Adam Feinsilver's Cyberlaw Tips - November 2007 Great Bad Publicity: Apple versus Factor 5 Publicity is Publicity We've all heard the saying "bad publicity is good publicity." Interesting theory. Well, bad publicity is controversial. Controversial gets your business's name out there. So, good or bad, publicity is good! Remember that great bad publicity Walt Disney World got from "groping Tigger"? Wasn't that fantastic? Maybe that's a poor example. How about when the press learned about Sony's rootkit CD-"protection" scheme/scandal? No, that doesn't seem to work either. Hmmm....Perhaps there's a flaw in this "bad publicity is good" theory. In the real tech-world, two high-profile tech companies just got a bit of bad publicity. One shows us how to turn bad publicity into good publicity. The other showed us how to take publicity that was already bad and make it abysmal (by throwing what appears to be a minor temper tantrum). Apple's Great Bad Publicity Let's start with the setting. I was behind my computer monitor with three tabs open: Gizmodo, Engadget, and Cali's live Geekbrief.tv broadcast. Steve Jobs was giving his September 5, 2007 "The Beat Goes On" keynote. Slowly, or so it seemed at the time, the announcements trickled in. Nano...iTouch...$200 price drop on the iPhone 8GB model and discontinuing the 4 GB model?!? What? A major price drop after only ten weeks? My first thought was that someone was just stirring up trouble in the Geekbrief comments. Then, I saw the same info on Gizmodo. This obviously was not going to go over lightly with recent iPhone purchasers (the accused "Apple-fanboys/fangirls"). The complaints started flying in. Macrumors had over 1,000 negative responses to the announcement. Of course, Macrumors typically would attract the technology "early-adopters," so the negative comments would be higher on Macrumors.com. Nonetheless, the exciting revamp of the iPod line, including the long-anticipated and rumored iTouch, got sidelined with news about the uproar in the Mac community. The next morning I saw the "that's technology" response from Steve Jobs when USA Today asked the CEO about his thoughts about iPhone owners who were outraged about the quick price drop. Understandably, the iPhone owners who rushed out, waited in lines, and took the chance on a brand new, untested product (a pricey one at that) felt sucker-punched. Who would ever rush out and buy a new Mac product on day one again? That morning, it occurred to me that $200 was probably a big enough drop to buy Apple some wiggle room. If Apple would give early adopters a $100 credit toward other Apple hardware (maybe computers), the problem would fade and Apple would look like a big hero. (I know, I know...it sounds ridiculous to say I had the idea now, but I really did!) Well, Apple went further and just made it an easy $100 credit to the Apple Store. The famous "Apology Letter to iPhone Owners" was sent out and the iPhone owners were happy. The news rang through the media. Everyone loves Steve again. It all appears in retrospect to have been incredibly well planned. Pre-planned, one might say. In the end, Apple released a ton of new products, made their iPhone more affordable (and a possible threat to other cell phone manufacturers) and made itself out to be the savior of consumer confidence. The newspapers ate it up. Free publicity. Tuesday's product announcements made it into newspapers on Wednesday and again, with the "apology" on Thursday. I'm willing to bet that even Donnie Deutsch got a kick out of that one! Factor 5 Someone other than Apple was facing bad publicity during the first week of September. Factor 5 has been on my "watch list" for a long time. When the small videogame developer released its first game (with Lucasarts), Star Wars: Rogue Squadron, for the Nintendo 64 in December 1998, it was spectacular. Nothing to date put the player in the Star Wars space battles as well. Then, when I compared the sequel for the Nintendo Gamecube to Starfighter on the XBox 360, I realized how special Factor 5 was. The artwork and the gameplay were far superior, despite the "less powerful" components that the developer had at its disposal in the Gamecube. The company worked hard on mastering its knowledge of the console that the game would run on. Factor 5 team members explained in interviews where other developers were falling short and where improvement was needed. The company demonstrated a true concern for the art of game design and implementation and the hope that other developers would deliver games of the same callibur as the Rogue Squadron II. The comany's newest product is Lair, a game where the player experiences flying on a dragon's back during battle. The game has been heralded by some as the game that will bring the (severely) market-challenged Playstation 3 into the limelight. Well, in a way, it has. The game has received dismal reviews, largely due to the inaccurate and unresponsive controls (we'll leave the discussion about motion-sensing controls for another time). Factor 5's reputation and the expectations for the game made the reviews perfect news-fodder. Despite the uphill battle, Factor 5, like Apple, had the opportunity to turn the negative publicity into a great marketing tool. Instead, the company appears to have taken the wrong prong of the fork in the road. MTV's GameFile reported on September 5th that the Factor 5 Lair development team is pointing fingers at Sony, reviewers, and even "ghosts" (problems that have supposedly plagued the development of the game from its inception). The team is reportedly claiming that the PS3 is difficult to develop for (the same was said of the super-successful Playstation 2 at the beginning of its life cycle). According to Lair's director, Julian Eggebrecht, reviewers generally are hard-core gamers who "have a hate for all things motion." The team claims that the motion controls are more suited to "casual players" and points to the Nintendo Wii, the early and strong leader in this generation's console sales, which is marketed based on its motion controls. Eggbrecht also discussed the difficulty in developing a good first generation title (early release) for a console. The finger pointing was reported in IGN, Aeropause, and other gaming sites. Knowing Your Consumer The Factor 5 debacle is a great lesson in turning bad publicity rotten and mis-reading your consumers. Videogamers generally are 1) techies and 2) finicky when it comes to gameplay (go figure). Excuses for a dragon that turns 2 seconds after turning the controls simply don't "fly." Factor 5 wanted Lair players to be forced into, and enjoy using, the motion-sensing control scheme. Bottomline-it didn't work. As a techie and and as counsel to tech clients, resolving the dispute seemed very clear. Turn the situation around. Make a patch available for download that offers a standard control scheme to players immediately and create a forum where Lair owners could suggest further improvements and extras that Factor 5 could later implement. Factor 5 would then be able to show its concern for its product and consumers by giving them both what they wanted and a voice, avoid ruffling feathers of reviewers (who will be waiting to rip into the next Factor 5 title), and avoid insulting its loyal consumers with excuses. While it amazes me that the game had to get into the hands of the reviewers for the excuses to start flying in the first place, Lair had so much hype that it could have used the attention resulting from the bad reviews to throw up its hands and say "the patch will be out in 2 days!" Working Your Publicity Factor 5 focused on the downside. Eggebrecht discussed the technical and personal problems that plagued Lair, quashing the perfect opportunity to focus on how the problem will be rectified. A move like this does not only create bad will and cause customers to hesitate before buying your product on the next go-round (as would have happened to Apple, had it not offered the $100 store credits to its loyal base), but also shows an irreverence for delivering what the customer wants. When you're lucky enough to have the hype, you have got to deliver the goods or take a hit on sales. Remember to think as a consumer before taking action. Consumers don't like excuses and finger pointing. You've got bad publicity, but it's free publicity. When you're business is at the center of attention, take advantage of the opportunity and turn it into a positive. Lastly, remember to tap into your team when bad publicity looms. Lawyers spend a good amount of time resolving bitter disputes. If your legal counsel has a good handle on your product, industry and your customer, you'll certainly have someone to look to for business advice when a little bad press starts flying around! ====================================================================================================================================== Disclaimer: The advice given in the TechLaw column should not be considered legal advice. This newsletter only provides general educational information. You must never rely upon the advice given here. Your individual situation may not fit the generalizations discussed. Only your attorney can evaluate your individual situation and give you advice. Except as provided below, you may feel free to forward, distribute and copy the TechLaw column if you distribute and copy it without any changes and you include all headers and other identifying information. You may not copy it to a website. Adam Feinsilver operates a Technology Law firm in Palm Beach, Florida. Practice areas include tech law, intellectual property, business law, and entertainment law. Mr. Feinsilver also provides product marketing consultation services to tech industry clients. He is also available to law firms as a legal consultant on technology-related legal matters. Mr. Feinsilver can be contacted via e-mail at adam@feinsilver.com or by calling the firm, Adam S. Feinsilver, Attorney at Law, at (561) 790-3857. Adam Feinsilver's Techlaw Tips may be duplicated and distributed in its entirety so long as no changes are made to the article, its headers or footers. Publication or posting to a Web Site requires permission. Copyright 2007 Adam S. Feinsilver