basis for attractive people to prevent others from publishing prurient images of them without permission. The means of achieving that result, however, is to think of those plaintiffs’ bodies in purely commercial terms, and to legally equate their physical appearance with their identity as people.
My body, my intellectual property
I am not necessarily suggesting that these cases were wrongly decided based on legal precedent, or even that their results are inevitably bad for society. To the contrary, judges have understandably latched onto publicity rights as one of the few effective mechanisms for putting an end to revenge porn and other exploitative content. It is an easier solution than copyright law, since copyrights vest by default in the person taking the picture, rather than the person depicted in the picture. Until we have better laws, or better judicial precedents, to rely on, the right of publicity may remain the best tool courts have for combatting revenge porn and other unquestionably destructive behavior.
But I do want to raise the question of whether, in the long run, using this doctrine in this way creates precedents that will ultimately make it easier for individuals -primarily young women - to exploit themselves in ways they will later come to regret. Admittedly, this is not an entirely new concept. Sex sells. That’s a basic fact of human nature. Advertising a product by associating it with an attractive model is Marketing 101. Thousands of people have pursued modeling as a career, and there is nothing inherently questionable about that.
What rights should modeling get someone? Arnold was no supermodel - people who, in today’s culture, are “celebrities” in every sense of the word. Rather, she had appeared in one, very local modeling show, as an extra in a music video, and as an exotic dancer. No one reading the magazine she sued over had any idea who she was; they only saw what she looked like. But the mere fact that she (and the plaintiffs in each of the other cases discussed above) was attractive enough to appear in a magazine (or video) gave her legally enforceable rights to profit from the publication of her image.
With that principle established, the right of publicity increasingly forms the basis of a reliable business model for any reasonably attractive person looking to “profit directly from their sex appeal.” And they don’t even have to go as far as Natalie Dylan did in selling her actual body; images will do just fine. The right of publicity has been in the news a lot lately, thanks to pop stars like Kim Kardashian and Lindsey Lohan, actors like Sandra Bullock, Julia Roberts, and George Clooney, and the estates of Tupac Shakur, Elvis, and Marilyn Monroe. Especially in the face of high youth unemployment and a sagging economy, how long until more young people start putting two and two together, like Natalie Dylan or the protagonists of The Full Monty did?
Of course, whether and how much this happens depends on a lot more than intellectual property laws. It’s a product of moral and ethical norms, societal attitudes, and much more. But having the legal mechanism in place to guarantee a profit may make it easier.
VIRTUAL ASSISTANTS AS INFRINGEMENT
Apple has Siri. Microsoft has Cortana. Google has the yet-to-be-anthropomorphized Voice Search. The Oscar-nominated film Her featured Samantha, while Ender Wiggins (in the sequels to Ender’s Game) had Jane. Vital to each iteration of the starship Enterprise was the Computer.
Futurists have long anticipated the day when humans could interact with computers using the same conversational speech we normally reserve for other people. In order to offer truly two-way interaction his type, however, the programs need to be able to respond in kind. In other words, they need to seem more human. The virtual assistants available as of this writing are beginning to approximate that experience. Siri has already reached its second generation, and some of its original creators are already at work on a next-generation competitor named “Viv” that is intended to be “blindingly smart,” “infinitely flexible,” “omnipresent,” and “embedded in a plethora of Internet-connected everyday objects.”207
But users and UX designers alike crave a more human-like interaction. AR will offer a unique avenue for achieving this goal by adding visual (and perhaps other sensory) elements to our digital companions. In the very near future, we will have available Siri-like assistants that we can actually see and communicate with face-to-face, via our digital eyewear. This sort of synthetic companion raises a variety of issues, some of which we will revisit in Chapters 7 (re personal safety) and 13 (re pornography). Here, however, I want to suggest that those designing virtual people will inevitably mimic real people, and that this will potentially infringe the publicity rights of their muses.
The simple case in this hypothetical is the company that offers the likenesses of recognizable celebrities as “skins” for a virtual assistant. (This is already beginning to happen; in November 2013, the company behind the crowdsourced navigation app
FIGURE 5.13
Olivia holding “Eve.”
Waze announced a deal with Universal Pictures to allow the app to give directions in a celebrity’s voice. The first such voice made available was that of comedian and actor Kevin Hart.208 209) That would amount to a commercial exploitation of an identity with defined monetary value, a straightforward infringement. But what if the real-life inspiration behind the program is less recognizable, the similarity is less than exact, or the imitation is unauthorized?
Vanna White and her alleged doppleganger.
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