Happy New Year!

The last issue of each year I devote to a look back and another forward. I also wish to thank the growing number of loyal readers who respond to my Useless But Compelling Facts—even when I am slow to send prizes; to those who ask questions, suggest topics and, yes, to those who send us legal work. To clients, colleagues, prospects, friends, Romans and countrymen, thank you for a terrific 2007. I wish you a green new year, a more peaceful millennium and a healthy joyous life filled with wonder and challenges in the years ahead.


2007 marks an interesting turning point in the “convergence” of advertising, technology and media, which not only became reality (virtual or otherwise), but also began being recognized. Mobile platforms began grabbing applications, social networking became news, user-generated content hit front pages of major news media. 2007 was the year full-motion interactive gaming consoles turned couch potatoes into willing living room exercise buffs; uploaded user-generated content sites barely noticeable three years ago sold for billions of dollars; interactive digital advertising agencies and technology platforms were being gobbled up by companies that want to be in your living room, not just run your business.

2007 was the year chip manufacturers moved into China, outsourcing continued to move into India, and everyone wanted to move out of the financial services sector. Virtually every major television network finally admitted online platforms were seriously important, and full length television programming invaded the Web, invaded mobile devices, and became downloadable as a core business activity. Social networks experimented with profiles, profiling, widgets, gadgets, RSS feeds, embeddable players, mobile interactivity; and, yes, even traditional television networks found SMS messaging as a tool to draw advertisers and viewer engagement. 2007 is the year mobile navigation tools allowed men to continue avoiding the need to ask spouses and significant others for directions, while the introduction of satellite video into automobiles transformed “Are we there yet?” into “I’m not getting out ’til the program is over.”

2007 brought us a flurry of online games, multinational promotions—contests and sweepstakes—spanning the globe and enchanting players around the world. Behavioral tracking and metrics became ok to talk about in polite company, even though not everyone is sure what they mean. 2007 was a time when virtual reality appears to have “matured”—can you believe it. A second generation of virtual reality sites are springing up, real world arguments are spawned, people are making real money in unreal worlds, and corporations and commercial enterprise have discovered (but not necessarily figured out) that virtual may mean cost-effective advertising and marketing. Motion pictures, product placement and branded entertainment were in the news. Reality shows looked like infomercials and commercials began to look more like entertainment. Product placements in programming began to resemble stock cars plastered with brand names and logos.

2007 also brought us legal rumblings. Regulators here and around the world concluded that advertising causes smoking, obesity, violence and promiscuity, and is rumored to have spawned a few lawyers. Lines between commercial speech and creative content are blurring and lawmakers worry increasingly about disclosure and boundaries that enable the consumer to tell the difference. The increase in user-generated uploaded content, social networks and mobile messaging networks have led to increased interest in privacy, intellectual property rights and behavioral marketing issues. Interactive, buzz, word of mouth, mobile and viral marketing are no longer tactics used by the far out—they are part of mainstream marketing. How do I know? There are trade associations that attract members and have conferences.

Virtual reality and interactive gaming are now accepted forms of entertainment, business opportunity and potential abuse. Lawsuits sprang up and regulatory pronouncements were made on such subjects as the matrimonial status of avatars, the infringement of virtual intellectual property rights, and even the question of deprivation of real property without due process—contracts, not the constitution, regulates virtual worlds. Digital technology has affected gaming, marketing to children is of on-going concern, and Internet gambling has been neutered in the United States through credit and banking regulation. People die of exhaustion in front of computer screens playing interactive games while others spend tens of thousands of dollars sending text messages to promotions, hoping to win prizes, fame and fortune. Regulators within countries and across borders are tripping over themselves because digital and mobile technology turn traditional regulatory boundaries upside down and inside out.

The financial marketplace was not immune to digital change in 2007 either. Gift cards have gone electronic—widening the market and spawning a host of new regulations concerning everything from escheat and dormancy fees to expiration dates and disclosures. Identity theft, data breaches and privacy issues, a recurring theme, now have technology to thank for new laws telling companies what to do when data about you is or might be compromised. Who can do what with your data continues to be a hot topic; heightened security concerns and increasingly brazen hackers continue to make people more willing to give up privacy in return for a safer environment. Speaking of security, disaster planning and recovery continue to weigh on corporate IT professionals, knowing the flow of information and distribution platforms built of electromagnetic waves are the lifeblood of businesses everywhere.


So where are we going in 2008?

  • Intelligent, quantifiable and entertaining wireless and mobile marketing are here.
  • Interactive, integrated online and offline gaming and advertising will discover each other. 
  • The living room will become a primary battleground for digital entertainment platforms—keep your scorecards handy, you’ll need them to figure out who is: a television network, a cable company, a computer company, a media and entertainment company, an Internet service provider, a wired or wireless telecommunications company.
  • Consolidation and aggressive digital focus will take place in the advertising agency and media business.
  • Motion pictures, television, gaming and merchandising will continue to blur.
  • Russia, India and China have money and labor pools—you know the rest.
  • Content—user-generated, creative, hybrid—will be king. Everyone will be digitizing everything: libraries, catalogs, music, film, books. On demand, downloadable, time-shift-able, portable and maybe share-able (see below).
  • Digital rights and intellectual property will make a comeback (see above). Better rights’ management, industry responsibility and accountability will take hold—bad guys will agree to become good guys; good guys will begin figuring out how to change the business models to monetize and exploit the new world of digital content.
  • Advertising revenue sharing will become the rage amongst non-traditional players.
  • Legal Bytes will arrive once a month, one page, hopefully holding your interest