Monday, December 15, 2008

Recent Trial Victory for Erik Syverson

We are happy to celebrate a recent trial victory. Just today, we received the news regarding a case we tried in the fall. The case involved former business partners haggling over high six figure securitized personal guaranties. The Court ruled that our client could pursue and enforce collection of the security interest in question for a business loan in default. So, we're happy to pat ourselves on the back and even more pleased for our clients' victory. If you are involved in litigation, make sure to retain an experienced trial lawyer.

Wednesday, December 10, 2008

Neck Deep in Litigation,

Quick apology - I have yet to post this month but my practice is so busy lately with new litigation matters that require immediate attention that I can't find the time. Hopefully, I'll grab a few minutes here and there as there are tons of stories of great import from the meltdown of Yahoo to the rising tide of internet defamation to endless and blatant copyright infringement of adult content and on and on and on. As I close out 2008, a banner year for my practice and this blog, I can't wait to see what legal stories develop and take hold in 2009. One thing is for sure, I will have fun blogging about it as an internet attorney.

Wednesday, November 26, 2008

We are One of the Top 50 Internet Law Blogs

I am honored and privileged to point out that this blog has recently been named as one of the top 50 internet law blogs. Please check out the list as there are many terrific internet law bloggers out there offering a whole range of opinions and ideas. This is an exciting time for internet attorneys given the wild west nature of the web and the law governing its use. Many thanks to Kelly Sonora and her efforts to illuminate internet law issues.

Monday, November 17, 2008

Communications Decency Act Section 230 Immunity

Whenever I am asked my opinion as to the future of the internet and where it is headed, I inevitably bring up the Communications Decency Act and Section 230 of the act which provides immunity to websites for the bad acts of their users. The competing interests are very compelling. On the one hand, immunity has allowed ground breaking innovation and, without it, we wouldn't have web 2.0 and sites such as Flickr, Myspace, Facebook and Youtube. Such sites would be mired in constant litigation for the bad acts of their users. Web 2.0 interaction and collaboration may cease.

On the other hand, anonymous and defamatory attacks are destroying the lives and reputations of thousands of individuals and small businesses online. My practice handles internet defamation cases every single day. Every employer or customer seems to "google" employees and businesses these days - and a certain percentage of the public is always going to believe outright lies, no matter how outrageous or anonymous.

I'd be interested to know where readers fall on this issue. One thing is for certain, when I am asked about Communications Decency Act reform, my one and only response to both website owners and defamed individuals and businesses is to write your congress person. Reform is coming, it is just a matter of who benefits most.

Wednesday, November 12, 2008

Victoria's Secret Bra Class Action?

Class action law firms may have a new favorite, implausible class action lawsuit to snicker at. A recent class action was filed against Victoria's Secret alleging that the iconic company's bras contain formaldehyde. Now, I don't dispute that this may or may not be true and that harm may or may not have been suffered. But, I don't get on the surface how this class could possibly be certified. It would seem to me that the claims and harm suffered would be way too disparate and unique for class status. I could be wrong, in the meantime, this may become my favorite case since the Barbie v. Bratz battle royal in Riverside.

Tuesday, November 11, 2008

Barbie Seeks Return of Bratz

Barbie v. Bratz, the ongoing 4 year legal battle royal out in the desert, aka Riverside, CA, took another recent turn. Los Angeles business lawyers have been following this case for years. The latest chapter pertains to Mattel's request that MGA not only stop selling Bratz dolls, but that MGA return all Bratz doll inventory to Mattel. Could make for an interesting Christmas shopping season, although, Judge Stephen Larson isn't likely to decide this issue until Santa has made his rounds.

Craigslist Cracks Down on Hookers

Craigslist recently announced that it will actively seek to prevent prostitution ads from appearing on its site. The company recently came to an agreement with a number of state Attorney Generals to make it more difficult for hookers to offer their wares online. Now, Craigslist will require any adult services ad to provide identifying details, such as credit card and phone numbers. Craigslist will also charge for any adult ads. This is ostensibly to enable law enforcement to track down and jail flesh peddlers and their Johns. Craigslist also agreed to pursue litigation against a number of internet service providers who have previously aided sex peddlers in circumventing Craigslist's own rules regarding adult ads.

Internet attorneys such as myself may be interested to see what kind of revenue streams Craigslist can squeeze out of this. I also wonder if this will put a dent in Craigslist traffic, seeing as how prostitution and escort ads seemed to drive a large chunk of traffic to the site. Constitutional lawyers may have an interest in this from a First Amendment perspective and commercial speech. We'll see how it shakes out.

Wednesday, October 29, 2008

When Copyright Infringement Pays

Yesterday, Google turned years of arguable copyright infringement on its part into the biggest book deal in history. How did it happen? Basically, Google started digitally scanning books a few years ago without the permission of authors and publishers. The publishing industry trade group took exception and filed suit on behalf of authors and publishers. The parties reached a deal yesterday that, in my opinion, is the deal of the century for Google. Read here for further details on the settlement. Think of the enormous revenue stream possibilities Google can spin off from an unlimited virtual, digital library.

Many wonder if this foreshadows a similar deal in the Viacom v. Youtube infringement case. Who knows but it perhaps illuminates Google's corporate strategy for growing their business opportunities.

Monday, October 27, 2008

New Federal Online Pharmacy Law

A new federal law will set wide ranging standards governing internet pharmacies that sell illegal controlled substances. Sites selling human growth hormone and steroids will be hardest hit. Internet lawyers have noticed that internet service providers now feel empowered to shut down such internet pharmacies hosted on their servers. Internet hosting companies such as GoDaddy and Register.com are already kicking such online pharmacies off their servers, even though the law was just signed by President Bush and will not go into effect for many months.

The law also requires online pharmacies to register with the DEA, a requirement previously only leveled against brick and mortar pharmacies. As a practical matter, consumers now will need a doctor's prescription in order to purchase drugs online. Also, a person caught violating the new law is subject to 10 years in prison - double the previous penalty for unlawful distribution.

What will the net effect of this be? Like many internet industries that come under regulation of some form, I suspect this law will force most online pharmacies to set up shop abroad, making enforcement impractical and expensive. The better policy from a law enforcement perspective may be to penalize the purchasers of unlawful controlled substances. Internet pharmacies definitely need to retain an experienced internet law firm for guidance on this new statute.

Wednesday, October 15, 2008

McCain Not Happy With the DMCA

We know that DMCA takedown notices walk a fine line between benefit and burden. On the one hand, DMCA takedown notices allow intellectual property owners an easy, cost effective way to protect their intellectual property in this rapid cut and paste internet world. Also, it insulates internet service providers from vicarious copyright infringement claims - as long as they follow the proper statutory procedures. And that means innovation can happen much quicker online.

But experienced internet attorneys also understand the dark side of DMCA takedown notices. That is, overreaching, improper and often perjerous DMCA takedown notices. I've blogged here on multiple occasions regarding the frequent and flagrant abuse of the DMCA takedown procedure and the need for reform. The result of such internet law impropriety is the removal of non-infringing content or fair use content from websites such as Youtube.

It looks like John McCain notices and he doesn't want to play by ordinary may be feeling the sting of abusive and over-zealous DMCA takedownDMCA rules. McCain wants an exception to the normal statutory time frame isp's are afforded for review of alleged copyright infringement. McCain staffers have complained that pro-McCain material, promoting McCain's campaign is being improperly removed from Youtube. McCain contends the normal 10 day time frame shouldn't apply to him because of the time sensitive and urgent nature of a presidential campaign. Sorry John, no exceptions for you. Maybe now McCain will give some attention to DMCA revision when he goes back to work in the Senate in a few weeks.

Friday, October 10, 2008

Intellectual Property Basics for Web Entrepreneurs

Internet attorneys are often asked by internet entrepreneurs about basic intellectual property issues. One common intellectual property concept that is often confusing for non-lawyers is trademark law and what it means and what it protects.

Trademarks are distinctive words or symbols used by individuals and businesses to identify the source of goods and services in the marketplace. Examples are "Coca-Cola" or "Pepsi". These are made up words created to identify the manufacturer of various soda products. Another common way to think of trademarks is that they identify brands of goods and services. Trademarks may be accompanied by symbols such as "TM". This puts the public on notice that the owner of the accompanying words and symbols claims proprietary and exclusive rights in such words and symbols to identify their goods and services. Trademarks can consist of words, symbols or a combination of both. The strength of a trademark depends upon its uniqueness and non-descriptive quality. Thus, made up words like "Pepsi" and "Coca-Cola" compel the strongest trademark protection.

For website owners, registration of their trademarks is crucial. Registration is accomplished through the U.S. Trademark Office. While trademarks are not created upon registration - that occurs upon their actual use in commerce - registration provides the trademark owner with numerous rights including the ability to protect their trademark from infringement. For example, the owner of a registered trademark may sue for infringement in federal court and obtain attorneys fees. This enforcement ability is not available without registration.

For website owners with a trademark appearing in their domain name, they can prevent other businesses and individuals from obtaining and owning similar or confusingly similar domain names. In some cases, a website owner may compel the competing or infringing domain to be transferred to them in a UDRP action, administered through ICANN and various arbitration companies.

At the very least, this quick summation illustrates the importance of registering trademarks for internet based e-commerce businesses.

Tuesday, September 30, 2008

Are Websites Responsible for Defamation Posted by Their Users?

As a lawyer operating an internet law firm, I am often asked whether or not websites are responsible for the content posted by their users. This frequently arises in the context of defamation. A business or individual is horribly defamed on a site like Ripoffreport or Citysearch or Yelp and the defamatory post achieves a high rank in Google natural search results for that particular business or individual. As a result, said business or individual experiences horrible fallout in the form of public shame and loss of business.

The defamed party obviously has claims against the poster/author of the defamatory content. However, many defamed parties wish to also sue the website that provided the forum for the wrongdoer and broadcast the harmful defamation to the world.

The bad news is that the Communications Decency Act (CDA), signed by Bill Clinton in 1996, provides broad immunity to websites for content posted by their users in addition to other torts. Of course, this law was passed well before the web 2.0 revolution which birthed a bevy of websites granting users the ability to post content and collaborate in ways never previously contemplated. Bottom line is that in most situations, websites are not liable for the bad acts of their users, including defamation.

Recently, the Ninth Circuit has given victims of defamation a little hope and perhaps signaled a shift toward further website responsibility in policing its users. In Fair Housing Council of San Fernando Valley , et. al., v. Roommate.com, LLC, the Ninth Circuit held that the CDA would not provide immunity to Roommate.com for violations of the Fair Housing Act and other state laws. The reason the Court gave was that Roommate.com participated in the bad conduct of its users by providing drop down menus for its users to complete - these drop down menus were used by Roommate.com to commit discriminatory housing acts.

So, there is finally some caselaw on the books - applicable at least in the west coast states comprising the Ninth Circuit - which suggests that websites may be held liable for the defamatory comments of users if the website editorializes or embellishes or legitimizes its users' comments in any way. I believe a number of these business ratings websites, identified above, may be held liable for defamation committed by their users because most, if not all, legitimize their users' posts in the form of stars or smiley faces or other avatars and/or icons.

If you have questions regarding internet defamation and the Communications Decency Act, contact an experienced internet defamation attorney.

Friday, September 26, 2008

Terrific SEO Expert Blog

Before I embark on my weekend full of football viewing, I want to quickly endorse what I have found to be a terrific resource for internet law attorneys. Michael Gray writes the GrayWolf SEO blog which does a tremendous job of breaking new and interesting developments related to SEO and explaining just how the hell Google works. Click on the title link to get there and dive into the world of SEO.

Wednesday, September 24, 2008

Copyright Law Basics

As an internet lawyer, I often deal with legal issues centered upon copyright. That being said, many times clients are very confused as to what is and what is not protected by copyright.

Copyright is a legal theory which grants the creator of an original work an exclusive bundle of rights flowing forth from such creation. Copyright does not protect ideas, but rather, it protects the expression of ideas in a fixed tangible form. Thus, copyright will protect creative works fixed in such tangible forms as books, cd's, dvd's, computer code, paintings, writings and drawings. In general, copyright is the right to make copies of a given work. However, a whole bundle of rights comes with copyright in America. A copyright holder has the right to be credited for the work, to determine who may make derivative versions of the work, who may distribute copies of the work, who may charge money for exhibition of the work, who may publicly perform or display the work. The public policy motive behind copyright is that governments wish to encourage the creation of new forms of expression by granting authors of works the ability to control the exploitation of such works and make money from such works.

In America, copyrights are created upon creation of a work. However, formal registration with the Librarian of Congress is required as a precedent to enforcing copyrights in a court of law. In other words, you can possess a copyright without formal registration but you can't sue for copyright infringement without a proper registration of the work. Many countries around the world do not require formal registration as a pre-requisite to enforcement.

The term of copyright generally lasts between 50 and 100 years after the author's death.

There are many exceptions and limitations applied in copyright law. The most notable being the "fair use" exception to a copyright holder's exclusive bundle of rights. If the doctrine of fair use applies, no infringement will be found. The internet and new distribution platforms such as peer to peer networks have rapidly changed the copyright landscape. Copyright holders generally advocate for an expansion of copyrights and legal mechanisms to aid in the identification of digital, internet copyright infringers. Many internet populist and digital freedom advocacy groups advocate for expanded application of the fair use doctrine.

If you have further questions regarding copyright and the impact the internet has upon copyrights, contact an internet law attorney for more information.

Tuesday, September 23, 2008

Are We Going to Get International Internet Copyright Regulation?

The Bush administration is negotiating a possible international internet treaty which would provide copyright holders with increased protections. Not surprisingly, consumer groups and internet companies led by Google are opposed to this potential treaty. The Bush administration is talking with Japan and the European Union regarding the treaty. However, most savvy internet attorneys will tell you that Japan and the EU is not where the majority of nefarious copyright infringement occurs. China, Russia and the former Soviet block countries rule the roost when it comes to copyright infringement.

Google is attempting to insert an exclusion from the treaty for the sale of copyrighted movies and music on the internet. Obviously, as Google becomes a larger and larger distributor of content through Youtube and other properties, the more opportunities for infringement arise. Youtube is already up to its neck in internet based copyright infringement lawsuits. The last thing Google wants to deal with is even stricter copyright infringement oversight and procedures. Currently, companies like Google are required to set up procedures to deal with DMCA take down notices provided by content owners. Simply processing the volume of these notices must add millions to Google's expense sheet. Think of the potential cost to be shouldered by internet companies in the wake of an international treaty.

The real point to take from this proposed treaty is that internet lawyers and internet law firms now have to take a global view of copyright infringement in a way that simply wasn't imaginable even 10 years ago. The proliferation of broadband, distribution platforms and bit torrent technology has led to an international copyright infringement epidemic. This technology makes infringement easy and, currently, there is no international regulation so, in most countries, there is no downside or risk for infringers. This is rapidly changing however, and not just due to this potential treaty. Courts in both America and Europe have become more responsive to the needs of internet lawyers in obtaining the identity of infringers.

In America, the current weapon for internet litigators is the John Doe lawsuit. Armed with only an ip address and evidence of an infringement, internet lawyers must file a lawsuit against unidentified defendants, and then discern the identity of such defendants by issuing subpoenas. Perhaps this new treaty will provide a mechanism whereby internet law firms no longer need to utilize the cumbersome john doe lawsuit procedure and, instead, may obtain infringer identities outside of the litigation context.

Bluegrass State Seizes Gambling Domains

Gambling is regulated, by and large, on a state by state basis. A state judge in the bluegrass state has taken the unprecedented action of seizing over 100 gambling site url's. The basis for the Court's authority appears to be an utter mystery. As a practical matter, it won't make much sense for those who have lost their domains to fight it. Very, very simple to register a similar domain in another country and host the site on servers in a foreign jurisdiction beyond the reach of American courts. My bet is that these sites are back up and running in a matter of hours. Interesting that most opposition to gaming sites comes directly from state governments that sponsor or endorse various forms of gaming. I guess the moral objections to gaming go out the window as long as the state can get its hands on the money.

Tuesday, September 16, 2008

The Future of Gambling Websites - Web 3.0 and Beyond

Gaming websites became extremely popular in the late 90's and early 00's. The ease of use of these sites was a particularly strong draw. The sports fan no longer needed to go through the hassle of finding a guy on the street to take his action on the big game.

George Bush and Congress effectively killed online sports gambling in America by the passage of the SAFE Port Act, outlawing banks from entering into transactions with online gaming sites. The result was that many online gambling sites suspended real money operations.

As always, e-commerce is an extremely adaptive animal. The next generation of gaming sites is now surfacing and beginning to make a dent. The business model has changed from the site taking straight, real money bets. Now, we see sites popping up offering user against user wagers, aggregate weekly and season pick 'em type sites and sites awarding points or fictional dollar totals for correctly picking games. Usually, points or fictional dollars are redeemable for various prizes.

These new sites avoid the current gambling laws because, usually, they do not require the player to wager any real money. Thus, a key element in the definition of illegal gambling is missing. I also find it interesting that these new gaming sites are true web 2.0 and web 3.0 companies, offering collaboration and micro-social networks. Will these sites change the face of sports wagering? That remains to be seen.

If you have questions about the legality of sports gaming websites or any other type of e-commerce business, contact an experienced internet law attorney.

Great Internet Law Blog

I love to promote other creative, innovative internet lawyers out there. I recently stumbled upon one such fellow's blog. Mr. Evan Brown puts out a terrific internet law blog which does a great job tracking case law developments. I found it very helpful and informative. I am sure readers of my blog will enjoy it as well.

Friday, September 12, 2008

Virginia Spam Law Struck Down

Virginia internet users sick of email spam may be depressed today. Apparently, Virginia's tough spam law goes a bit too far. That is, it is a bit too broad in outlawing spam. Why is that? The Virginia statute bans anonymous emails and that, according to the Virginia Supreme Court, is an unlawful restriction on First Amendment rights.

What constitutes lawful commercial email as opposed to spam is a fine line. Anyone conducting mass commercial email solicitations must have an experienced internet lawyer review their campaigns. I have been noticing an increase in jail time and penalties for those convicted of spamming. Judges are starting to regard spam as a more serious offense.

Myspace Music Launching Soon in the Wake of Muxtape

Myspace is launching its new free music platform. This will allow users to organize and listen to music from the big U.S. music labels free of charge. The labels are hoping to recoup money from lost cd sales by monetizing ad revenue on the site. I'm not too optimistic Myspace music is going to deliver significant revenue from advertising. We'll see how it is deployed. If ads are inserted into free content - then I can see it working to some extent. At least advertisers could be assured their message is being heard. But if the advertising model is simply pay per click, I don't see it generating much revenue. Fraudulent clicks are a huge problem in the pay per click model. Also, are users going to leave the free music content to watch advertising? Me thinks not.

It is a shame that Muxtape was shut down by the RIAA, it seemed like a much cooler, user friendly and interactive site. I wonder if Myspace and Newscorp had anything to do with that?

For further information regarding pay per click advertising and other online advertising revenue streams, consult an experienced internet law attorney.

Thursday, September 11, 2008

Antitrust Noise Surrounds Google

Real quick, I found it very interesting that the U.S. Department of Justice has hired a top lawyer to investigate Google with regard to anti-trust concerns. It is not clear whether this relates only to the deal with Yahoo to use Google's search technology or if it will encompass Google's overall business. Google is certainly getting into Microsoft territory, the last sexy tech anti-trust case.

Depending on who you ask, Google now controls 70% to 85% of the online search advertising market. The antitrust drum will only continue to get louder for Google. Perhaps we'll see a break-up like the baby bells in telecom. Only time will tell.

Friday, September 5, 2008

Internet Directories and Ratings Websites,

I have been in trial this week, so I have been neglecting my blog but want to fire off a quick post about a new issue I have spotted regarding internet directories.

Almost everyday, I receive calls from businesses and professionals upset that they have been defamed by an anonymous reviewer on an internet business directory/ratings service. Citysearch is one such prominent directory, but there are specialized directories for lawyers, doctors, dentists and every other kind of profession you can imagine. It is very difficult, under the Communications Decency Act, to hold the website liable for defamation. As such, most websites refuse to remove defamatory, anonymous posts. Unfortunately, those posts remain and often rank high in Google search results.

What is a business or professional to do? Recently I have found a great deal of success in "convincing" website directories and ratings sites to remove defamatory posts. Not because of the defamation angle, but based upon the theory that such sites do not have my clients' permission to use their name, likeness and trade names for profit. Frequently, these sites generate revenue by posting ads upon my clients' profiles. I call that misappropriation of likeness for profit and an unfair business practice. Should a business or professional be forced to associate with a website directory against their will? That strikes me as wrong. This may become a powerful new tool in combating anonymous internet defamation on directories, we shall see as it is yet to be fully tested in a court of law.

If you are the victim of internet defamation, contact an internet defamation lawyer for information regarding your rights.

Wednesday, August 27, 2008

Inventing Things While Employed - a Sticky Situation

I have been blogging a bit lately about my favorite case of the year, the Mattel v. MGA battle royal pitting Barbie dolls against Bratz dolls. Bottom line, Bratz were created by a Mattel employee, Carter Bryant, while he was employed by Mattel. A jury determined that MGA had stolen the Bratz idea from Mattel and interfered with its contractual relations with Bryant.

Evidently a man who created the most popular and profitable widget on Facebook was not following the Mattel case. Dave Maestri created Mob Wars which makes millions per month on Facebook. Problem is, his employer, the Social Gaming Network alleges that he created it while working for SGM. If true, SGM will likely end up owning Mob Wars under contractual rights or the work for hire doctrine which states, in general terms, that intellectual property created by employees belongs to the employer.

The lessen to take from this - if you have a snappy new idea make sure to consult an experienced intellectual property lawyer to ensure that your million dollar idea does not end up being owned by your employer.

Thursday, August 21, 2008

Mattel Seeks $2 Billion From Bratz

In the trial of the year, the mighty John Quinn scored a huge victory for Mattel in its lawsuit against MGA and its Bratz line of dolls. Quinn was able to convince jurors that MGA stole the idea for Bratz from Mattel. Basically, MGA has been promoting and selling Mattel's intellectual property all these years while racking up huge sales numbers.

And now the real interesting part of the trial starts - damages! Mattel wasn't shy and recently asked jurors to award Mattel $2 Billion Dollars. Got to hand it to Quinn Emanuel on this one. I wonder if they took this one on a contingency?

In any event, this case serves as an important lesson to companies and employees alike. If you have a great idea for something that you want to own or market, make damn sure you are not under an employment agreement that grants your employer ownership of your inventions and designs.

Gmail to get a whole lot safer

Gmail has apparently become a whole lot safer and secure for its users. Users can now choose to encrypt all of their email messages using SSL technology. Without the SSL feature, Gmail was pretty darn easy to hack into according to techies.

This is terrific news for e-commerce and consumers alike. Hopefully, this will help combat the rash of identity fraud occurring around the world. At the very least, consumers' credit card info may be more secure when purchasing goods and services online.

If you have questions or concerns regarding the confidentiality and security of your Internet communications, contact and Internet Law Attorney for more information.

Tuesday, August 19, 2008

The RIAA Strikes Again

The start-up music website Muxtape has been shut down voluntarily due to concerns over the RIAA - the music industry's trade group and chief illegal download cop. Muxtape allowed users to make mash-ups and mix tapes - just like you did when you were a kid. I reported on Muxtape a few weeks ago and have been following its progress. Apparently, the site's administrators tried to police infringing user activities to no avail.

I find it telling that while the music industry continues to rack up victories in and out of court on copyright infringement grounds, these victories have proven pyrrhic as music sales continue to dwindle and record labels continue to downsize until they disappear. The digital revolution and more specifically, web 3.0 collaboration and sharing, is here to stay. Until content providers figure out how to work with web 3.o ventures instead of against them, the music industry will continue to deteriorate until it is no more.

To find out more about web 3.0 and copyright laws, contact and Internet attorney.

Wednesday, August 13, 2008

American Apparel - What an Innovative Company

I was lucky enough to be given a tour of one of America's great, young and innovative companies yesterday. Shawn Shahani of American Apparel gave me a tour of the headquarters and factory right here in downtown Los Angeles. Shawn is a real dynamic, up and coming marketing guru and I have faith that he will help lead the web 3.0 revolution with regard to marketing and branding of consumer products.



The place is massive and everything is done on site, from internet marketing to cutting fabric to shipping and freight. The company is the definition of vertical integration.



On a human note, I was impressed with American Apparel's community involvement, worker programs and philanthropy. Seemingly at every turn, AA is trying its best to make the world a better place and lessen the impact of manufacturing. Some examples include an on site medical office, green energy company vehicles and the Legalize L.A. campaign calling for immigration reform.



As an Internet lawyer, I was consumed with AA's innovative marketing techniques, particularly their views regarding globalization and social network advertising. Few companies, if any at the moment, understand how to get the most out of internet advertising, more specifically monetizing Facebook and Myspace advertising. I came away and impressed by this dynamic company and its online advertising efforts.

Tuesday, August 12, 2008

Olympics Newest Focus of Copyright Infringement

So the Olympics recently got underway and NBC's attempts to curtail copyright infringement have been utterly pathetic - and also predictable. When will content providers wake up and plug into web 2.0 and what will become web 3.0? Content providers legal whack-a-mole strategy against infringers has never worked and never will.

NBC has seemingly taken an overprotective approach to their Olympic footage, the other network news shows can't even show highlights. Instead, NBC's competitors are relegated to still photos.

NBC's own internet coverage apparently sucks so bad that the viewing public has turned to illegal bit torrents and pirates. Pirates have outclassed NBC's Olympic internet coverage by offering HD versions of many events before NBC even gets them to air. Come on NBC, outclassed by a bunch of kids in their parents basement. Anyone else not surprised at this result since these games are taking place in China - you know, the country that doesn't give a damn about United States Intellectual Property laws.

If you have any questions regarding copyright issues and the internet, contact an experienced internet law attorney.

Wednesday, August 6, 2008

Anonymous Online Defamers Revealed

As an Internet Lawyer, one of the most common type of cases I handle is anonymous, online defamation. The Internet and its wealth of message boards and social networks has led to a boom in defamatory statements. The reason is simple. Most anonymous posters fear no repercussion because websites don't require any personally identifiable information. Posters are not even required to register a valid email address. A screen name can be made up instantly and the defamatory post is there for all to see. If posted on a message board or website with a high Google page rank, defamatory statements will rise to the top of Google searches for you or your business.

Now, one very easy solution to the epidemic of Internet defamation would be to require personally identifiable and verifiable information from posters. This could be done very easily by requiring credit card information. Hell, this is how they verify your identity at the airport when checking in. And some websites such as Avvo.com are already employing this strategy.

Recently, I was encouraged to see that the Plaintiffs in the AutoAdmit case - a case charging defamation against anonymous posters - were seemingly able to come up with the identity of some of the John Doe defendants. Take note that if you are the victim of Internet defamation, finding the identity of your poster may be an expensive proposition and frequently can only be found pursuant to subpoena power obtained only after filing a lawsuit.

If you are the victim of Internet defamation, you should contact an Internet defamation attorney for more information about your rights.

Monday, August 4, 2008

Cablevision Wins Big Victory for DVR's Hosted on Central Servers

Content providers such as movie and tv studios sued Cablevision for copyright infringement for their innovative DVR technology which stores recorded content on remote servers rather than the physical DVR box sitting in your home. Today, the 2nd Circuit ruled in Cablevision's favor by holding that such technology does not infringe upon content producer's rights. This is an ancient fight in copyright circles by now. First, it was the Sony Betamax case in the 1980's. Then it was the RIAA and music industry crusades against online file sharing, most notably in the the Napster case in the 9th Circuit and then the Grokster case in the Supreme Court.

When will content providers realize they simply cannot control distribution and user experience the way they did in the analog years? It seems content producers are simply wasting their time and money in Court because whether they win or lose, collaboration and sharing of content is not going to stop. The consuming public has made that clear. From my perspective, the big time corporate content producers are panicking and may soon find themselves suffering the same fate as that of dinosaurs. If the studios had a smart exec or two, they might be able to figure out how to embrace digital collaboration and sharing and, gasp, actually profit from it.

If you are facing copyright infringement claims relating to digital content sharing and collaboration, contact an experienced copyright attorney for advice.

Friday, August 1, 2008

Cell Phone Early Termination Fees May Be Illegal

A California court has recently tentatively ruled that Sprint's early termination fees charged to consumers cancelling their cell phone contracts prior to maturity are illegal. The ruling would require Sprint to return some 18 million to consumers affected and cease collection efforts on about 54 million in outstanding fees. This is the first such ruling among dozens of early termination fee cases around the country. Rather than face an adverse ruling, Verizon recently settled a similar case.

One large issue is whether or not California law is applicable to such charges. Some argue that these charges are actually telephone rates that fall under the purview of federal law and the FCC. It is hard to buy that argument though, as early termination fees are not connected to cell phone service but rather a penalty provision that is a creature of contract.

In any event, if you question early termination fees or illicit cell phone charges, you should contact a class action attorney for information about your rights.

Wednesday, July 30, 2008

Youtube sued again, this time Italian style

No shocker here, Google once again sued for Youtube's ubiquitous copyright infringement. Google really shouldn't be surprised, when you buy a business built upon blatantly violating copyright laws, the lawsuits are going to pile up. The smartest guys in the world are Youtube's founders, who bailed with millions and no consequences.

Once Google bought Youtube, it was like a green light for copyright holders to file suit. However, it remains to be seen if many of these suits are simply negotiating tactics to be used to cut favorable distribution and advertising deals with Youtube and Google.

The latest suit was filed in Italy by a large conglomerate known as Mediaset. The suit presents a great opportunity to see how strongly the Italian courts enforce the European Union's copyright legislation. Most believe that the EU provides greater protection to copyright holders. That does not bode well for Google, nor does the home court advantage that Italian justice sometimes provides.

For more detail on the rights of copyright holders and the viability of video sharing websites, contact an experienced Internet Lawyer.

Securities Class Action Lawsuits on the Rise

Today the Wall Street Journal commented on a recent uptick in securities class action filings. This is not surprising given the level of fraud in the financial markets sector as well as the credit crunch. Unfortunately, plaintiffs must often clear extremely high hurdles in order to succeed in such cases. These hurdles have been placed by pro-corporate legislation as well as caselaw. That being said, consumers and homeowners have been financially devastated by the credit meltdown and collapse of mortgage backed securities. As such, a number of viable class action claims against companies such as Countrywide and Indymac may pop up. Banks that perpetuated this system of fraud and greed are also vulnerable to class action claims. If you are either a shareholder of such companies or a depositor or homeowner victimized by the practices of banks and lending institutions, you should contact a class action lawyer to explore your rights.

Tuesday, July 29, 2008

Web 2.0 websites continue to face DMCA pressures

Web 2.0 is often about collaboration or re-working pre-existing works into new forms of expression. However, this innovation and convenience needs to be counter-balanced by respect and understanding for intellectual property issues. Often, creative individuals produce innovative programs and websites without giving thought to intellectual property concerns such as copyright infringement and the DMCA. Usually, copyright owners sit back until a site starts to generate revenue. Once a site becomes profitable, then it is worth the copyright owner's effort and money to launch a team of lawyers into cyberspace and sue a website for infringement.

Recently, a number of mix tape websites are coming under fire. These sites allow users to make mp3 mix tapes, reminiscent of the mix tapes kids used to make in the 80's using cassettes. Muxtape has been experiencing these issues and residing in copyright limbo. Website owners and entrepreneurs should consult with a copyright lawyer or intellectual property law firm to discuss the risks and rewards that may accompany a new website venture such as mix tape sites.

Monday, July 28, 2008

Protect your e-commerce websites from liability

A quick practical tip today. If you are running an e-commerce business or simply posting a blog with regularity, you need to obtain insurance. Insurance coverage is available for many online businesses and many policies may cover legal claims often arising from e-commerce activity. I frequently see e-businesses facing copyright infringement, trademark infringement and defamation claims. Sadly, many do not have a business insurance policy or umbrella personal policy to provide indemnification and defense of such claims. If you are operating an e-commerce business or blog, make sure you consult with an internet law attorney for strategies on how to limit your liablity and protect your assets.

Tuesday, July 22, 2008

Viacom Gets Aggressive With Copyright Claims

So it's an increasing problem under the DMCA that I have addressed before. Fraudulent or false DMCA takedown notices or false copyright ownership claims. This may be the new plague of web 2.0 because the DMCA and various internal website copyright review mechanisms encourage false or overly aggressive claims of copyright ownership. That is because there really is no viable penalty for such action. Damages are usually too minimal for false claims under the DMCA. Furthermore, the DMCA does not even require internet service providers and websites hosting content to perform any due diligence with regard to false copyright claims.

Recently, Viacom was the latest large company to flex its copyright muscles. Viacom claimed copyright ownership in a video appearing on Youtube even though, apparently, no Viacom owned works appeared in the video. Perhaps this was the result of a glitch in Youtube's review and matching software. Nevertheless, I have noticed this occurring all too often as innocent and proper copyright owners have their works removed from the web under the DMCA.

How do we solve the problem? Increased statutory damages for false claims under the DMCA to discourage overly aggressive claims of copyright as seen by Viacom. Also, an explicit requirement of registration of a copyrighted work in the United States Library of Congress would be helpful. This would make it simple to verify the validity of a copyright claim, or at least that such a claim was valid on its face. Then, the third prong of my plan would be to require due diligence on the part of websites to confirm the validity of a copyright in response to a DMCA notice. This could be done with a simple online check of the United States Copyright Office registration records.

If you feel that you have been victimized by a false copyright claim or improper DMCA takedown notice, contact a Copyright Attorney to understand your rights.

Thursday, July 17, 2008

Barbie Wins Trial of the Year,


Well, the news came down today that Barbie beat Bratz in a knockdown, drag out intellectual property war. Some may call it the case of the year. Basically, Barbie's Mattel Corp. was able to prove that the creator of Bratz, Carter Bryant created the Bratz doll line while working at Mattel. Why does this matter? Because all intellectual property created by employees or independent contractors at the direction of a company belongs to that company. This is the work for hire doctrine and it is very important for employers, especially internet and e-commerce companies employing web developers and software engineers, to have a firm grasp of this doctrine. In this case, the jury essentially ruled that Barbie owns Bratz to some degree. The damages portion of the trial will take place later but you better believe Barbie is going to get a ton of cash in the form of royalties, profits etc.

If you are an E-commerce business or employer, make sure to contact an experienced copyright lawyer or trademark law firm to protect your rights when it comes to works for hire.

Wednesday, July 16, 2008

Spammer gets the Slammer

It is of prime importance for E-commerce businesses to understand commercial email laws. Violators of the CAN-SPAM Act can face serious fines and jail time. The latest example of this just went down in New York, where a young serial spammer named Adam Vitale got whacked with 30 months in federal prison and $180,000 in restitution. The judge, SDNY's Denny Chin offered stern words for the young spammer calling spamming "serious criminal conduct".

See here for a copy of the indictment.

The message is clear, the judiciary views spamming as serious criminal conduct. It is vital for businesses sending out commercial email to consult with an experienced internet lawyer and/or law firm for advice on how to safely conduct email marketing campaigns.

DMCA Takedown Notices Out of Control

Lately, I have noticed an alarming number of improper DMCA take down notice requests proliferating cyberspace. What is a DMCA take down notice? An owner of a copyrighted work may request that material appearing on the internet that infringes upon the owner's copyright be removed. This is accomplished by simply sending a short, form letter called a DMCA take down request to the website's hosting company. In short, the letter needs to identify the infringing material and state under penalty of perjury that the sender of the letter owns a valid copyright in the material allegedly infringed upon. Once received, the hosting company may escape liability for contributory copyright infringement by removing the material. Then, the burden shifts to the website owner to file a counter-notification within 10 days if he/she believes the DMCA take down notice is erroneous or improper. The ball then goes back into the court of the alleged copyright owner to file suit in federal court.

The problem with this system is that many, many content owners attempt to flex their muscles and overexert their copyrights - if they even have valid copyrights in the first place. This leads to thousands of unnecessary take down notices and abuse, not to mention interruptions of valid E-commerce websites. Hosting companies conduct no due diligence and are not even required to do so under the Digital Millenium Copyright Act. Thus, someone with absolutely no copyrights whatsoever has carte blanche to get your site pulled off the internet on a whim.

Recently, an internet content provider had its content pulled from Youtube due to an erroneous DMCA take down notice filed by Viacom. Now, the DMCA does provide for damages in the event of wrongful take down notices but, the prospect of suing large multi-national corporations is not too appealing. Also, suing individuals for wrongful takedown notices is most likely not a very economical decision given the expense of litigation.

My proposed solution is to place at least a minimum requirement of due diligence on the part of internet service providers to make a good faith determination of whether or not the person or entity filing the DMCA take down notice has a colorable claim of copyright. If you have questions about copyright issues, contact a copyright attorney for advice.