Tag: Legal

What’s in a Name?

Buying domain names of real live people can be manna to the unscrupulous.

Anne Fognano is not a newbie in the online marketing world. She has run a successful affiliate business since 1997. She’s the force behind CleverMoms.com and has registered a raft of variations on the "clever moms" domain name to safeguard her valuable brand. But she never bought the domain for her own name – AnneFognano.com. When someone else did, all hell broke loose.

While domain squatting is as old as the Internet itself, the practice of buying a dot-com name and waiting for someone with a bag of cash to offer to buy it from you has lost some of its cachet – especially since pretty much all the good common names and brand names are taken these days.

However, this hasn’t stopped some folks from getting creative. Many call it "domain extortion," where someone buys your name, sets up a rudimentary Web page of you with dummy copy and then contacts you to sell you services such as Web design, hosting and other services for bloggers. This is what exactly what happened to Fognano.

"Not much I can do about it," she says, "because I don’t have my name trademarked." Since she is not a "public figure" like George Clooney or Paris Hilton, it makes it harder to make a case that her image has been co-opted for monetary gain. The FBI and her local District Attorney’s office in Virginia told her that unless she could prove that someone was looking to profit from her name, they could do little. Besides, they told her, the payout would be so little that it wasn’t worth the authorities’ time.

Domain parking in general is fairly big business, thanks in part to the popularity of PPC programs. Anyone can buy a domain that is either a name someone may type into the address bar or is a misspelling of a brand name (called typosquatting) and put nothing but Yahoo or Google PPC ads on the sites. The ads on these types of sites actually generated $400 million in sales in 2006, according to Susquehanna Financial Group, and looks to hit the $1 billion mark by the end of 2007.

Updated Version of Cybersquatting

In the domain extortion variation, someone grabs a name of a living person who has a blog or is an affiliate marketer for as low as $6 or $8 per name through an inexpensive domain registry such as GoDaddy.com. If the person that bought the domain offers to sell services to the namesake on top of giving them back their name, there’s nothing illegal that’s been done, according to authorities. In addition, the person who registered your name generally gets more than his $8 if you decide to at least take your name back.

In Fognano’s case, she decided to fight back. Going to the popular online forum for affiliates, ABestWeb.com, she posted her dilemma and let the members know that a "blog consultant, John Kitovitsu" of PurchaseMyBlog.com emailed her to show her what using his services would look like and that she could buy the domain from him. ABestWeb members, a large, vocal and tight knit community of savvy online marketers, suggested sending him a "cease and desist" letter to remove the content, which include her image and an article taken from Revenue magazine. They also suggested bringing him up before the Internet Corporation for Assigned Names and Numbers (ICANN) and even paying him a personal visit. ABestWebbers also helped her document all the text and images on the fake site and tracked down the IP address for the hosting company serving up the site. They also determined there was no business active on the Web using the PurchaseMyBlog name.

Not a Crime?

Fognano called the local police, the FBI, her local District Attorney and even the dubious website’s hosting company (in Germany). Since "Kitovitsu" had also set up a WordPress blog page for her without her permission, she got WordPress to pull down the page for violation of their terms of service. Fognano said the FBI pulled the site for her and said it would put an "FBI investigation tag" on the website. "I actually didn’t care that much," she said. "How many people are going to type my name [directly into the address bar]? But only when they use my name and image is it a big deal."

Thus far, the authorities she contacted are not calling this a crime. New York State recently signed a law providing a $1,000 fine per day for violation of people registering domain names of known people purely to sell them their own names for profit. The law goes into effect in early 2008. While it is not known if other states will follow suit, the terms may be just vague enough not to quash the practice entirely.

"It’s almost like they are taking your identity," Fognano says. "It seemed strange that it isn’t a crime."

Domain name registrars say they can only do so much. In 1999, the Ninth Circuit Court of Appeals ruled that registrars, such as Network Solutions, could not be held liable for registering a domain of a "known trademark." Network Solutions – which used to be the exclusive registrars of domain names in the U.S., says it used to purge "domain speculators" from its registry, especially those who registered thousands of domain names at a time. But it adds that most domain names can only be reclaimed if those who registered the names do not pay on time.

After inquiries were made, Fognano heard again from "Kitovitsu." "It’s not our intention to pose as you or use your blog for material gain," the email said. "If you decide to join our network we can have a professionally designed template made to enhance the look and feel of your blog."

"Oh, I see. It was a sales pitch," said a poster on her thread at ABestWeb. Another poster wrote that it sounded like "a scam with a bit of extortion thrown in."

Registrars and Revenue

Now that lower-cost domain name registering companies such as GoDaddy.com have entered the field, the competition for registration fees is much greater. There are hundreds of accredited registrar companies internationally that deal in the more popular .com, .net, .biz, .org, .edu and .mobi top-level domains. A new domain is registered at GoDaddy.com every 1.3 seconds, the company says. That figure comes to 12.8 million domain names every five months, according to Netcraft, up from 7.5 million in a five-month time frame last year.

Selling parked domains is also still big business. Business.com famously sold in 1999 for $7.5 million. Sex.com changed hands last year for a reported $14 million, although some reports said it was more like $11 million. Domain name sales generated $29 million in 2005, according to Zetetic. Some are just in it for the names. NameMedia, for example, apparently has more than 750,000 domain names in its marketplace. Sedo.com also acts as a kind of eBay for the domain space, selling $3 million worth of domain names per month.

"A domain name isn’t something you own, it’s just something you have a right to use," says Elizabeth Beal, director of the Communications Law Centre at Victoria University in Canada. "So it’s not like [a cybersquatter] has been using somebody else’s property."

In this age of security, some companies are enhancing their products and discovering revenue streams in the process. Retail domain name registrar Dotser offers "domain name security" with its NameSafe and TransferLock products. NameSafe restricts actions such as account updates, name server updates, contact name changes, domain account changes and registrar transfers without prior authorization through email. They charge a small annual fee for the service. Its TransferLock prevents domain name transfers without being logged in to your account. This service is free. Dotser itself, however, was named in a typosquatting lawsuit by retailers Neiman Marcus and Bergdorf Goodman a few years ago, saying that Dotster put up ad-filled pages in misspelled domains of the retailer’s name and then only paid to keep the misspelled URLs that were generating any revenue. This is called domain kiting.

Some critics also charge that the extra fee-based services don’t prevent someone from snapping up your domain if the registrar goes bankrupt or registers a taken name by accident or if the registrar deletes your domain through a process error. That’s what happened to Gary Kremen when Network Solutions was conned into giving up his Sex.com domain – a destination that was reportedly earning him $8 million per year. It took him three years to get the name back, but he was pretty much bankrupt by then.

Because of the competition between retail registrars, it isn’t surprising that companies are trying to entice you to add services or register more versions of a domain than you may need. One variation on the hard sell is getting a fax from a "domain name monitoring" organization stating that someone was registering the dot-net version of a dot-com domain name you owned. Saying they were checking on possible trademark conflicts on domains they have registered, the company offers to register the dot-net domain for you instead. Sometimes the materials are marked "final notice" with that day’s date as the deadline.

Lapses and Losses

Members of ABestWeb also suggested Fognano file a complaint with ICANN. You can make a case and request the domain be transferred to you. In most cases, when you register a domain, you are also agreeing to mandatory arbitration. Arbitrations through ICANN can also be far less expensive than litigation, and the judgments through arbitration can be quicker – about 60 days. While ICANN recognizes the need to keep the processes for transferring domain names tight, it is well aware of the chorus of complaints from those hijacked or extorted. "The registrant may lose an established identity and be exposed to extortion by name speculators," ICANN has stated. "Domain hijacking can disrupt or severely impact the business and operations of a registrant."

Generally there is a process by which a domain name can fall back into the unregistered pool to be snatched up by any attentive domain buyer. You register YourName.com on a given date: 1/11/06. The domain expires on 1/11/07. There happens to be a 30-day grace period to allow for renewal of the domain for the standard renewal price (until about 2/11/07). If that date passes, the domain is tagged as in a "redemption grace period," during which time the domain is put in "registrar hold" and then "pending delete" – about 30 to 45 days, depending on the registrar.

ICANN allows the registrar to charge its own fee for renewal from then on, which could go as high as $160. GoDaddy charges $80 and Network Solutions charges $160. If those fees aren’t paid, the domain name is released into the pool to be bought by anyone.
Rich Miller, blogger at DomainWorks.com, says to treat your domain as a brand. Network Solutions agrees – that domains left to expire run the risk of being co-opted by anyone, it says. Miller says that you should register your domain for more than one year. This way it’s actually cheaper to register and you won’t have to remember to do it every year. There are some who say that domains that have been registered and active for a while get better Google page rankings.

Miller also suggests that you should look for the best registrar, not just the cheapest. Look up the reputation of the registrar. You may not see a difference in the features of a registrar who charges $30 versus $9, but you will see a big difference between the $9 and the $5 registrar. He always recommends registering "alternates" of your name in other top-level domains. If you own the .net but not the .com, the .com owner can trademark their name and potentially force you to give yours up. Also, he says, don’t forget to brand your name within the social networks – set up pages in MySpace and other destinations before someone else does.

And whatever brand name you are operating under, always remember to try to buy your own name as a domain. Recently, Fognano decided she would offer "Kitovitsu" $10 to buy her domain from him. She has yet to hear back from him.

Blurring the Lines

Recently, I posed my question to a diverse audience: “At your company, who is in charge of social media marketing? Raise your hand if it’s the marketing group.” A few hands went up. “The public relations team?” A few hands again. “Market research?” Once again, only a smattering of hands was raised. “So I guess most of you aren’t using social media at all?” I suggested. “Must be your lawyers are in charge.” That struck a chord. Laughter all round.

So, who’s in charge of social media marketing at your company? At many companies, no one’s in charge because the legal team is still assessing the risk. The first thing to do is to fi nd an appropriate executive to accept the risk. That tells the legal team that you’ve heard their advice but that you believe the business value of social media outweighs the downside. But who is that appropriate executive?

It’s Marketing

It seems obvious. If it’s social media marketing, shouldn’t you put the marketing folks in charge?

Perhaps, but whether that’s a smart decision depends on what kind of marketing people you have. Traditional brand marketers steeped in television advertising might struggle a bit with social media marketing. Word-of-mouth marketing has migrated online to be christened viral marketing, but most marketers have never lifted a finger to get customers to talk to other customers. Marketers accustomed to paying for advertised messages might be shocked at how much harder it is to foment word of mouth.

Social media marketing depends on your customers wanting to tell other customers something good about your product or service. What you’ve been paying media outlets to say about you won’t cut it. You need a message that is interesting, entertaining, appealing, and just plain hard to keep quiet about.

It’s rare that trained marketers pull this off. As discussed in my last column, Blendtec launched a terrific viral marketing video series, obliterating iPods and other unlikely objects in its blenders. But it was not a marketing plan that started the series – grinding up weird stuff was part of their product testing.

Marketers who’ve grown up screaming, “Act now and get, free, an ice crusher!” doubtless have little chance of getting their messages listened to, much less passed on.

It’s Public Relations

So, if not marketers, then should it be public relations? Or Corporate Communications, as they so often like to be known nowadays? Good reasons exist for such a decision.

PR folks have long faced the problem of enticing others to pass along their messages. PR people have spent their careers talking editors, producers, and reporters into covering their “news” and getting customers to pass along a story seems like a similar challenge.

Moreover, social media requires listening, not just talking, which any good publicist knows how to do. Tracking what’s being said about your company in cyberspace is just as important as in mainstream media. Someone who knows how to respond to a media crisis has valuable skills that can be employed when the blogosphere and message boards light up over some issue.

But PR people have limitations, too. For one thing, they tend to respond to a problematic press story based on how much influence the source possesses. They burn the midnight oil when the New York Times prints something, but don’t break a sweat when it’s the Picayune Press. That approach works fi ne for mainstream media, but it’s harder to judge the effect of a customer’s opinion in the social media space.

A public relations professional might not be the best person to assess its influence.

It’s Market Research

So, who could gauge the importance of a customer’s opinion? Perhaps market researchers, because they have spent their lives understanding customer feedback – divining the importance of opinions based on prevalence.

Market researchers use focus groups, surveys, and other techniques to tease statistical signifi cance from the noise of customer feedback. They collate the information and analyze it so that your company can take action. Surely that’s the right kind of experience, yes?

Well, maybe not. After all, market researchers are great at listening but not terribly experienced with sending messages. They don’t know how to convince an audience, preferring to find out what the audience thinks without contaminating their opinions. Marketing depends on getting customers to buy what you are selling, which requires some persuasive powers.

It Requires Cooperation

So, we’re back to where we started. Social media marketing requires the persuasiveness of a marketer, the media savvy of a PR pro, and the listening ability of a market researcher, all rolled into one. Now, maybe you’ve got someone like that lying around at your company, but I’d call that a long shot. What can you do instead?

Break down the walls. It’s not easy, but social media marketing, like many types of Internet marketing, require that you abandon the traditional barriers that cordon off each profession from one another.

Perhaps you need your market research people to learn to use reputation monitoring technology to listen to the Internet conversation about your company. They can use their well-honed analytics expertise to assess the meaning and importance of what your customers are saying.

Then you need your communications people to step in. Some of that Internet chatter might be coming from blogs – your PR folks can help you treat them like press. But they can also use their experience to concoct the kinds of messages that customers will pass along.

Your marketing team can work with the market researchers to understand what kinds of stories might persuade your target markets, and your PR folks can help design them. In fact, IBM has just reorganized all three teams under the same executive – more companies might take that same approach.

Now, will having your teams work together solve all your social media challenges? Of course not. Even the best teamwork will leave you with normal challenges of crafting appealing social media campaigns. But at least you’ll have every possible person working together to do so.

Taxing Issues

“I love NY” may be the famous motto of the Big Apple, but as of late, it’s not the mantra of any New York-based affiliates.

That’s because in April New York Governor David Paterson (D-NY) signed into law the state’s 2008 – 2009 fiscal year budget that included a provision – initiated last fall by former NY governor Eliot Spitzer – requiring out-of-state Internet retailers to collect sales tax on deliveries made into New York, based solely on a link to a marketer’s website.Called the New York Internet Sales Tax, the law went into effect on June 1, 2008 and is expected to raise $50 million in revenue each year for the state of New York.

The new regulation is causing consternation among the community of online marketers and affiliates. Because the tax laws are complicated and it’s still unclear about the full implications of the New York State Internet Sales tax, many skittish merchants are opting to drop all their New York-based affiliates in an effort to avoid any hassles and taxes. Most U.S. states already require online retailers to collect sales tax if they have a physical presence in the state that the customer is from – it is called nexus. Therefore, if an online retailer has a physical store in New York, or even an office or warehouse, they must collect sales tax from a customer in New York.

However, this new law is broadening the scope of that to say that a business having any affiliate presence in the state of New York is akin to having “an agent or a representative,”thus establishing a physical presence or nexus in New York, which requires taxation.

Merchant Confusion

Prior to the law going into effect, Amazon immediately filed a lawsuit against the State of New York. The online retailer claims the new rules violate the equal protection clause of the constitution because it specifically targets Amazon. “It was carefully crafted to increase state tax revenues by forcing Amazon to collect sales and use taxes,” the complaint says, noting that “state officials have described the statute as the ‘Amazon Tax.'”

Other merchants simply deactivated their affiliates based in New York – many without notice or explanation. Melanie Seery, a New York affiliate, was so outraged by being dropped by merchants that in June she started a blog called NYAffiliateVoice.com to speak out about the taxation issue and its implications for affiliates.

Overstock, which has a large affiliate program that brings in over $100 million annually, was among the first wave of high-profile merchants to unceremoniously drop its NY-based affiliates.

“We had to drop the affiliates because of the risk of not collecting the affiliate tax and then someday having New York win,” Patrick Byrne, CEO, Overstock.com, says. “We would get dinged for that. So we had to drop the affiliates immediately.”

However, Overstock did a quick turnaround and less than a month after deactivating affiliates; they followed Amazon’s lead by filing a suit against New York State.

According Byrne, the Supreme Court has previously ruled – as it related to catalog retailers – that the burden of collecting taxes cannot be put on the out-of-state retailer. “Therefore, I think New York’s law is directly unconstitutional,” Byrne says. “We’re not suing the state for any money. We’re suing to enjoin them from ever acting upon this law, and we’re trying to get the Court to throw out the law.”

He says that decision to seek an injunction is the right, long-term thing to do and that Overstock is putting hundreds of thousands of dollars into this lawsuit. Byrne has suggested that affiliates write a letter to their state legislators claiming that such grassroots campaigns can really make a difference.

Affiliates Take a Stand

That’s what the large community of vocal affiliates on ABestWeb.com is aiming for. Many affiliates at ABW are getting together in New York to examine the issue. At the meeting, to be held on July 28 (after press time), they will discuss the tax issue and talk about obtaining legal services to help better understand the issue and the potential recourses for affiliates. Several ABW affiliates are also participating in a special panel session at the Affiliate Summit East in Boston in mid-August to discuss the issue.

And it’s not just affiliates in New York that are watching this closely. Both affiliates and merchants are concerned that large states seeking to generate additional revenue by collecting similar taxes may follow if New York is successful.

“We just think it’s a bad idea for New York. Additionally, other jurisdictions are going to watch us fight this in New York. Based on how it plays out in the Courts there, they’ll then decide whether or not to go ahead with it as well,” Byrne says.

Affiliate Scott Jangro, CEO of MechMedia, based in Massachusetts, recently gave $250 to a group of New York affiliates to help cover the costs of meeting and legal services.

“I’m not from NY, but these guys are taking it on the chin for the rest of us,” Jangro wrote on his blog. “There’s a lot of money in this industry and I hope that many of us will consider helping out.” You can donate at NYAffiliateVoice.com.

Currently, two Technical Service Bulletins (TSB) related to the law have been released. The latest was issued on the June 30, 2008. The TSB, titled” Additional Information on How Sellers May Rebut the New Presumption Applicable to the Definition of Sales Tax Vendor as Described in TSB-M 08(3)S,” imposes additional requirements that a remote seller must satisfy to rebut the presumption of “vendor” status.

It is no longer sufficient for merchants and networks simply changes the terminology of their contracts with affiliates to include explicate language barring them from activities other than direct linking to websites, according to the Direct Marketing Association’s (DMA) Tax Counsel George Isaacson.

The new TSB says that “each resident representative must submit to the seller, on an annual basis, a signed certification stating that the resident has not engaged in any prohibited solicitation activities in New York State, as described above, at any time during the previous year.”

These activities are listed in the TSB as “distributing flyers, coupons,newsletters, and other printed materials or electronic equivalents; verbal solicitation (e.g., in-personal referrals); initiating telephone calls and sending emails.”

The prior TSB noted that direct marketers could defeat the presumption of nexus if that marketer is not engaged in other solicitation activity on behalf of a company beyond a Web link. “A pure vanilla affiliate marketing arrangement” with only a referral link will be sufficient to defeat the presumption of nexus. Many suggested that networks and vendors simply changed their terms and conditions to reflect this.

Observers say that PPC marketing will not give rise to the presumption of nexus because it is a set fee based on the number of clicks, therefore, falling under the heading of advertising, which is not subject to taxation. Lead generation activities appear to be closer to the definition of advertising under the new law and would not be subject to nexus.

The Networks

Thus far, the networks have mostly been mum – issuing only basic information about the law and instead advising their merchants to seek legal counsel to sort things out. LinkShare held a conference call in conjunction with the DMA to have the DMA’s legal team interpret the regulations. Commission Junction issued a notice to its affiliates, “We are actively monitoring the law and will use reasonable efforts to protect ourselves and our publishers as we deem appropriate. The application of the law is dependent on particular business and factual circumstances, and Commission Junction is not in a position to provide legal and tax advice regarding this law. However, we encourage you to perform the appropriate due diligence as it relates to your business.”

However, ShareASale President and CEO Brian Littleton wrote a little more in depth in his blog, “our first response to this will be to provide this report which will allow merchants to know where they stand regarding the law. Our plan at this time is to treat any case where a merchant wishes to terminate NY affiliates with great care and caution. If a merchant requests to do this, there is little we can do to stop them – but ShareASale will be performing the task so that merchants aren’t accessing information which traditionally is considered private within the network.”

Littleton went on to say, “There is a chance that this plan will not work. My hope is that we can warn merchants that terminating NY is a bad plan – and one that needs rethinking. If our plan doesn’t work – and we end up needing to provide more information to merchants, we may end up having to do so. I say this as a heads up to affiliates because while we don’t like to give out info, we also don’t want to put merchants in a place that makes it difficult to adhere to the laws of their state or others.

We can’t offer legal advice to merchants and/or affiliates regarding these laws. But I can offer my extreme dissatisfaction with the State of NY for their short term thinking and complete disregard for their citizens. I am personally confident that this will all be reversed and I am hopeful that for those affiliates in NY – it comes sooner rather than later.”

Meanwhile, it’s a game of wait-and-see for affiliates and merchants as the legal wheels slowly turn. Many observers say it will be a while before we find out if this law is declared unconstitutional or is upheld and other states begin adopting similar regulations as a means of generating state revenue.

Poaching Prohibited

What’s in a name? According to Shakespeare’s Juliet, not much, but if the name is trademarked it has value worth protecting. Successful companies spend millions developing a brand name and promoting their Web domains online. Some publishers, however, treat others’ trademarks like their personal ATMs by generating commissions through misleading ads.

This practice has become alarmingly present during the past few years and is often referred to by a variety of names: trademark poaching, trademark bidding, domain name poaching and PPC domain name bidding. Kellie Stevens, president of Affiliate-FairPlay.com, says it’s a difficult issue to discuss because the terminology is still not clearly defined or even completely understood.

Some in the industry say it’s actually misleading to call it trademark poaching or trademark bidding. Instead they refer to it as PPC domain name poaching because it’s really a subset of a merchant’s trademark-type words, namely their domain name. Some industry watchers say that using the phrase “trademark poaching” or “trademark bidding” has connotations of it being a legal issue under existing trademark law, but it is really a violation of the terms of services contract between the merchant and the affiliate.

Regardless of the various terminology (which is often used interchangeably), in its most conservative definition, this practice involves a keyword search on a trademarked term or the merchant’s domain name that triggers a pay-per-click ad. The ads use a merchant’s trademark in the copy, and through clever coding, the display URL appears to consumers to be from the merchant.

The way it works is that consumers type an address in places other than the URL bar – such as the desktop Google bar or into their favorite search engine – and are taken to the merchant’s site or an affiliate site via an affiliate link, thus giving an affiliate a commission when none is deserved.

The basis that this commission is unwarranted is the idea that if a consumer types in a merchant’s URL or domain address, it is clear they were seeking that merchant and the affiliate provided no added value in getting the potential buyer to that destination. Therefore, the affiliate should not be compensated.

The origin of today’s trademark poaching problem dates back to 2004, when Google changed its AdWords policy to allow keyword bidding on trademarks and associated Web domains. Cunning individuals began joining affiliate programs and designing PPC ads to appear to come from a well-known merchant. When clicked on, the ad directs the consumer to the trademark owner’s site through a link that inserted the affiliate ID, therefore generating a commission for any resulting purchase. Voilà! No website is required – the ad creates a straight path to easy commissions.

WHY IT’S ATTRACTIVE

Trademark poaching is attractive because of the low barrier to entry. For just the price of a PPC ad, publishers can quickly generate handsome commissions without the usual affiliate administration overhead, and reducing the steps from click to purchase increases the likelihood of a purchase.

One PPC affiliate, who asked not to be named, says there is a “pack of about 30” PPC affiliates that closely monitor the list of new merchants at every network and “crank up campaigns on them all” in order to profit from this behavior.

The anonymous PPC affiliate says “it takes less than four minutes to create a new campaign for a new merchant,” and that this pack of rogue PPC affiliates “don’t read the terms of service” from the merchants and they “don’t care about size – they cover them all.” He says it’s like a competition among this “pack” and that they do this for hundreds of merchants.

“There’s a trickle of others trying it from time to time as well, but the way Google and most search engines work, historical performance and clickthrough rates determine who gets the spots. They’re all competing for the one spot that lands on the merchant’s domain,” the PPC affiliate explains.

He went on to note, “That’s a ton of commissions paid out for almost nothing. If a merchant can easily do this PPC themselves, why pay an affiliate a large percent commission for doing it? It’s the branded traffic the merchant has earned; giving it away to a lazy poaching affiliate is just ignorant.”

Scott Hazard, who runs the website Cooperative- Affiliates.com, says ads that mask their origin in this manner confuse the marketplace and take money away from the merchant and the affiliate channel.

“It’s more of a problem for big brands” with recognizable names, Hazard says, as the popularity of the name as a search term will generate the high volume of traffic needed to create sizable commissions.

However, another school of thought says that although big brand merchants are often targeted more – thus losing more money overall – it’s a problem for merchants of all sizes. In fact, many smaller merchants are less aware of the issue and how to police it, making them easy marks.

While determining exactly how widespread this practice has become is difficult since it’s hard to track throughout the entire industry, a PPC consultant, who asked to remain anonymous, says, that “in some smaller programs I have worked with, as a merchant consultant and/or as a PPC consultant, as much as 40 percent of their registered affiliate sales are coming from this poaching.”

The only penalties for being caught poaching is getting kicked out of an affiliate program and having your commission withheld. That’s a small price to pay compared with the upside of undetected revenue. (See the “Trademark Ads in Legal Limbo” sidebar on page 048″ for details on other potential penalties.) Trademark poaching challenges merchants because as quickly as affiliates are kicked off, others are ready to take their places, according to Hazard.

Hazard launched the website TrademarkPoachers.com in August of 2007 to provide advice and education about the practice. While his site has increased awareness of the problem, “It doesn’t seem to be happening any less,” he says. Some say that they have anecdotal evidence that nearly 50 percent of pay per click is based on trademark poaching.

Chuck Hamrick, an affiliate manager for AffiliateCrew.com, started noticing trademark poaching in mid-2006. He could see that it was impacting overall revenue for some merchants because after he removed the poachers, the affiliate channel earnings went down, while organic and paid search revenue increased by larger amounts. This showed that trademark poaching “was cannibalizing our other efforts,” he says.

In the last two years, Hamrick caught a number of well-known affiliates poaching. He gave them “two strikes and they were out” of the program. If they didn’t take down the offending ads, he would reverse their commissions. “If it happened again, it was not by accident,” he says.

TRACKING THE POACHERS

Still, merchants that do not protect their trademarks from poachers are like retailers that allow customers to walk out with the price tags still on the clothes – if you’re looking the other way, someone will inevitably take advantage of you. Although networks can help with detection, it is the affiliate manager’s responsibility to function as the security guard and prevent these losses.

Fortunately for merchants, tracking this nefarious activity is relatively simple. Reviewing commission reports is one effective method for identifying trademark poachers. High conversion rates or affiliates who rise too quickly in volume of referrals are signs of potential trademark poaching, according to Dave Osman, senior vice president of operations at Commission Junction. “[Trademark policing] is one of the biggest challenges that the affiliate channel has had,” Osman says.

Managers can bid on their trademarks through Google AdWords to see the affiliates that are also bidding as another method of identifying potential poachers. Checking data for the location and time of day where commissions are generated can also help to identify poachers. To head off potential poachers, merchants can specify with AdWords that bidding not be allowed on their trademark or the trademark as part of their domain name.

Google will take down ads from affiliates or competitors that include domain names or URLs if the trademark holder complains, according to the policy stated on the AdWords website. However, Google will not block keyword bidding on trademarks and will not otherwise mediate disagreements over trademark poaching.

THE CASE FOR AND AGAINST

However, there are some merchants that will ask their PPC affiliates to do trademark bidding. AffiliateFairPlay’s Stevens says that there are pros and cons to this tack and merchants that allow it employ the rationale that they would prefer to see their affiliates ranking higher in the search engines than their rivals.

However, these merchants often fall into two categories – those that understand the issue and allow it to happen; and those merchants that are not aware of the implications.

When a merchant understands it and still allows domain name bidding, it’s usually because the affiliate manager can make themselves look good to superiors by showing lots of sales; or the merchant wants to inflate their EPC and sales volume to make their program’s metrics look attractive; or the merchant has made a deal with someone – such as a legitimate consultant – who in exchange for the sweet, low-hanging domain name fruit, obligates themselves to do something else, like pump those margins into deeper product and general keyword PPC on the merchant’s behalf, according to a PPC expert.

For those who don’t completely understand the issue, the reasons to allow it are slightly different: The merchant believes these posted sales are the result of “power” affiliates’ magic and doesn’t understand they’re allowing their brand, via their site name, to be leveraged by someone who does only that; or they have no idea what’s happening and believe these are actually their best affiliates; or someone such as a PPC agency or an outsourced program manager has them hoodwinked into believing this is a good practice.

However, there are instances when this type of bidding can be helpful, according to some PPC experts.

If a merchant has chosen to have coupons, then a search for “merchantname coupons” will be filled with SEO coupon affiliates ready to meet that need in the engine’s natural organic listings. The same principle works for reviews of merchants’ product or services. Most often, consumers seeking reviews don’t want to visit a merchant’s site. Instead, they want a supposedly unbiased view. Therefore, allowing an affiliate to bid on MerchantNameReview.com might be desirable to the merchant.

The Big Decision

One search expert, who asked not to be named, says there are two questions a merchant must ask before making the decision on domain name bidding.

No. 1: Do I allow my affiliates to bid on “MerchantName.com” where they send people directly to MY MERCHANT website and where they earn a commission?

No. 2: Do I allow my affiliates to bid on “MerchantName.com” where they send people directly to THEIR AFFILIATE website and where they earn a commission if someone clicks through to my merchant site from their affiliate site?

Most observers say the answer to the first question, should be – “No way, this is the merchant’s traffic and they earned it. It’s fat with ROI (often a 19x return) and it’s theirs.”

On the second question, the answer is not as clear. Allowing affiliates to do this might keep competitors from squatting on the name with their PPC ads. Search engines could see the merchant’s ads as more relevant because the domain name is the same word as the keyword, meaning that the merchant should be able to still occupy the top search spots with ease.

The Role of the Networks

Networks including Commission Junction offer trademark policing as a value-added service, and specialist companies such as Trademark Tracker and Name Protect can search out poaching ads as part of their broader trademark protection services.

While the industry is in agreement that trademark poaching is unacceptable, there is little consensus on related trademark use by affiliates in their advertising efforts. From keyword bidding on trademarks to the use of trademarks in ad copy, merchants, ad networks and affiliate networks each have their own rules and perspectives on what is permissible, and often those vary depending on individual contractual relationships.

“Ultimately, trademark poaching is in the eye of the beholder,” says CJ’s Osman. “The burden is on [affiliates] to learn each of their [merchants’] rules and to receive permission before incorporating trademarks into their ads.”

Buying a trademark as a keyword in conjunction with other words, such as “iPod and covers” is often allowed or encouraged because search engines do not want to exclude “broad match” terms. With the permission of the trademark owner, trademarks are also permitted as part of the affiliate’s display URL (e.g., www.affiliatesite.com/coupons or /reviews).

Through statistical data and the ability to observe dozens or hundreds of merchants at the same time, the networks have the power to stop this practice, but some think they don’t go far enough in their efforts.

“Good networks will show the referral URLs to the merchant, making it easy to find these poachers if they look, and reverse their orders [don’t pay them] and remove them from their affiliate program for violating the rules,” one PPC expert says.

According to one PPC consultant, who asked not to be named, the networks don’t ban this bogus practice for a variety of reasons – all related to money:

  • Merchants who want to shine their metrics (and show their bosses how well their programs are running) would go to another network.
  • Unscrupulous OPMs (outsourced program managers) would suggest alternative networks for new clients.
  • Unscrupulous OPMs would migrate programs to other networks, and when the reported sales went up, they’d be proven “right” about suggesting the migration.
  • Some merchants would not be able to make deals with their PPC consultants or agencies, and a new network that allowed this practice would be the only alternative.
  • Many less-than-savvy merchants would accuse the network of firing their “best” affiliates.

Because merchants have a right to run their own program, networks don’t and shouldn’t take an all-encompassing stance against it, the PPC consultant says.

Commission Junction’s policy is not to allow the use of trademarks in third-party ads without the express permission of a merchant, according to Osman. The rules that each merchant sets depend on their individual objectives, with some opting to be more flexible in allowing trademark use, he says. “All [merchants] do not view their [affiliates’] use of their trademarks in the same light: They have different marketing needs and therefore make allowances when necessary. For this reason Osman says, “I don’t think consistency [across the industry] is possible.”

Affiliates bidding on a domain name and sending the traffic to their own sites is seen by some but not all in the industry as trademark abuse. “One type of trademark poaching – typo squatting – is the intentional use of a misspelling of the trademarked URL, and is considered trademark infringement by most marketers,” says Osman. In recent years, companies Dell and Lands’ End successfully sued affiliates for generating commissions through typo squatting and direct linking.

Merchants can best protect their trademarks by spelling out what is allowable in their contracts with affiliates and by educating their network partners. Network ShareASale provides a dedicated area for posting banned keywords and text explaining the merchants’ choices, easily available referral URLs marked on every sale so the merchant can see the details, a feedback system for merchants to tag terms-of-service-violating affiliates to others, and other mechanisms making implementation of a merchant’s choices easier and more effective.

“Each merchant has different ideas when it comes to this issue, so our goal is to try to make as much information as possible available to both the affiliates and merchants on our network so that they can run their programs as they wish to run them,” says ShareASale President and CEO Brian Littleton. He encourages merchants to upload their individual agreements as well as a list of prohibited keywords so that all parties are clear on what is allowed.

One observer says that merchants need to ask the networks different questions instead of just asking for advice on whether or not they should allow domain name bidding in their programs. Rather, the merchants should be posing questions to the networks such as: What will the networks do for me? What tools will they give me to support and facilitate my choices on these issues? How will they help me police a decision to disallow it and what repercussions/tools will they give me to stop people who do it and won’t stop?

Domain name poaching is not going away anytime soon, but search experts promoting best practices say that savvy merchants and affiliate managers that educate themselves on the complex issues will realize the practice is a shortsighted path to profits, and ultimately bad for the entire industry.

Winning With Authority

It’s all good – from online advertising being up 25 percent, according to the IAB; to online commerce on the rise 23 percent, according to comScore; to Google search queries that are up 41 percent, per Nielsen//NetRatings. It’s clear that online marketing grew strongly through the first three quarters of 2007.

However, as industries grow, so does the attention paid by state and federal legislators, regulatory bodies and enforcement agencies. From the Federal Trade Commission (FTC), to Congress, to state attorneys general, to the courts, those empowered to oversee online marketing took a more active role in 2007. While the focus was more on enforcing existing laws to protect privacy and eliminate fraud than expanding authority, the active deliberations over the government’s role in guiding online marketing indicate that more rules could be on the way. Here is a rundown of the key governmental activities and what they mean to your future.

Targeting the Targeters

Behavioral targeting, which delivers relevant ads based on consumer interests as determined by prior online activities, is growing in popularity with online marketers, but privacy advocates are calling for government intervention. Marketers’ ability to more closely track – and share – information about likes and purchases will likely lead to a showdown in the courts or the halls of Congress.

Privacy groups prompted the FTC – for the first time in seven years – to hold a “town hall meeting” to discuss behavioral targeting and consumer protection. More than a dozen privacy groups either spoke at the November event or issued statements calling for greater FTC oversight of behavioral targeting.

Pam Dixon, executive director of the World Privacy Forum (WPF), says more government intervention is needed because the industry has been unwilling to self-regulate, and because it must be made simpler for individuals to prevent their online activities from being tracked. “The oversight has not been there,” Dixon says.

Opting out of cookie tracking through a Web browser doesn’t guard against other technologies used in tracking, Dixon notes. The current system for allowing consumers to opt out of being tracked isn’t working. Her organization issued a report criticizing the National Advertising Initiative (NAI) – a group that was formed after the last FTC meeting on targeting – as ineffectual because technology has far surpassed its requirements.

NAI has been criticized because of a lack of publicity and public awareness, and because many marketing organizations have not joined the voluntary effort. Advertising.com, DoubleClick.com, Revenue Science.com and Yahoo are current NAI members, and Microsoft and Google submitted applications to join late in 2007.

Dixon says technologies such as Flash and Microsoft’s Silverlight have grown well beyond the narrow definition of tracking by cookies as originally set up by the NAI. Deleting cookies and configuring a browser to protect against tracking are too cumbersome for most consumers, she says. According to the WPF report ” … the opt-out is counterintuitive, difficult to accomplish, easily deleted by consumers, and easily circumvented.”

The WPF and eight other organizations are calling for the FTC to set up a national “Do Not Track” list, where consumers could opt out of being tracked. The proposed system would require marketers to comply regardless of the technology being used. “It has to be a one-stop shop for consumers … they should not have to opt out individually to different types of ads,” according to Dixon.

Alissa Cooper, policy analyst at the nonprofit Center for Democracy and Technology, which joined in the request for a Do Not Track list, says legislative action might also be necessary to create and enforce the list. To make consumers more aware of how they are being tracked, Cooper suggests making the privacy controls in Web browsers more accessible to consumers, and to code information into the ads themselves about the tracking techniques. For example, right-clicking on an ad could provide details about the tracking mechanism and how to opt out, she says.

Cooper says marketers have a “tremendous amount of interest in behavioral targeting,” but “it remains to be seen if the cost of building behavioral programs is worth it in the end.”

Just days after the FTC meeting took place, the Center for Digital Democracy and the U.S. Public Interest Research Group filed a complaint with the FTC asking for more involvement in regulating behavioral marketing activities. New marketing technologies “have sharpened the precision with which Internet users are tracked and targeted,” including “schemes on the part of both Facebook and MySpace, that make clear the advertising industry’s intentions to move full-speed ahead without regard to ensuring consumers are protected,” according to a letter from the groups to the FTC.

Mike Zaneis, the vice president of public policy for the Interactive Advertising Bureau, says a Do Not Track list is unnecessary and would be overly complicated to administer. Zaneis says the online marketing industry is “in near unanimity in opposition,” to the government overseeing a Do Not Track website.

Government-imposed protections could “block large swathes of the Internet,” Zaneis says. Sites that personalize e-commerce options or that customize content might be blacklisted under such a system.

What Consumers Want

Unlike the Do Not Call list, which was set up by the government because of frustrations with telemarketers, Zaneis says there is “not the same outcry from consumers.” Research conducted by the IAB indicates that consumers would be willing to pay to receive more relevant ads, according to Zaneis.

One member of the U.S. House of Representatives believes more oversight is needed. Representative Edward J. Markey, a democrat from Massachusetts, urged the Federal Trade Commission to look into targeting practices. “The Federal Trade Commission should promptly investigate the privacy impacts of Internet tracking and targeting techniques to ensure that loss of privacy is not the price consumers must pay to realize the benefits of online commerce,” according to a statement by Markey.

IAB’s Zaneis believes that Congress should not draft new privacy laws, as the FTC currently has sufficient authority to enforce existing laws. “The FTC has enough precedent … in defining the rules of the road.”

Within days of the FTC meeting, social networks Facebook and MySpace unveiled plans for intertwining data about individuals and their purchases with online advertising that could prompt congressional action or litigation.

Facebook’s “Beacon” program was altered in December after an outcry from users. The program originally alerted all of a member’s online friends when a purchase, such as books, CDs or tickets, were made on a partner site. This feature was changed to an opt-in. Similarly, Facebook’s Social Ads puts ads for related products near member’s activities, such as when they rate or purchase music.

Some Facebook members have complained that delivering information to friends about purchases has interfered with gift giving, as significant others prematurely found out about holiday and birthday gifts.

Political action group MoveOn.org is using the social networking tools of Facebook to protest the behavioral program. MoveOn.org, which has successfully organized members to communicate en masse with their congressional representatives, has formed a Facebook group to petition the behavioral programs for what the group sees as an invasion of privacy.

Competing social network MySpace expanded its behavioral targeting program to search member pages for words indicating interest in specific categories (such as music or travel) and enables marketers to target the audience that will see its ads.

The European Union is also investigating behavioral targeting practices, and new rules there could ripple across to practices in the U.S. The Article 29 Working Party is considering whether culling data about buying habits and Web-surfing history violates consumer privacy. While U.S.-based sites may not be directly affected, changes in targeting policies could be enacted globally to provide consistent experience to consumers.

Government Becoming Adware-Aware

The FTC also clamped down on propagators of adware for failing to disclose the less-than-noble intentions of their software. In March, the FTC settled a case against software company DirectRevenue for using unfair and deceptive methods to get consumers to download adware and for obstructing its removal. As part of the agreement, DirectRevenue forfeited $1.5 million in “ill-gotten gains” from adware distribution and agreed to cease and desist from distributing same.

As part of the government’s increasing prosecution of adware peddlers, the FBI and the Department of Justice cracked down on a major distributor who was hijacking computers to generate spurious ad revenue. John Schiefer, a former security consultant, pleaded guilty in November to masterminding the installation of adware on 137,000 computers.

Schiefer installed the software onto a network of unwitting individuals’ PCs to create a botnet that generated ad revenue and also stole PayPal and bank account information. According to the U.S. Attorney’s office of central California, this was the first prosecution for using a botnet in violation of federal wiretapping laws. The software generated more than $19,000 in revenue from a Dutch advertising company, which had to be refunded as part of Schiefer’s plea bargain agreement.

Adware proponents were on the losing end of a significant court battle. In September, software distributor Zango (which the previous year settled an adware case with the FTC) was unsuccessful in arguments before a district court in Washington to prevent software tools company Kaspersky Lab from classifying Zango’s software as posing a potential risk to a person’s computer.

“Zango lost big,” says Ben Edelman, a spyware expert and assistant professor at Harvard Business School. Based on the ruling, Edelman says software tool vendors are “inherently protected” from liability in their efforts to protect consumers from adware, spyware and other malicious software.

Despite these prosecutions for distributing adware, deceptive advertising software is still abundant, according to Edelman. A suit filed in California in 2006 against Yahoo alleges that the search company distributed popups that were bundled with spyware software, generating allegedly bogus ads, says Edelman, who is co-counsel in the case. The ads were also placed on “parked” domains – websites created by scripts that did meet the criteria of quality content that Yahoo promised its advertisers. A trial date has not been set.

Congress Eyes Spyware Legislation

While legislators on Capitol Hill did not take action on many of the online marketing and privacy issues that were investigated by governmental agencies or decided in the courts in 2007, two competing anti-spyware bills passed the House of Representatives.

In May, the House passed the Internet Spyware Prevention Act of 2007, which focuses on providing funding to the Department of Justice for enforcing laws against spyware and the practice of phishing (fooling consumers into revealing personal data). Less than a month later, the Securely Protect Yourself Against Cyber Trespass Act (SPY ACT) was passed, which gives greater authority to the FTC to seek larger fines, and more broadly defines acts that surreptitiously collect personal information.

The IAB’s Zaneis says his organization supports the SPY ACT because it emphasizes greater enforcement of existing laws. The IAB testified in Congress against passage of the SPY ACT because it overemphasizes the requirement for consumer consent and could stifle innovation, according to Zaneis. He says that the Senate has not moved toward developing similar legislation to either House bill, and is unlikely to do so anytime soon.

Affiliate marketing expert and blogger Shawn Collins is wary of any spyware legislation that Congress would craft. “My fear is about some comprehensive anti-spyware law that includes harmless cookies,” Collins says. He is concerned about elected officials’ lack of knowledge of online marketing, worrying about laws “written by bureaucrats who never touch a computer.”

Spammers Put in the Can

No legislation or regulatory action in 2007 addressed the continuing problem of spam, but the existing laws are being enforced more vigorously. The CAN SPAM Act of 2003 was used in the prosecution of “Spam King” Robert Soloway, who was arrested in May for sending billions of spam emails. Also getting busted for spamming were Jeffrey Kilbride of Venice, Calif., and James Schaffer of Paradise Valley, Ariz., who will each spend more than five years in prison. The pair was sentenced in October for spamming AOL customers and others and was asked to return more than $1.1 million.

IAB’s Zaneis says he doesn’t expect any legislation in the near future regarding spam because the existing laws are sufficient. “The industry must keep doing what they are doing … now it’s an enforcement issue,” he says. The industry has “stepped up,” and an FTC spam summit meeting in July provided the necessary feedback about what was working and the latest authentication tools that could block spam, according to Zaneis.

Florida Takes on Lead Generation

An investigation into ringtone sales in Florida could affect affiliates’ lead generation practices across the country. Florida Attorney General Bill McCollum’s office’s investigation of “unfair and deceptive trade practices regarding online ringtone” sales by AzoogleAds resulted in a $1 million settlement from the company and an agreement to change the wording of its advertisements.

Ringtones previously described as free, though they required a monthly subscription fee, will have to include language describing the applicable fees, according to the agreement with AzoogleAds. Collins says that due to the lack of self-regulation among affiliates, “it was a positive for Florida to get involved.” Ideally affiliates would set up their own rules regarding lead generation practices, but Collins says no one in the industry has volunteered to fill that role.

The FTC is also investigating lead generation practices, with network ValueClick in its crosshairs. John Ardis, vice president of corporate strategy at ValueClick, says the FTC began looking into lead generation in the spring, but only ValueClick’s name was made known because it was the sole public company being investigated.

“Lead generation has become big enough in the last year for the FTC to review it, as it should,” according to Ardis. He says that the investigation has “put a cloud over lead generation,” but he hopes that the resulting clear rules from the FTC that will improve consumer confidence and allow lead generation to become “bigger and better.”

Gambling Stakes Rise

You can’t drive on the highway, watch TV or go to the supermarket without being reminded of America’s obsession with betting. Casinos are popping up faster than you can say “double down,” the World Series of Poker has become a prime time television spectacle and Powerball payoffs are reaching the size of state budgets.

Cashing in on a booming industry that offers some of the highest payouts around might seem like a good bet for affiliates, but not when that business is illegal. Gambling law experts say federal law makes it fairly clear that operating Internet sports books is a crime. But the law is not quite as clear regarding the issue of other Internet games, such as poker and blackjack.

Revenue from, and public support of, gambling (or “gaming” as the industry prefers) in all its forms has never been higher, but pressure from the federal government increases the odds that online gambling marketers may be putting their money and freedom on the line.

The policies of the federal government and some states are, broadly speaking, at odds with the rules governing online betting parlors in many countries, like Costa Rica and Antigua, where most casinos have their operations. The current regulations also put law enforcement in conflict with millions of Americans who place bets online, using their home computers to wager on sporting events and games like blackjack and poker.

Poker is hot right now and poker revenue at brick-and-mortar casinos in Nevada and New Jersey may have jumped 37 percent in 2005, according to the American Gaming association, but Internet gambling is the fastest-growing segment of the gambling market, according to a Pew Research report from March of 2006. Ignorance – whether real or feigned – leads to blissful betting, as nearly 20 percent of Americans surveyed by Pew denied knowing that online gambling is illegal.

More than 80 percent of Americans either support or don’t object to gambling, and last year between $10 billion and $12 billion were bet online globally, according to William Eadington, director of the Institute for the Study of Gambling and Commercial Gaming and professor of economics at the University of Nevada, Reno. Even though online gambling is illegal in the United States (with the curious exceptions of state-approved horse racing and lotteries), approximately half of the total online wagering comes from inside the United States.

Despite its popularity, even those who support gambling are reticent to admit it and many recognize its addictive powers. Less than five percent of Americans admit to gambling online, while 70 percent of Americans say that legalized gambling encourages people to spend money they don’t have, according to Pew Research.

Since no online bettors have been prosecuted, individuals log on without fear for all-night poker games, and some confident folks have even quit their day jobs to earn their living betting.

While online gambling may become a $25 billion annual industry by the end of the decade, legislative changes and more vigorous enforcement could prompt many U.S. gambling marketers to fold. However, some legal experts claim that online gambling will not end unless U.S. authorities prosecute every one of the 50 million Americans who bet online every year.

Sports Booked

In July, the “handcuff-click heard ’round the world” took place at a Dallas airport, where BetOnSports CEO David Carruthers was arrested following an indictment for racketeering, conspiracy, fraud and violation of the federal Wire Act. Carruthers, whose company was headquartered in Costa Rica, was charged along with BetOnSports founder Gary David Kaplan and four alleged co-conspirators who worked for U.S.-based DME Global Marketing and Fulfillment. BetOnSports later closed its Costa Rican office.

The arrest forced many companies who participate in online gaming to shuffle their strategy as they awaited trial, and to see if indictments against other organizations would follow. Proprietors of online gaming sites stopped traveling to the U.S., and a much-anticipated gaming conference in Las Vegas was scaled back.

Seven weeks later, law enforcement agents in New York arrested Peter Dicks, chairman of Sportingbet, which offers online sports betting and is traded on the London Stock Exchange. Sportingbet is one of the largest online gambling operators in the world with revenue of $193 million, for the year ended in July, with two-thirds of that coming from the United States, according to the company. Agents of the Port Authority of New York and New Jersey arrested Dicks upon his arrival at Kennedy Airport, acting on a warrant issued by the state police in Louisiana. The arrest was the first time that officials at the state level had adopted similar tactics and pursued charges against a director of a publicly held Internet gambling company.

“The best advice is to stay away from [online gambling],” says attorney Linda Goodman, founder of the Goodman Law Firm, a practice focusing on Internet compliance. Goodman, who primarily represents affiliates and advertising agencies, says this first-time indictment of a marketing company that promotes online gambling opens the door for other affiliate and ad networks to be prosecuted. “If you pick up one of those [gambling] clients on your network, they can charge you with conspiracy.”

Marketers minimally need to include language on their websites stating that advertisements are not intended for American audiences, according to Goodman. Gambling websites should not accept payments if the customer who attempts to set up an account lives in the U.S., she says.

Goodman believes the federal government is more actively pursuing online gambling agencies because the potential pot for taxation is getting sweeter. “Billions of tax dollars are going out the door,” she says.

Online bettors who live outside of the state of Washington probably need not fear as law enforcement’s limited resources prevent targeting individuals, according to Goodman. The Washington legislature passed a law in June of 2006 that upgraded the penalty for running a gambling site from a gross misdemeanor to a felony, and provides gross misdemeanor and felony penalties for betting online in the state.

Patrick Smyth, the president of Gaming Transactions, Inc. and CEO of Keno.com, says that marketers and online gambling companies can operate without fear if they follow one rule. “As long as you don’t take phone bets, you are fine,” says Smyth, whose wife Kate Kozak worked as brand director at BetOnSports (Kozak has not been charged).

Smyth says the Department of Justice only pursued BetOnSports because founder Gary Kaplan was alleged to have run a sports book in New York before heading to Costa Rica.

Because gambling is illegal in the U.S., many of the proprietors who accept wagers from the United States are headquartered in Costa Rica or Antigua and may have offices in Canada, as is the case with Smyth’s company. “I pay taxes in Britain, but I should be paying taxes in the United States, which is where my customers are,” says Smyth.

The BetOnSports indictment accelerated a change in the marketing of online gaming sites, according to Smyth. To help its partners avoid prosecution for promoting illegal gambling, online wager sites have created fun-only gambling sites with “.net” web addresses to supplement their existing .com gambling sites. The .net sites don’t outwardly promote online gambling, but once registered, participants will be asked if they would like to open an account on their pay-for-play sites, Smyth says.

Hedging Bets

The creation of .net sites provides a defense that has yet to be tested in court. Online casinos and poker sites are transitioning to promoting either just their .net sites, or promoting only the brand name, such as is the case with Bodog and PartyPoker, which operate both .net and .com sites.

Despite the potential revenue, the large networks have historically shunned online gaming, prompting the formation of gambling-specific networks. “We do not have any gambling sites within our affiliate network, nor do we allow any affiliates to link to gambling sites,” says Kristin Hall, product marketing director at Performics.

Gambling networks such as CyberSuccess Group, CasinoBlasters and MainStreet Affiliates have been happy to pick up the slack and offer generous commission programs. For example, PartyPartners.com offers signing bonuses of $75 for each new account opened, or a revenue share of 25 percent or more of gambling losses.

Christopher Shawn, vice president of business development at CyberSuccessGroup, says very few affiliates have closed because of the indictments. “Affiliates, however, have expressed concerns about sending traffic to sports books that accept telephone wagers, as this could be a violation of the United States Wire Act, which is directly related to the BetOnSPORTS Indictments.”

In addition to the potential legal penalties, affiliates could also earn nothing if the gamblers they refer win. Dave Johnson, CEO of WagerWeb.com, says his company pays commissions once a week, and any losses by the gambling sites are carried over until customers lose.

Johnson, who has been operating WagerWeb from Costa Rica for seven years, launched an affiliate network that now boasts 1,500 members. Some of his affiliates who reside in the United States told him they were nervous about continuing operations during the new climate of prosecution, but he argues that the risk of prosecution has not really changed. “The potential [of being indicted] isn’t greater now than seven years ago, there is just more exposure,” he says.

Each state has its own rules about online gambling that marketers should be aware of, Johnson says. If an affiliate were torn about the risks, he “would recommend that they go another way.”

Marketing companies are also distancing themselves from online gambling activities. Mike Shopmaker, CEO of Virtumundo, Inc., says his Overland Park, Kansas, company draws the line at gambling sites that require customers to provide credit card numbers to play. Companies such as Virtumundo client GoldenArchCasino.net, a Cyprus-based gaming site, that offer both pay-for and free gaming, are acceptable, but Virtumundo only “occasionally” markets for gaming companies.

Crapshoot

A new law that makes it illegal for financial institutions to process transactions for customers of Internet gambling sites may reduce the amount of virtual wagering. Congress surprisingly passed the Unlawful Internet Gambling Enforcement Act as part of unrelated legislation during an early hour session, and President Bush signed it into law a few days later.

While most U.S.-based banks and payment processing companies such as PayPal have not been accepting payments to gambling sites from domestic customers, the new law all but guarantees they will stay away.

In the wake of the new law, Sportingbet sold its U.S. operations for $1, and electronic transaction processing company FirePay, which along with Neteller transferred U.S. payments to many online gambling companies, said it would no longer send funds from U.S. customers.

However, Goodman says lobbyists for the online gaming industry could ensure that more restrictive laws are not enacted and may eventually use their influence to erode the current laws. The gaming industry could ask for legislation with more exemptions or challenge the existing laws in court. Also, a desire to tap in to the billions of dollars of potential tax revenue from online gambling could prompt the federal government to change its policies.

Gambling expert Eadington says U.S. lawmakers’ stance on Internet gambling will be increasingly hard to maintain. The exceptions in the law that have been “carved out” for betting on horses and pay-to-play fantasy sports leagues, as well as interest from state lotteries in accepting bets online, have opened the door for more exceptions that would ultimately doom online gambling prohibition, he says. Consumers who support gambling and don’t have a voice in the political process could also become more vocal in opposing new laws, according to Eadington.

Online gambling is growing internationally as nations including the United Kingdom, Sweden and Italy are regulating and taxing the leisure activity, Eadington says, making the current U.S. laws politically untenable. “Can the United States continue its prohibition strategy when the rest of the world is moving in another direction?”

A complaint started by a tiny nation in the World Trade Organization (WTO) could ultimately result in the United States reconsidering its position on Internet gambling. American Jay Cohen was operating an online gambling site on Antigua and Barbuda, a Caribbean nation of two islands, when he was convicted in 2001 of violating U.S. gambling laws.

Antigua complained to the WTO that the United States was violating a trade principle known as “national treatment” that requires foreign companies are treated the same as domestic organizations. Since it was legal for U.S. companies to accept online wagers for horse racing, Antigua argued that gambling websites there should also be allowed to take bets. Antigua has been victorious in nearly all aspects of their complaint through several levels of appeal.

However, the WTO lacks the authority to force governments to comply with its ruling, according to attorney Goodman, so the United States could continue to prosecute foreign gambling organizations. But Antigua is likely to ask the WTO for permission to ignore U.S. copyright laws as a penalty for its noncompliance. If the WTO grants the action, Antigua could begin selling movie DVDs and music CDs internationally, that are produced in the United States, which Goodman says could result in the entertainment industry using its extensive influence to persuade Congress to legalize online gambling.

Wagering On Mobile

The next innovation in gambling will be play-by-play gambling from mobile devices, according to Gaming Transactions’ Smyth. Companies such as LiveHive Systems are creating services that enable bets on each play, such as whether a golfer will successfully sink a putt, from mobile phones or handheld computers.

Also, if China legalizes online gambling, the demand for online gambling will skyrocket, says Smyth. “There is still so much room for growth.”

Whether or not online gambling is made legal in the United States, the industry will continue to expand, according to Smyth. If American affiliates and marketers no longer support the industry for fear of prosecution, international organizations will happily take their place.

Disclosure: Revenue magazine accepts a very limited number of advertisements from online casinos in each bimonthly issue and only if those advertisers are promoting an affiliate program and not actual gaming enterprises.

JOHN GARTNER is a freelance writer in Portland, Ore. He is a former editor at Wired News and CMP. His articles regularly appear on Wired.com, AlterNet.org and in MIT’s TechnologyReview.com.

Leading the Way

Online lead generation gets no respect. Online lead generation affiliates less so. While the sector is growing by leaps and bounds – 290 percent over 2005, according to the Internet Advertising Bureau – people like Peter Martin and Robert Jewell just seem to drag its reputation through the mud. These guys had the honor of being sued by New York State Attorney General Eliot Spitzer in March for selling the private details of up to 7 million customers to marketers when they said they wouldn’t. Spitzer called it the “largest deliberate breach of privacy in Internet history.”

“There are people that don’t do things on the up and up,” Dan Felter, chairman of the recently formed Online Lead Generation Association (OLGA), says. “Online lead generation, when done properly, can be done well,” says Felter, who is also CEO of Opt-Intelligence, a lead generation firm.

High-profile busts like Spitzer’s only give a black eye to an industry trying to police itself and keep undue regulation at the door. Last year the online lead generation machine brought in $753 million, according to the Internet Advertising Bureau (IAB), which predicts over $1 billion for the lead gen space in 2006.

Revenue for online lead gen made a healthy gain to reach 6 percent of all Internet advertising spending during the first half of 2005, according to the IAB. That’s $347 million. Go back to 2002 and it was only 2 percent of Internet advertising spending in the first half of that year, or $114 million. But that is a year-to-year increase of 204 percent, IAB figures show.

DEFINING THE SPACE

Just the phrase “lead generation” also means different things depending on who you’re talking to.

When an advertiser needs new potential customers to sell to, one method of getting names and ways to contact these people is to buy a list. This list of people is called the leads. Generally these people have already expressed an interest in the product – be it iPods, real estate, cars, mortgages or other retail goods – and have agreed to be contacted by the advertiser. This is also known as permission-based marketing and in some cases it is called co-registration.

The most popular online lead gen technique is the “opt in.” This is where a customer registers online to join a free newsletter or newspaper or social network and sees a page where he can request to receive additional newsletters or marketing from third-party companies. Generally, you check a box to say it’s okay. Interaction with that page is sometimes required to complete your registration.

Some companies also practice “double opt in,” where you check a box but also must follow a link in an email as a way to confirm your email address but also, in essence, asking you twice that you really meant to opt in. Popular opt-in trends include an effort not to ruin your surfing experience by serving you multiple pages of opt-in options and by allowing you to bypass offer pages.

Suspect practices that used to be commonplace but are now considered intolerable are “opt out,” where you are automatically signed up for other offers and you must uncheck the boxes to refuse; pages where offers outweigh content; offers of free products for forwarding the offer to others; free offers that still involve a fee; offers that require the downloading of adware or spyware; and, of course, offers that do not explicitly say they will not sell or give your private information to other advertisers.

Since there is a commission for every lead generated, it becomes attractive to enter a pay-per-lead or pay-per-sale contract with an advertiser. And with that model being very much like the affiliate marketing model, affiliates have flocked to lead gen. The flood of lead gen affiliates in the online world – like anything – breeds bad eggs and good.

POLICING LEAD GEN

Enter OLGA. Chairman Felter helped start the trade group when he realized what a stench surrounded the word co-registration, or co-reg. When describing what his company, Opt-Intelligence, does he tries to avoid the word co-reg. “If you could see the people’s faces at conferences when they finally got what I did,” he recalls.

OLGA currently has more than 25 lead gen companies as members and considers its mission to define best practices and champion transparency in the industry. Felter boasts that lead gen could become “almost as valuable as search.” However, he adds, “barriers to enter the market are pretty low.” Hence, the surge in online lead gen affiliates operating in a sometimes-ethical vacuum. “It’s the cutting corners that give lead gen affiliates a bad name.”

Felter says, early on, when opt-out was more common ,”advertisers all got burned by co-reg.”

The offers would end up on disreputable sites – such as porn – and the advertiser would essentially receive a “data dump”: raw lead information with no indication if the leads were from opt-in or opt-out and no way to measure the quality of the lead. That’s why Felter hates using the word co-reg, but also why the industry is poised to explode as burned advertisers come back to the well.

And as they return, now is the opportunity to prove that this time around advertisers, publishers and lead gen companies can all get along and share the wealth. “There is something called common sense,” Shai Pritz, CEO of Unique Leads, says. “If somebody is doing shortcuts, it will come back to bite them.”

Jim Vines, CEO of LeaderMarkets.com, agrees that it isn’t really very hard to figure out when someone on your network is doing wrong. “Having been an affiliate myself, I know the way traffic should look.” He claims to know when something doesn’t look right. Usually it is too many leads over a short period of time coming from a single affiliate. Vines says he goes the extra yard by talking to all their affiliates on the phone before sending any offers. “I have to personally see if they know what they are talking about before I send them anything.”

It might stand to reason that an industry that requires so much policing is inherently ineffective. “There is nothing wrong with the tool but how you use the tool,” Vines says. He adds that policing just comes with the territory. At least to Vines, the fun of it all is the personalization. “Leads are just the icing on the cake,” he says. “Whenever an affiliate calls, we know them. Our job is to help our affiliates find the campaign that is working the best for them. We can help them figure out what list is best for them.”

GOOD LEADS

Matt Hill, CEO of eForce Media, says they apply technology and science to matching leads to clients. Others, he says, create leads by traffic driving – but so many requests go unanswered because there is no matching. A guy looking for a mortgage deal ends up getting a thousand calls by mortgage brokers, Hill says. Or leads come but no calls are made because the company can only afford to buy so many leads per day. “Most companies in this space only sell about 50 or 60 percent of their inventory,” he says, “so it doesn’t matter if leads fall on the floor.”

Pritz at Unique Leads also aims high, which is why he runs a closed network. “The affiliate managers will say what offers they want and we create the links for them,” he says. “The control is better that way. There are human beings involved; we do what we can to make sure the system works.” Unique Leads likes to see website screenshots and have an understanding of UI experience of each site they sign and they always make the users sign privacy policy forms.

“Like every industry on the Internet there are black hats and white hats,” says Hill. “It’s a business that’s been around longer than the Internet. But since the Internet, it is becoming more sophisticated.” He says his lead gen company’s mission is to find the most perfect match between leads and clients. He says there are still some big companies who do opt-out co-reg because the volume they get is so big it cannot be ignored – but in the end, he says, “those companies will weed themselves out.”

“Some websites say, if I throw a few opt-outs on my page I make 20 cents more,” says Felter, adding that the websites figure a few opt-outs won’t be noticed. And some companies will turn a blind eye to it all because the sheer numbers of leads (regardless of their quality) are meeting their quotas.

Chris Jeffers does B2B lead generation as CEO of netFactor and says that his buyer is a marketing executive. “They are frustrated because less than 2 percent are converting and completing online registration,” he says. “This is critical for sales – sales says, ‘give me quality’ but marketing is rewarded for providing tonnage.” This means sales and marketing are effectively operating against each other. Quality leads can help close the gap.

GUIDELINES AND BEST PRACTICES

That is another aim of OLGA: to define the best practices for the whole industry. The founding members of OLGA include Felter; Stephan Pretorius of Acceleration eMarketing; president of Feedster, Chris Redlitz; and Kitt Collier Odukoya, director of marketing at EarthLink. Member companies include Active Response Group, CoReg Media, eForce Media, Flatiron Media, Innovation Ads, LeadVerifier, MediaWhiz, Monster Worldwide, ON24, SendTec, Unique Leads and WiseClick Media.

Initial guidelines that OLGA endorses include that advertisers always know where their offer is being placed; that advertisers clarify that they are buying an opt-in only; that the leads did not come from offers “forced” onto customers via opt-out or opting in as a requirement of registration; that it is easy for customers to bypass all offers if they prefer; that the registration process in general is about the content and not all about signing up for offers; that an auto-respond email include opt-out and unsubscribe links; and that it is always clear what exactly the customer is signing up for.

If trade associations and policing succeed there is no doubt the industry will grow even more than it has already, provided there are no more high-profile debacles that could trigger a call for federal regulation. No one wants that. “We need to keep rules flexible so that people can operate their businesses,” says Sujay Jhaveri, CEO of Flatiron Media. He says “pro-business people in the business world” will take care of tempering regulation. He notes that the CAN-spam legislation passed in California was much stricter than a version that went federal. Testing the limits of regulation will probably continue. “You are dealing with a marketplace that is very profitable,” Jhaveri adds. “Online multilevel marketing will mimic off-line eventually.”

Other events to look forward to in online lead generation will be consolidation. Hill of eForce says there are many lead gen companies that have maybe 10 employees who are operating in niche areas that are ripe for acquisition. In fact, eForce just completed funding for that very purpose, he says: to add companies’ expertise to what they do. And, he adds, the transitions are very easy since the employee counts are so low; you see an immediate profit increase by applying the traffic you acquired.

Vines of Leader Markets says being a former lead gen affiliate helped him be a better president of a lead gen network; that is, he wants to remain small. “Some affiliates can do six figures of traffic per month,” he says. “They don’t want to feel like they have come to a cattle call.” That’s why he wants to keep it personal with his network. “I’m not looking to become the next CJ or LinkShare,” adding that while the challenges are many, so are the rewards. “If someone is gun-shy, they probably shouldn’t be in it,” he says.

OLGA’s Felter says the key terms are transparency and awareness. “You’ve got to watch your metrics. What are you getting and is it valuable?”

Data Double Duty

Website publishers are up in arms about the potential threat posed by employees at companies, who have access to their crucial data that could be used to compete with them.

Insiders have nicknamed the situation “Triple Jangro,” after the catchy title of a blog post on Revenews.com by David Lewis, CEO of 77Blue. The title refers to ex-BeFree/Commission Junction product manager Scott Jangro, who left the affiliate network several months ago to become a full-time affiliate.

The crux of the recent situation revolves around the threat of perceived or potential conflict of interest. Observers claim many employees of search engine companies and affiliate networks are infringing on the data privacy rights of their clients by using data from affiliates and merchants to enhance their own affiliate sites, or to go to networks and buy traffic based on inside information these employees receive from clients.

While many say they have suspected this practice for years, news of the situation came to a head at the LinkShare Partnership Summit 2006 in January. A few former Commission Junction employees attended the event as affiliates and revealed that three CJ staffers resigned after the company recently put a policy in place prohibiting employees from also being publishers.

“In the early days of affiliate marketing and affiliate networks – especially CJ – there were a lot of entrants into the space who came to us being program managers or some were publishers and gravitated toward this space,” Jeff Pullen, COO of ValueClick, says. “Over the years they have operated websites of their own on weekends and evenings and in the past we have not discouraged that. It was a good way for people to know the business. We always had a code of conduct and we are aware of the proprietary nature of the information we handle. Because we consider ourselves a leader in networking quality, we wanted to eliminate any potential appearance of a conflict of interest.”

To that end, an email was sent to everyone at ValueClick and its subsidiaries, clarifying that publicly-held ValueClick would no longer allow any employees to be publishers and violators of that policy would be subject to disciplinary action, up to and including termination/dismissal, according to Pullen. He says the change was spelled out and included in an updated restatement of another policy related to the issue of confidentiality.

“It really is easier, from an operational stand point, rather than to have to try and implement policies to monitor the issue, to just eliminate the practice altogether and not be concerned,” says Pullen, who noted that the new policy was not prompted by any wrongdoing nor was there any evidence of any improprieties.

Still, the new policy resulted in the departure of three employees – Chad Darling, an account representative for many of search affiliates; Andy Powell, who didn’t work with publishers but was part of the search management team; and Don Batsford, a CJ employee, who joined the company when it acquired BeFree.

“The people that left took a look at two different business opportunities. These are entrepreneurially focused publishers that chose to pursue that route. We hope they continue to do well. But they can not do both things.”

It’s unclear if these ex-CJ employees were running affiliate sites or doing arbitrage. Commission Junction officials declined to provide any details.

Regardless, the situation has angered many affiliates, who claim network staffers are supposed to be helping affiliate partners, not helping themselves. Despite their outrage, many affiliates, network representatives and industry watchers say the overall issue is so politically charged, they declined to have statements attributed to them and spoke only on the condition of anonymity.

The issue also sparked a lot of heated discussion on the affiliate forums and generated plenty of fodder for bloggers, many of whom admitted to posting comments on a variety of industry blogs under pseudonyms.

“The networks have been very quiet on this issue and are reluctant to make any public comments. This lack of communication is causing an increasing concern of potential wrongdoing at the networks. When the networks have to talk to their lawyers before commenting, nobody feels comfortable,” says Adam Viener, president of IM Wave, a Virginia-based search affiliate. Darling was Viener’s account manager.

Here is a typical post. “Let me get this straight, top affiliates shared their secrets with account managers at a network only to find out those account managers were their competition and using those hard-earned secrets – I’d be fuming. So much for a trusted third party.”

One angry – and anonymous – affiliate tried to put a positive spin on things. “If they quit their day jobs at the network, they were obviously making more money as an affiliate and that certainly bodes well for the state of affiliate marketing as a very lucrative career.”

Cause for Concern

Viener says he alerted Commission junction to the potentially problematic issue.

“I had a conversation with Todd Crawford [Commission Junction’s vice president of sales] about this issue at Affiliate Summit [2006], after talking with some top search affiliates who were concerned that CJ employees were looking at HTTP referrer data to determine exactly which keywords they were bidding on were converting to sales. They seemed to have some internal evidence that showed that when they identified new keyword niches with no competition, that almost immediately after there was a conversion on those terms, new affiliates popped up advertising on those terms,” Viener says.

Both Crawford and other CJ executives insist that calls to that specific database are tracked and protected. In some case only two to three people at the network have access to that sensitive information.

“To be an effective account manager we certainly have access to operational data. We have to do that job in a good and helpful way and that means seeing a variety of data,” Pullen says. “There is no scrutiny that we can’t withstand, and we encourage and hope others can say the same.”

One CJ super affiliate, who asked not be identified, says that on more than one occasion, within days of launching a new campaign, he would also see competition. “No one knows we are running the keywords, so in theory, no one should pick it up. That led to some speculation how it got started and I went away thinking that I should speak to the network about my concerns regarding who has information about keywords and referring URLs. I’m concerned about who has access to keyword data as well as what is converting and what is not converting.”

Vinny Lingham, founder of IncuBeta, poses a possible scenario:

“CJ has about 2,000 merchants, and it takes a lot of time and effort to evaluate, negotiate, research and run test campaigns. Say that one in every 10 campaigns we test out becomes a full-blown campaign, which is both scalable and profitable. We don’t focus on small campaigns, so typically we’re looking for merchants who can do a lot of volume and has great conversion rates.

“An average test campaign costs us anywhere from $5,000 to $25,000 before we even see a daily profit. Can you imagine our frustration when we take a program on CJ with a network earnings of 2 or 3 and turn it into a 5 overnight, only see other affiliates jumping onto the bandwagon – almost as if they had inside information.

“If I worked at CJ or any other network and I knew who the top affiliates were, I would just wait for them to test out all the merchants for conversion rates, etc, and then run only the successful campaigns – why bother running test campaigns myself? Even worse, imagine after all our testing, the network employee gains access to the keywords we’re bidding on and the conversion rates?”

Steve Denton, recently appointed president of LinkShare, says that as employers you can have policies in place but that “ultimately you’re not going to control what people don’t do at work.”

As for LinkShare, the company encourages its employees, especially those in customer-facing jobs, to set up to affiliate accounts as part of their training, according to Denton. “We see it as a value-add. It allows our employees to know what is going on in the space from the point of view of the affiliates as well as the merchants,” he says.

However, LinkShare has a variety of controls in place to ensure the security, confidentiality and privacy of the data related to merchants and affiliates. All LinkShare employees are required to sign a confidentiality agreement and a non-compete agreement.

“Those agreements are reflective of the fact that we deal with a lot of sensitive data and they make all employees contractually aware of what they can do with any of that data,” Denton says.

LinkShare also controls the access to data by limiting certain pieces of information only to specific jobs titles as well as by workers’ roles and responsibilities, he says.

In addition, through the company’s Athena registration and affiliate validation system, LinkShare monitors which employees have affiliate accounts and what they are earnings via their social security number, Denton says.

Like CJ, affiliate network Performics has a policy in place prohibiting employees from being affiliates.

Still, observers suggest it’s not about having a policy, but more about enforcement and direct communication to affiliates about who has access to what specific data.

Lack of Communication

Some chided Commission Junction for not addressing the “Triple Jangro” issue directly with affiliates, most of whom found out about the situation only by reading online reports with sketchy details, inflamed blog comments from other publishers or after being informed via email that their own account representative had left Commission Junction. Many complained there was no official comment from CJ on the details or any attempt to reassure or placate affiliates.

“CJ did a poor job of communicating this problem to the affiliate community,” Viener says. “By not disclosing what was happening, even if there is no evidence of wrongdoing, it makes me feel uneasy. That’s wrong. I don’t feel like I have the facts; I’m not comforted because there has been no communication from the company. I need to hear what happened. There needs to be more communication,” says Viener.

“The networks should take a hard look at these e-affiliates and communicate with the top affiliates they had contact with about what programs they are running, what sites they have, and give top affiliates a chance to determine if their business practices have been compromised,” says Steve Shubitz, who operates stopscum.com.

“I don’t know if that step was necessary. There was no evidence of wrongdoing, so it was not an issue,” Pullen says. “If an individual publisher was concerned and wanted to ask any question of their account manager, that would be fine. I don’t see these as us needing to be proactive. We manage account relationships all the time and information is held in strict confidence,” Pullen says. “It was not identified as an issue in the past five or six years. The existence of the relationship has always been positive with no controversy or issues. There were no improprieties so that would be explaining a negative. Why would we explain something that is not an issue?”

Others think Commission Junction acted appropriately in dealing with the situation.

“The issue of staffers being publishers at CJ has been simmering for a long time and it’s great to see CJ take a leadership role and be protective,” Beth Kirsch, group manager, affiliate programs at LowerMyBills.com, says. “This challenges other networks with even stickier ethical issues to address the same concern. The affiliate marketing industry is maturing and focusing on these issues is part of that process. Personally, I think this is a great step.”

Putting up Your Guard

Meanwhile, the situation has left many affiliates skittish about revealing information – even to their own account managers.

“I’ve got to be a bodyguard in the future,” Viener says. “I can’t say or have conversations in the future about my business. It’s a catch-22. Because if you are secretive, people assume you are cheating.”

Some caution against disclosing many crucial data points with account managers at the networks.

“I would tell my account manager my payout terms with merchants, what keywords are converting, referring URLs or most anything else. I have the right to privacy, confidentiality and transparency with the networks, but since I’m not 100 percent sure that’s happening, I’ll opt to just keep my mouth shut,” says one affiliate, who asked not to be named.

Shubitz offers this advice: “Webmasters and publishers should assume that every single network engaged in the CPA/CPL does in fact have current employees who are stealing their data and using it to make money.”

He encourages affiliates to “Wash/obfuscate your HTTP referral code and never disclose any details about your marketing procedures, media buys, other sites you own or your site’s demographics to your network.” He goes on to note, “Immediately complain to senior management in writing if you suspect that your procedures have been compromised and in fact are being used by current network employees to make money. Continue to be a friendly ‘partner’ but don’t disclose any data that a network employee could use to steal money from you.”

Nature of the Beast

Many claim the entrepreneurial nature of online marketing breeds this type of behavior.

“People tend to be entrepreneurial and opportunistic, and you cannot fault anyone for that – it’s human nature.” Lingham says. “The difference between this and other businesses is that traditionally you just couldn’t start a business that easily, but online marketing efforts can be started with virtually zero cost,” 77Blue’s Lewis says.

Jeff Molander, president of Molander & Associates, an affiliate marketing consultancy, is surprised that it took this long for the issue to be raised. And while Molander agrees that most employers need to have policies in place to ensure the privacy of affiliate data, he says “insights and knowledge” are gained simply by virtue of job duties, daily work experiences and continually expanding knowledge of the market space. He also claims that much of what affiliates do is plainly seen in search engines.

While other industries have laws governing use and disclosure of sensitive information (lawyer/client privilege, doctor/ patient confidentiality); there is nothing like that for performance marketing, which has sparked talk of legal intervention.

“A class-action suit would damage the industry’s reputation and create unnecessary long-term distractions in our core businesses of building a sustainable and long-term industry,” Lingham says. “We need self-regulation. The government takes too long to get things done. It should be the stakeholders making these decisions.”

Instead, Lingham suggests that super affiliates and representatives from both the networks and search engines, should have a round-table meeting to discuss the issues about enforcing both data privacy and non-competes with their staff with respect to all their clients.

Most say it’s in the best interest of the networks to nip this in the bud and take a leadership role.

“The networks are in a precarious position here. Their business model only works because of the trust established with the merchants and the affiliates. If the networks aren’t open, ethical and forthcoming about these types of issues, then their role in this industry will be diminished,” says Shubitz.

Taxing Times

Back in the early days of the dotcom boom, rampant speculation arose about how or even if online sales should be taxed. For consumers, e-commerce was almost too good to be true: an ultimate extension of mail order, where any product could be ordered from an out-of-state seller with the click of a button, avoiding sales tax, albeit paying any shipping fees that were charged. However, since the mid-90s the e-commerce industry has evolved and U.S. economic conditions have changed, sparking legislators to make a serious push to implement some type of standardized tax code for purchases made online.

As a source of potential revenue for state governments, the topic of Internet taxation cannot be overlooked nor can the impact it may have on online marketers and affiliates searching for profits in an increasingly competitive medium.

According to a July 2004 research report from the Center for Business and Economic Research at the University of Tennessee, states are still losing billions of dollars in uncollected sales tax revenues from transactions that occur through electronic commerce. For 2004, the report estimates that states lost between $8.9 billion and $10.8 billion from e-commerce sales alone and predicts that this amount will continue to grow. By 2008, the report estimates that revenue losses from online sales will range anywhere from $11.8 billion to a high of $17.8 billion.

These figures may sound high, but they are actually below the previous estimates made in 2001. At that time, forecasters didn’t factor in an economic slowdown and miscalculated on volume of business-to-business transactions, according to Neal Osten of the Federal Affairs Counsel, which was behind drafting the legislation known as the Streamlined Sales and Use Tax Agreement (SSUTA).

The Legislation

The SSUTA (outlined at www.streamlinedsalestax.org), became effective on October 1, 2005. It lays the groundwork for standardizing the way participating states define, charge and collect sales and use taxes.

The idea behind SSUTA is that by taking the burden of sorting through tax jurisdictions away from retailers, the participating states could in turn ask federal lawmakers to introduce new legislation, which could challenge the 1992 Supreme Court decision that forbids states from forcing a business to collect sales taxes unless the business has a physical presence within their state.

SSUTA required at least 20 percent of the population of states with sales tax to sign on in order to get rolling. At press time, 13 states had made all the changes in their sales and use tax statutes and administrative rules to comply. Those states are: Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Nebraska, New Jersey, North Carolina, North Dakota, Oklahoma, South Dakota and West Virginia. Utah, Tennessee, Ohio, Arkansas and Wyoming are next in line to comply.

“It is the intent of the SSUTA to treat all transactions in a competitively neutral manner,” explains the Federal Affairs Council’s Osten. “That is, sales, whether they are made in a brick-and-mortar retail operation or purchased online, are treated similarly for sales tax purposes. The agreement provides simplicity and some uniformity for out-of-state sellers in collecting a state’s sales taxes.” It’s important to emphasize that currently the agreement is voluntary for both states and sellers. “The states, whether they comply with the agreement or not, do not have the authority to require remote sellers (such as affiliates) to collect their sales and use taxes,” he says.

Osten explains that until Congress passes legislation giving those states that have complied with the agreement mandatory collection authority, remote sellers, online or not, have the option to volunteer to collect for sales made in the states that have complied with the agreement as of October 1, 2005.

If a remote seller volunteers to collect for one of the states in the streamlined system, they would have to collect for all the states in the system. Besides being compensated for collection costs, remote sellers that volunteer to collect are also given amnesty by these states if they may have had past collection responsibility in one or more of the states and did not collect sales taxes.

After Congress passes legislation and makes sales tax collection mandatory, amnesty will no longer be granted. Basically, nothing really changed for online sellers on October 1 unless they volunteered to collect for states where they did not have physical presence. Osten says that even if a company has a physical presence in one of the 18 complying states, it is not required to abide by the new agreement, which brings about an interesting point – compliance.

“The biggest problem that I foresee with collecting sales tax online is enforcement,” says Alan Townsend, a LinkShare affiliate and marketing manager for PersonalizationMall.com. “Who’s going to be responsible for determining who’s in compliance and who isn’t? There are so many opportunities here for loopholes it’s mind-boggling. What state is the business registered in? What state is the domain name registered in? Who is it registered to?

What state is the site hosted in? What state do the products ship from? The only way for this to be fair and effective for the states and the businesses involved is to have all 50 states participate. But overall, I think the states are headed in the right direction to achieve their goal with the SSUTA; not that I’m for more taxes.”

Taxation Inevitable

Some say the push for online taxes was coming. It was just a matter of when.

“I think the recent surge in interest by both old-world brick-and- mortar firms as well as by legislators to collect more taxes from Internet sales is, in the greater context, an awakening to the explosive growth and potential of online firms and our industry in general,” says John Lemp, CEO of online affiliate network Clickbooth.com. “Ten years ago, these types of laws were extremely unsuccessful. Even five years ago such laws would never have dreamed of passing, but now traditional firms are seeing the growth Internet companies are experiencing and how a law like this could slow migration of their customers to the Web.

“In the shift from offline to online spending the big losers are the states that collect less tax,” says Ola Edvardsson, CEO of interactive strategy firm Performancy.com. “Since they are in the business of collecting taxes they are not going to sit by the sidelines and watch.”

Dave Taylor, business blog strategist at Intuitive.com, adds that “arguably the situation is different today simply because the nation faces more debt with the war in Iraq, Hurricane Katrina and so on. Does that justify greater taxes? Perhaps.”

The Burden

Still, some worry about the impact this move will have on continued growth and how smaller businesses will handle the burden of dealing with complex tax regulations.

“Whether this slowdown will be very minor or very large is still up for debate,” Lemp says. “Personally, I wouldn’t worry about the larger- and mid-sized Internet firms as they will respond to the market and growth will continue – it’s smaller firms or individual proprietors trying to keep up with compliance that worry me the most.”

Townsend says he believes this is a Pandora’s box. Lemp agrees. “Even if these new laws are 100 percent successful in getting all 50 member states to enact them and they have consistency, they will still create enormous new costs and workloads for any small business attempting to sell products,” he says. “I have sold products in the past and the amount of paperwork and technological systems we had to create to keep up with one state’s laws was difficult enough for a small business. I worry more about the thousands of eBay sellers or small product sellers creating simple websites trying to sell products in their spare time or building product businesses from scratch. These are businesses with very limited resources and if significant amounts of those resources are tied up in purchasing compliancy software, hiring staff to file the sales and use paperwork with 50 separate states, then the new administrative and technological overhead could be too much for them.”

Although Osten has said states will pay for all the collection costs, the other obvious burdens on business owners appear to be equally daunting.

While the idea is to level the playing field, Lemp believes the opposite may happen. “Businesses that are attempting to comply and are located in states that are enforcing the new rules will attempt to compete with businesses in states not enforcing the rules or simply not complying, making an unequal playing field. Consumers are getting smarter than ever and will check prices at multiple sites and factor in sales tax and so forth when making purchases. If done right, eventually a more lenient national or at least uniform and extremely simple sales and use tax code would have much more success than what’s currently being presented.” Even Amazon.com, the king of online retailers, has stated it will not enforce the policy, bringing the competitive pricing issue further into the limelight.

Affiliate Impact

Besides all the possible logistical hurdles and potential negative consequences raised by the SSUTA, it’s important to note that the agreement does not even make clear what to tax or not to tax. Each state that complies with the agreement will still decide what’s taxable, according to Osten. The agreement only provides uniform definitions for the states to use to decide to tax or exempt an item. The agreement also does not define marketing and/or ad sales and any taxation thereof.

On the marketing front, Townsend says, “most affiliates will not be directly affected in my opinion. The vast majority of consumers shop online for the selection and the convenience of shopping whenever and wherever they want. That’s not going to change. In addition to that, online retailers will always continue to offer promotions such as coupons and free shipping; they have to in order to stay competitive online. Even if you take the convenience factor out of the equation, consumers can still get a better deal online because of the great selection and retailer promotions.”

Edvardsson agrees that affiliate marketers don’t have much to worry about. “It will have little direct effect on affiliates except if conversion rates go down in retail-based programs due to sales tax implementation,” he says.

Furthermore, advertising inventory itself is unlikely to be affected.

“Marketers that sell tangible products will be responsible for complying with these new laws,” Lemp says. That is if, in fact, it becomes law. “As far as I know, marketing, ad sales and intangible goods will not be taxed. These items should never be taxed, as a taxation system on them could possibly destroy certain industries. Intangible goods and payment systems such as PayPal do not have a physical delivery location and a location of origin can be near impossible to accurately calculate without losing significant percentages of sales.”

On the larger e-commerce front, Townsend says, “Very few retailers promote the fact that you don’t have to pay sales tax if you’re ordering outside of their home state. I can’t recall the last time I saw a banner ad for a retailer that read ‘Shop here ” no sales tax!’ Instead, online retailers promote selection, value, convenience and service, just like offline retailers do. This is what consumers are looking for.”

Additionally, shoppers will look at the total price regardless of taxes, shipping or other charges.

Down the Road

That’s not to say that there won’t be any long-term implications of either a voluntary or government-imposed online sales tax.

“The long-term effect for established businesses will be a readjustment of the marketplace unless there is still a good chunk of competing businesses that are not complying – whether international, eBay sellers or businesses located in states without consistency,” Lemp says. “The long-term effect of using the current system will be a hindrance of growth for very small, growing businesses and sole proprietorships.”

He says that as an affiliate network that works with more than 300 separate advertisers, anything that is affecting even a small portion of his affiliates could ripple back to impact his company. Though, he says, it’s not likely that the true effects of these laws would be felt for several years.

“Internet marketers can continue to do what they do best – react to the marketplace,” Lemp says. “If new regulations are put in place, advertisers will need to respond to these regulations and the marketers that work with these advertisers will need to continue to work side by side with their clients to fulfill any new needs that may arise.”

Townsend says that online retailers and affiliate marketers are smart and resourceful people and will likely invent new ways to survive.

“The cost of entry into the online marketplace is much lower than it is for offline retailers,” he says. “This drives competition and ultimately better deals for the consumer. With or without sales taxes, online retailing will continue to grow for a long time to come.”

DAVID COTRISS has spent the last 10 years writing about business, technology and entertainment for such publications as MIT’s Technology Review, Entrepreneur and Streaming Media. He has a B.S. in advertising from San Jose State University and currently resides in Los Angeles.

Win Or Lose

In a lot of ways, Cynthia Fanshaw is just another star in the affiliate marketing universe. With a specialty in search engine marketing, she works hard to drive traffic to her company’s site and then to convert visitors to customers. She’s anxious to learn new tricks that give her an edge over competitors, and glad to share a few tips with newbies.

But there’s one thing that sets her apart from most of her colleagues. Fanshaw promotes adult entertainment, a completely legal yet unmistakably controversial product that has simultaneously emerged as one of the most popular and most vilified areas on the Web. And she makes no apologies.

“My friends and family don’t mind,” Fanshaw said. “They just don’t want me to be involved in being in the content, which I really have no desire to be. I’m actually doing pretty well for myself, and as long as I’m happy, they’re happy.”

Along with online gambling and prescription drugs, adult entertainment is a subject that is sure to spark furious debate whenever it is discussed among lawmakers, affiliate marketers, prosecutors or parents. Each category, in its own way, offers benefits to the consumers who support it. And each draws bitter ire from its detractors.

What can’t be debated is the soaring popularity of the three industries. Nielsen//NetRatings showed 115.6 million Americans visited adult, gambling or drug sites during January – nearly double the number that watched the Super Bowl. They’re also ubiquitous, thought not always in a good way. Worldwide, more than 13 billion spam email messages are sent each day, comprising about half of all email traffic. According to London-based email security company Clearswift, two-thirds of that spam pitches drugs, adult entertainment or gambling.

The rewards for affiliates are generous. Revenue spoke with numerous program managers who said they often pay monthly commissions well into the tens of thousands of dollars in each category.

“As an affiliate myself, I can tell you my motivation for joining such programs is money,” said Graeme Eastman, owner of Australia’s AffiliateGuide.com, a network that promotes gaming and adult entertainment affiliate programs along with more mundane pursuits such as autos and computers. “There is really no other reason to join an affiliate program.”

Or is there? Many of the affiliates we interviewed spoke of the thrill of working in areas considered by some to be on the fringe of polite society. And many pharmaceutical vendors earnestly discussed the need to provide low-cost drugs in the American market, the only major Western power that doesn’t cap the cost of medications. In all three cases, it was clear that something in addition to money was motivating affiliates.

Yet shifting laws and long-standing taboos have left these industries in a social twilight zone where most affiliates are afraid to publicly acknowledge how they make their living. Revenue contacted dozens of affiliates in these areas, and most declined to be interviewed, citing fear of harassment by authorities or simply fear of what their neighbors might say. Although we observed virtually no evidence of criminality, we found a nearly universal desire among these affiliates to operate in obscurity.

It isn’t hard to understand why. Each area carries a special burden for those in the trade:

Gambling: Affiliates promote offshore companies that cannot legally operate in the US, at least not yet. Affiliates are stuck in a legal gray area somewhere between free speech and abetting a crime, and nobody – not even federal prosecutors – could say exactly where the line is.

Drugs: While most online drug stores operate with high ethical standards, the unrelenting river of spam pushing narcotics and male potency pills taints the public’s perception. Plus, some offshore pharmacies have been caught shipping drugs that fall short of US standards.

Adult Entertainment: Tens of millions of Americans view it, but few will admit they do. And the all-too-frequent nightmare of child pornography leaves the industry with an ugly scar that darkens against a backdrop of X-rated spam. Controversial maybe. But affiliates have the US Constitution on their side. “Commercial speech, such as advertising, is entitled to First Amendment protections under well-established constitutional law,” said Larry Walters, an attorney for the Internet Freedom Association who represents clients in the adult entertainment and gambling industries.

Still, problems like these have caused some mainstream companies to shy away. Such large affiliate networks as ValueClick’s Commission Junction won’t carry adult or gaming programs, partly because credit card charge-backs are more common in these industries. Insiders say the rate is higher because customers are caught by spouses or parents when credit card statements show up. Rather than owning up, cardholders tell the credit card company that someone else was responsible. “With CJ, you can see why they stay away from online gaming sites,” said Allan Schneider, former director of the Interactive Gaming Association. “You don’t have disputes with the other industries. [In other industries,] if a guy bought $10,000 in products, I get my commission.”

Even payment processor PayPal backed out of servicing adult transactions in May 2003 and gambling transactions in October 2002. “It’s still unclear how online gambling is going to be regulated, and based on that we felt that we had a legal risk,” said Amanda Pires, spokesperson for PayPal. “We saw higher rates of charge-backs in the adult businesses specifically – and that means a higher operational cost (for us). With adult sites there was a risk and it was just best to exit the business.”

Even Yahoo, which launched a gay and lesbian portal in April 2003 and runs its own dating site, won’t allow adult sites to use its hosting service. “We’re so brand-conscious that we can’t be on a site that contains adult content,” said Michael Brucker, affiliate marketing manager for Yahoo. To be sure, Yahoo flirted with adding adult content in mid-2001, but email campaigns and threats of boycotts persuaded the company to back away from the adult entertainment industry.

Trash or Treasure?

But one man’s trash is another man’s treasure, and some companies have rushed to fill the void. Take dating service FriendFinder.com. Soon after its 1996 launch, “we found people were pushing the envelope (with risque content and photos) on the site,” said CEO and founder Andrew Conru. “Rather than pushing away the industry, we decided to embrace them. We rolled out AdultFriendfinder as a kind of relief valve for the more erotic content.”

Now AdultFriendFinder has more than 8 million members, making it the Internet’s largest adult personal site. While other personal sites downplay their adult content, FriendFinder promotes it just like it does BigChurch.com. “We’re one of the few companies that looked at their marketing and said we’re going to make this a legitimate offering rather than the stereotype of the dark and seedy underworld,” Conru said.

Many niche and mainstream affiliate networks also list adult entertainment, gambling and prescription drug affiliate programs. “As a major directory owner, I thought it was important to list programs from as wide a range of categories as possible,” said Eastman, the owner of AffiliateGuide.com.

From here, the similarities among adult, drug and gambling sites end. Each has its own standards, demographics, pluses and minuses that are explained in detail in the other stories in this issue of Revenue. Here’s a sneak preview of what every affiliate should know.

Gambling

“The Internet is a very good learning environment,” said Schneider, who is now business development director of the affiliate marketing firm RUOnTheNet.com. “Most people won’t go to a gambling table, because of the fears they have. Here you can go online, bet $50, and not be embarrassed or humiliated at the tables.” A study released by Peak Entertainment in 2003 showed online gamblers are 38 percent female and 62 percent male. They’re most likely between 30 to 59 years old and well-educated, with degrees ranging from bachelor’s to doctorate’s. They’re heads of household and solidly middle class, with household incomes around $60,000 per year. Men are more likely to play blackjack; women are more likely to play slots.

Since the US Communications Act of 1934 doesn’t allow broadcast of gambling activities, and the Internet arguably falls in this category, foreign sites have stepped up to fill the huge US demand. There are now two types of merchants: 1) corporations – such as Canada’s Criptologic.com, which was one of the first out of the gate – working within the regulatory systems for their respective countries, and 2) offshore companies, largely unregulated.

“Internet users assume it’s legal if they find it on the Net,” said Schneider. This leaves affiliates open to the possibility that they are “aiding and abetting” the entry of illegal content into US home computers. Odds are the charge would be overshadowed by free speech protections, but that’s a bet many affiliates won’t take because of the widespread uncertainty over what’s legal and what’s not.

In any case, “it’s a good cash-grab for the publishers [affiliates], because these people have a boatload of money,” said Schneider, who still pulls down commissions from his past efforts as a gaming affiliate. To best grab that money, affiliates we interviewed suggested signing up with programs that pay a percentage of client deposits (typically 25 to 50 percent of the money gamblers put up to potentially lose) rather than a pay-per-account structure (a straight fee per sign-up, typically $50 to $150) or a proportion of client losses.

“You’re playing a numbers game,” said Schneider, who still pulls in commissions from his past efforts as a gaming affiliate. “You may as well just play like a casino, and go for the jackpot.”

Even land-based casinos are feeling the online hit. “Six of the last seven years we’ve seen declining sport pool/wagering, and that coincided with Internet sports wagering,” said Frank Streshley, a senior analyst with the Nevada State Gaming Control Board. Meanwhile, “in the last four months, poker revenue has spiked up 35 percent. From talking to properties, they’ve felt what has increased the play is Internet poker sites. (Gamblers are) playing on the Internet, watching TV and coming in to play it in person.”

With this growing demand, affiliates are scrambling to address online gambling’s hot buttons. First, the US doesn’t yet allow US-based sites so affiliates do assume a bit of risk from the “aiding and abetting” angle. However, few if any prosecutions have been initiated against affiliates involved only with promoting online gambling operations; the Justice Department declined to comment on that question.

Second, there is the fear of fueling addictions. The Wall Street Journal recently told the story of Kansas City Mayor Betty Burch who supported bringing a riverboat casino to town only to have her sister lose her home to gambling debt.

Third is the issue of non-payment. “I have dealt with some of the larger (off-shore) programs out there and still I had to fight tooth and nail in order to get paid,” Schneider said. “You have no recourse if you get burned.”

Prescription Drugs

Because there are no price caps on prescription drugs in the US, there is a surging demand for drugs shipped from other countries. A September 2003 Harris Interactive poll found 7 percent of its US respondents already purchase drugs from other countries, and 48 percent said they’ll do it down the road.

Who’s buying? Twelve percent of online households now buy some prescriptions on the Internet, reports Forrester Research. They’re older, more affluent and almost 50 percent more likely to be retired than offline-only purchasers. A Families USA study found that prices for the 50 medications most used by seniors are rising at three times the inflation rate. That’s why 44 percent of Medicare members who buy prescriptions buy some online.

Meanwhile, drugstore affiliates are making substantial incomes, often more than $2,000 per month. “Those are the private entrepreneurs in the United States; they’re all American,” said David Mackay, executive director of the Canadian International Pharmacy Association.

While the spammers get most of the attention, most of the online drug market is mundane in nature. Even WheatenRescue.org, a Houston-based dog rescue group, used an affiliate link to Drugstore.com to help finance its efforts. The money didn’t pour in, but “we got a little bit from it,” said Director Gwen Arthur.

The American Medical Association classifies online questionnaires as generally substandard medical care, and the US Food and Drug Administration agrees. That’s why some online pharmacies are now requiring visits to local doctors. Still, a PharmacyChecker.com evaluation found 33 percent of online pharmacies don’t require an original prescription. The report also noted that half of foreign online pharmacies don’t have a verified license to dispense drugs.

Counterfeit drugs will continue as long as copycats can be made. A recent investigation by Dallas TV station WFAA found these copycat drugs, sold under the brand name of the drug they mimic, were 78.6 percent and 92 percent less potent.

Online pharmacies must follow the regulations of and be licensed in their country of origin. Search engines such as Google, Overture, Yahoo and Microsoft’s MSN have recently started policing the market themselves, screening for and dropping advertising from unlicensed pharmacies. Still, half of foreign online pharmacies don’t have a verified pharmacy license to dispense drugs, reports PharmacyChecker.com.

“States are looking at taking action against the search engines and sites that allow (illegal) operations, but there are no guidelines for affiliates that advertise them,” said Carmen Catizone, executive director of the National Association of Boards of Pharmacy. “And I don’t see any legislation coming down the pike to regulate that advertising.”

Drugstore affiliates should pick their partners carefully. Check the drugstore’s home page for licensing information (usually at the bottom). Work with sites that have previous-prescription policies. Work only with sites headquartered in developed nations with strict drug regulations. To be sure, there’s still the risk of partnering with a fly-by-night operation more interested in profits than in providing safe or real products.

Adult Entertainment

Seventy million people worldwide visit at least one adult Web site each week. In the US alone, 36.3 million checked out adult sites in January 2004, reports Nielsen//NetRatings. As many as 10 million plunked down $20 to $40 for monthly subscriptions. Most are men, but there’s a growing number of women. For this new generation, adult content is no longer looked at as risque; it’s looked at as a choice. “Frankly, the youth of America is laughing at us old fuddy duddies,” Walters said. “I talk to some of these young Webmasters who aren’t shy about their bodies, their sexuality or fetishes. This new generation is driving a sexual revolution, to be sure.”

Still, a societal bias persists. “Oftentimes journalists will have a headline that says, ‘Pornographer Gets Busted.’ But they neglected to say in the headline that it was a child pornographer, someone who was doing something illegal,” said Jay Kopita, vice president of YNotMasters.com. “There are plenty of people that are doing it legally, but they lump us all together. We’re up against a distorted public impression.”

Flying Crocodile, a hosting firm, estimates 9,000 US affiliates already participating in this space. Matt Mickelson, affiliate manager for XXXPressToys.com, AdultToyChest.com and NaughtyCards.com, breaks those into two categories: “One is affiliates with some kind of large membership, whether from a dating site, a gaming site or a porn site, and we’re a component within that membership section,” he said. “The other is the average guy who’s been in the search engine trenches for the past five, six, seven years, (who) has optimized html pages to feed the search engines, and is going after keywords and basically directing, or shuffling, traffic.”

There is some money to be made in this industry, but most affiliates won’t get rich. “The majority of the people in this industry in the US make $15,000 or $20,000 per year,” said Kopita, who polled adult Webmasters on the subject in 2002. “More than half the people who are involved in the adult Internet in one way, shape or form need to have another job to make a livable income outside of it. On the same token, I know several people in this industry who are more than likely self-made millionaires, and they’re still in their 20s.”

This industry also has its challenges. First, it’s become so large that existing sites dominate search engines and online marketing, leaving little room for affiliates to squeeze in. “Going back six, seven years, you were able to make money as an affiliate in the adult sites,” said Schneider. “However, they’ve reached such a saturation point where you can’t make anything unless you’re in the top one or two tiers.”

Then there’s an uncertain legal climate. Even though the industry has a certain amount of free speech protection, it’s still beefing up its defenses. That means warning labels, age verification, and records that affirm that the model is 18 or older for all photos on the site. Even banners downloaded from an affiliate program are subject to age verification laws. Since affiliates must get the records from their merchants, it’s imperative to work with sites that have them all.

The adult industry does offer a fast track to technical skill. It was the first to launch widespread affiliate programs, and has remained on the cutting edge for streaming video, pay-per-view content, coercive click conversions and community publishing. “There are still new innovations coming out all the time,” said Kopita, who also heads the CyberNet Expo, a San Diego-based adult Webmaster convention. “Something that takes a week or two in the rest of the world, takes a day here.”

The secret to success in this industry still lies in the most fundamental small business tool: a good business plan.

More than Money

In the end, it may be the potential risks as much as the money in these industries that make them so desirable for some affiliates. “They’re willing to take the risk that some public company is not willing to take,” Walters said. “The reason that people can be successful, and that the small guy can make big bucks, is because these industries are tumultuous.”

JENNIFER MEACHAM, managing editor of Revenue, has been writing about business and technology for more than a decade. She was named the Region X Journalist of the Year by the US Small Business Administration in 2002.