Wired reported “On Tuesday(September 7), NBC’s Today show kicked off a week-long promotion for Brown’s Da Vinci sequel by airing the first of a series of clues to the thriller’s plot, in the form of a tour of a real-life biological research facility nicknamed the “Death Star” because it houses dead animal specimens…. “But on Wednesday morning, September 8th, the top Google search result for “death star research” — the logical query — would bring you no closer to unraveling the Lost Symbol mystery. Instead, it produced a malicious website that uses pop-ups, mouse-trapping and a well-executed fake virus scan to trick you into installing a Windows executable that will screw up your computer pretty badly.”

The article continues that “an analysis by Panda(Antivirus) concludes the rogue business is making as much as $34 million a month through (these types of) tactic(s).”

That’s a lot of money for a rogue Website. Is any of this a problem for the Today show or Dan Brown’s marketing efforts? Probably not. But consider the past.

In the most extreme incident, in January 2007, of an Alternate Reality Game gone wrong, “Cartoon Network, acknowledged placing devices containing magnetic lights throughout Boston as part of a national promotional campaign for its Adult Swim animated show “Aqua Teen Hunger Force.” In either a case of being too careful, or not watching enough Cartoon Network, “the subsequent discovery of suspicious packages resulted in the temporary closure of three main bridges connecting Cambridge, Mass., to Boston, in addition to sections of Boston’s Storrow Drive, I-93 and the Massachusetts Turnpike.”

As a result, the General Manager of Cartoon Network stepped down. “Turner Broadcasting System and Interference Inc. agreed to pay $2 million to make amends for (the) bomb scare in Boston, the Massachusetts attorney general said.”

Now certainly this totally unrelated incident is not of the same scale and magnitude as that infamous Alternate reality game. But since the $2 million was given freely and without court intervention, we still have little idea of any potential liability from alternate reality games. As the number and variety of these marketing ploys increases, and the “bad guys” trying to reap dividends from the search engine traffic, it is still a very viable upcoming question of law. And it is an area of gaming, and gaming law, for gaming lawyers to keep an idea upon.

3 for the B(usiness). #1 Always think in worst-case scenarios on any marketing ploy #2 Always have a “quick-exit” or “band-aid” approach if malicious third-parties try to “horn in on your game”.
#3 Have the PR, legal, and marketing department in communication PRIOR TO any advertising gimmicks or viral games that could eventually impact all three departments.

Jay Moffitt is a Tennessee attorney. The words on this blog do not constitute legal advice and no attorney/client relationship is created. Jay Moffitt does not claim a certification in this area of law and Tennessee does not offer a certification in this area.