Create, Consult, Control
News & commentary on intellectual property issues.
Nov092009 | Steve O'Donnell
ReTweet for a chance to win and a chance for me to break a law
A typical Facebook or Twitter promotion is something like “become a fan (follow) and post this on your wall (ReTweet) for a chance to win something.” I get such requests almost daily and usually enter. Who doesn't like free stuff? If you're marketing your business online you've probably considered these sorts of promotions since they increase your pool of potential customers, but are they legal?
The answer to that question is far from clear. Such giveaways are dictated by state law, which means to be totally in the clear, you need to comply with the promotion laws of the whole US.
Although the language is often abused, most promotions fall into one of three categories: contests, sweepstakes and lotteries.
Contests require some skill or talent. Examples are American Idol and the bikini contest at your local bar; Sweepstakes are giveaways open to the public; lotteries require participants to provide some consideration to be entered (consideration is the lawyer term for providing some benefit to the other party, which itself, sounds like lawyer-speak, sorry). Generally, lotteries are highly regulated, while sweepstakes and contests are less regulated.
The possible problem with a “ReTweet” or “become a fan” promotion is that they require the participant to do something that benefits the promotor. Although it's not quite as obvious as requiring the purchase of a lottery ticket, it's still giving the promotor free advertising, which may make the promotion an illegal lottery.
Depending on how you look at it, the reason that lotteries are illegal are either protective of the state or protective of the people. On one hand, the state doesn't want to compete with other lotteries, on the other, the state is protecting its citizens from scam lotteries.
I know what you're thinking: “But Steve, Taco Bell and my church both run lotteries, why can't I?” In the case of a Taco Bell or similar promotion, they're really running a sweepstakes. Take a look at the official rules, there is always a way of obtaining a game piece without having to buy something. Since entry into those promotions is not based on the contestant providing consideration it's really a sweepstakes. Churches and other charitable organizations can often be cleared by the state to run a raffle.
In theory, a simple “ReTweet for a chance to win” post can subject you the the laws of all states, and possibly to the laws of all the countries of the world, which is probably a much deeper hole than you thought you were digging. Pragmatically speaking, the consideration given by becoming a fan of a Facebook page or ReTweeting a post is so small that it would take a very bored and motivated Attorney General to bring a case against you, but I know I wouldn't want to risk fighting a case in an out of state court if I could avoid it, and I imagine you don't want to either.
There are ways of lessening your possible exposure. Phrasing your promotion so it is either a sweepstakes or a contest is probably the best. Ways of doing that might include entering all fans (followers) that respond to a request for entries in a giveaway and asking them to please post on their wall (ReTweet), or choosing the winner based on the best slogan submission. You should also consider limiting the geographical reach of the promotion to lessen your exposure. These suggestions may not completely keep you in the clear, but they, or similar, should lessen your chance of getting into trouble.
Promotions of these types are very new and I'm not aware of any laws that specifically address them. In that case, being overly conservative is the best way of avoiding any problems.
This post, of course, does not address issues that exist with either the Facebook or Twitter terms of service, which may open up other cans of worms.
If you're running, or thinking of running an internet promotion, it's in your best interest to work with an attorney to make sure it's set up in a way to lessen your possible exposure.
Picture used under to the Creative Commons license.
Nov032009 | Steve O'Donnell
What exactly does *this* patent cover?
You might think that it would be easy to tell exactly what a patent covers, but that is far from the case.
Patents can be divided into a number of sections, but I think the most meaningful division is between “claims” and “everything else.” The claims are found at the end of a patent (or at the beginning, depending on where you’re viewing them online) and start with something like “we claim. . .” and then follow with one or more numbered paragraphs. A patent only covers what is claimed, but figuring out what is claimed can be a task in itself.
The rest of the patent is a support system for the claims. If a claim says something like “means for attachment of a first edge of a first panel and a second edge of a second panel” then somewhere in the rest of the patent has to be some explanation of what that means; claims typically make no sense on their own. That was the first draft of a clause claiming a zipper, and probably didn’t tell you much of anything on its own. If legalese is the confusing ramble that often flows from a lawyer, then patent claims can be some sort of steroid and espresso fueled legalese
If you have any question about whether something is patented or if you’re infringing a patent you really need to have a patent attorney analyze the patent and draft an opinion letter for you. Unfortunately, you can never be 100% sure what a patent covers until a court tells you what the terms mean, but an opinion letter from your attorney can go a long way in keeping you in the clear.
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Comments
Andrew
Thanks also for including the fact that some folks may get away with a technical violation of the law if the enforcement agencies don't bother with them. Of course, if enforcing this provision becomes a fad among state attorneys general - perhaps a scandal ignites a law-and-order crusade against illegal promotions? - then who knows?
Finally, for anyone who reads this far, please be aware that Facebook itself has new rules about how promotions can be run on their site, and violations of the rule can (if enforced, naturally) lead to a loss of business and personal (administrator) Facebook accounts. I posted a few possible workarounds for smaller businesses to my blog at http://manydoors.net/2009/11/10/promoting-a-contest-on-facebook-heads-up-new-rules/ for your consideration if you are concerned about how this might affect you or any of your clients.
But I have a question. A lot of contests are open to members only of a website. For example, a site where you can upload your funniest pet photos (off the top of my head, lol) but are required to register to be member of the site. Is this a problem? IS this considered part of a "conditioned entry" if it's only open to members of a particular website community?
Thanks!
I can't give specific legal advice in this forum, but all sweepstakes are open to only certain groups of people, it would be impractical to throw the names of everyone in the world into a (very big) hat. Every sweepstakes I've seen has some free way of entering: you don't have to buy the product to get a game piece, you can just send in a postcard. It still requires the participant to do something, but the promotor doesn't gain anything by receiving a bunch of postcards. Consider that in your pet photo hypothetical.