Friday, November 20, 2009

FTC Changes Advertiser Rules for Endorsements and Testimonials

This December, advertising and marketing will become more uncertain for many businesses. That is because the FTC is changing 30 year old rules on advertising with regard to endorsements and testimonials. The changes relate to transparency in disclosing real material connections between the advertiser and endorsers. This extends to internet marketing and the recent explosion in blogger rating and blogger testimonials for consumer products. Celebrity endorsers also face personal liability for the first time. Furthermore, important safe harbors such as "results not typical" no longer exist.

How the FTC chooses to enforce these new rules remains uncertain. However, internet marketers, advertisers, bloggers and celebrity endorsers need to retain a top FTC compliance lawyer to review all marketing materials before any new campaigns go live.

Thursday, November 19, 2009

Facebook Sued in Class Action

More details to follow but suffice to say, it looks like Facebook needs to take a harder look at its business partners. A federal class action lawsuit was filed against Facebook and Zynga over online game ads that Zynga propogates over Facebook. Apparently, the ads are not only deceptive but incur real financial injury to consumers in the way of unauthorized and disguised charges. This problem will only continue to grow as websites like Facebook struggle to figure out how the hell to make money before their venture capital dries up. For more information on internet law issues, contact an experienced internet law attorney.

Wednesday, November 11, 2009

Email Marketing Gone Wrong

Website Tagged.com got tagged hard by New York's Attorney General, fined half a million for deceptive email practices. Tagged.com appears to have stolen contact lists and then sent deceptive SPAM emails to unsuspecting web users inviting them to view photographs of friends. How lame can you get? Tagged.com is lucky to get off so light, spammers have been doing jail time lately.

Internet marketers, E-commerce sites and email marketers need to consult an experienced internet law attorney before launching any promotional campaign. Otherwise, an exciting promotion can go wrong and cost the website owner or email marketer thousands of dollars in fines and/or civil damages.

Wednesday, September 30, 2009

The DarkNet is Coming

The next internet revolution will likely be increasingly easy to use darknets. Darknets are like little tunnels where one can conduct internet activity and communication while remaining off the grid if you will. More specifically, it is like a private little club where outsiders cannot monitor an internet user's behavior. Darknet users effectively set up their own private url's to carry out secretive business operations or potentially nefarious activities.

Heretofore, only techies had the knowledge to set up their own darknets. But, Hewlett Packard is on the verge of releasing a browser based darknet which will consumerize darknets and their usage.

The legal consequences of this are endless and interesting. It is self evident what this means for intellectual property infringement - it makes theft of content anonymous once again. What about internet demation? I predict it will skyrocket as anonymity rises. What about cyber crimes like theft of private consumer info and bank accounts? Internet marketing could see huge rises in click fraud. And on and on and on......

Always a good idea to consult experienced internet lawyers when analyzing how new technology may impact existing laws and consumer behavior.

Wednesday, August 19, 2009

Google Can't Hide Identity of Defamers

As an internet defamation lawyer, I was happy to see this report on Good Morning America. Those who are defamed online often need to unmask their anonymous defamers. I have been successfully unmasking anonymous internet defamers and bloggers for years.

To me, the shocking part of this story was that Google apparently fought Liskula Cohen's efforts to unmask her defamer. In my experience, internet service providers such as Google understand that it is usually pointless to oppose subpoena requests for server logs and identifying information.

In any event, citizens have no need to sit by idly while their reputation is shredded by anonymous attackers and this case simply reinforces this point.

Twitter Fails Miserably in Effort to Trademark "Tweet"

As I discussed a few weeks ago, Twitter's efforts to trademark the term "tweet" seemed doomed to fail for a number of reasons. It appears the United States Patent and Trademark Office agrees and has denied Twitter's application filed by the firm of Fenwick & West - kudos to Sam Johnston's blog for reporting on this. "Tweet" will not become the intellectual property of the latest social media darling.

There is a lesson to be learned here. If you own a website and want to build out your brand, consult an experienced intellectual property lawyer from the get go. Finally, use the damn terms you want to trademark on your own site. I know this seems obvious but Twitter didn't even use the term "tweet" on its own site, instead referring to tweets as "updates". That fact just blows my mind.

Monday, August 17, 2009

Data Breaches Threaten Viability of E-Commerce

Today, federal prosecutors out of the Newark office filed an indictment relating to the largest data breach case in U.S. history. Read here for more data theft details.

Hacking is serious stuff and companies maintaining private, consumer information on their servers need to fully understand the regulatory landscape. To this end, it is wise to hire an experienced internet lawyer in order to put into place the appropriate data breach guidelines and consumer notification programs for private businesses.

Monday, August 10, 2009

In-n-Out of Trademark Litigation

Those of us in Southern California know and love In-n-Out burger - the go to burger joint around these parts. But In-n-Out has decided to stay relatively small and local. You can't really find the burger joint outside of California. This regional approach may encourage rivals in other parts of the country to negligently or knowingly take a run at using In-n-Out's signature trademarks in commerce.

Trademark rights are based primarily upon the principle of use in commerce, of which, geographic location is a subset and critical concern. The key element for proving up a trademark infringement case is simply likelihood of confusion. Thus, even if no consumer is actually confused by a burger joint in New York using some form of In-n-Out's marks, an infringement action may lie.

Perhaps because of its low regional left coast profile, In-n-Out finds itself in many trademark actions. There is a lesson to be learned by In-n-Out's vigilance. Trademark lawyers and intellectual property attorneys know that, when it comes to trademarks, the phrase "use it or lose it" often applies. Intellectual property must be vigorously defended or else the rights holder may lose exclusive rights to the asset.

Wednesday, August 5, 2009

Digital Rights Management and Ebooks

I stumbled across a nice, concise explanation regarding DRM with respect to Kindle and Sony's competing device. Check the comments section of this Consumerist post. Intellectual property lawyers understand the motivation for DRM (and content producers desire for DRM), but, as a practical matter, it is usually not a winner in the marketplace.

Can Tweeting Make You Rich?? Maybe.

Gawker has a post internet law firms may be interested in reading. The post refers to Internet marketing company Izea and efforts to monetize Twitter by paying people for tweets. This could create all sorts of problems - let alone whether or not it will actually drive meaningful sales pursuant to sponsored tweets. I think it would completely ruin Twitter, who wants to receive a bunch of phony tweets shilling for some corporation? Also, what sort of intellectual property issues might this create? To be continued.

Monday, August 3, 2009

Wednesday, July 29, 2009

Gotta Love San Francisco

Where else but the bay do you get companies like this? See here.

Yahoo and Microsoft Unite to Take on Google

Gawker reports that Yahoo and Microsoft have struck an advertising deal in order to partner up and take on Google in the paid search world. Paid search has been plagued by click fraud thus far, internet attorneys will be watching to see how this new deal affects consumers and small business. Whether or not Yahoo and Microsoft put a dent in Google's search dominance remains to be seen.

Tuesday, July 28, 2009

Is IPHONE Too Much for ATT's Network

Internet attorneys are always interested in new digital consumer products and if their makers can actually back up their performance claims.

To this end, it looks like ATT just doesn't have the network muscle to handle data-hogging Iphones. What's the problem? Well, Iphones just use tons and tons of data. All of those apps and shiny and slick digital toys devour data. This, in turn, slows a network and ATT is the exclusive network provider for Iphone. ATT just might not have broad enough shoulders to carry the entire Iphone data burden. I would recommend that both ATT and Apple re-think this exclusivity or else they may not only lose customers in droves (what good are all those uber cool apps if they don't perform timely), but they may face class action claims for failing to deliver the digital performance they have promised.

Monday, July 27, 2009

Twitter's Trademark Dilemma

Twitter wants to trademark words such as "tweet" and "re-tweet". Problem is, those terms aren't exactly distinctive and, in fact, are arguably descriptive terms - a big no go zone for trademarks. In order to show that Twitter, in fact, uses such terms in commerce - TechCrunch reports a lame change of nomenclature on Twitter's website. Mindless updates are now termed "tweets" instead of "updates" - which had been the nomenclature used for Twitter since its debut.

Who cares and why does it matter? This will have no impact on the average Joe, we'll all go around saying we "tweeted" this or "re-tweeted" that without any fear of violating trademark law or, more importantly, a lawsuit. Twitter's efforts are aimed squarely at third party app developers and - the entertainment/broadcast industry. Twitter wants to be paid each time your favorite baseball announcer says "hey, tweet us the answer to the seventh inning trivia question" and so forth.

Twitter must have had some boneheads doing their legal work previously - what lawyer with any brains would let Twitter go on for over a year using the term "updates" rather than the best e-commerce branding term of recent memory in "tweets"? Perhaps such a boneheaded move will cost Twitter a trademark registration. It would be a shame as that may be the only way Twitter figures out how to actually make a buck or two. The lesson is that e-commerce ventures like Twitter need to retain experienced internet lawyers with the knowledge and foresight to stake out intellectual property territory before such rights are foolishly relinquished.

Friday, July 24, 2009

Facebook Uses Your Pics to Sell Stuff to Your Friends

Most Facebook users don't realize it but their friends may be receiving ads featuring pics ripped directly from Facebook users' profiles. So don't be alarmed if you see your buddy's girlfriend featured in an ad for an online dating website or you are featured as an unsuspecting pitchman for a fast food joint or skin cream. This is just the next wave in targeted, internet marketing and the real and true purpose of all social networking websites.

Users may disable this feature. Of course, it is hard to find the disable function but, that is hardly surprising given Facebook's need to actually make money one of these days.

Tuesday, July 21, 2009

Google off the Defamation Hook in Britain

Google scores a defamation victory abroad. A British court has ruled that Google is not liable for indexing defamatory web pages. As American internet lawyers know, this ruling is in line with Section 230 0f America's Communications Decency Act.

How broadly this is applied in the U.K. has yet to be seen but the ruling seems grounded in logic and reason.

Monday, July 20, 2009

Phishing Attacks Continue to Plague Social Networks

Techcrunch reports on the latest social networking phishing attack developing on Myspace. Proceed with caution on social networking sites, they may not be as secure as many users think.

What are phishing attacks? Wikipedia has the simple answer. Internet lawyers know that phishing can result in serious harm such as identity theft which leads to financial ruin for many. Social networking sites seem to be the perfect target for phishing because users often have a false sense of security and trust. Many times, phishers (the bad guys) can take advantage by posing as a trusted friend or familiar profile. Be wary of weird or strangely titled messages from social networking "friends". If a message makes no sense, it's probably from an imposter.

Wednesday, July 15, 2009

Are the Feds Watching Your Tweets??

Gawker has an interesting little bit of Silicon Valley gossip regarding the Feds keeping an eye on Twitter activity. As internet lawyers already know, the feds are very good at keeping an eye on your internet activities. Best not to Tweet unless you are stone sober. I guarantee some drunken fools will be paid a visit by the secret service after making threats against the President or some other politician. Don't be that guy or girl.

Tuesday, July 14, 2009

Gathering Evidence Online Can Be Tricky

Internet based lawsuits can be very challenging with regard to gathering and preserving evidence. The nature of digital evidence means that it may be lost in a second or extremely inaccurate and misleading.

One example of this is the difficulty in linking wrongful online behavior to the actual bad actor. Some services offer things such as email tracking to identify the actual individual associated with an email address. Experienced internet lawyers know that such services are often inaccurate and unreliable in a court of law.

Take the experience of poor Kimberly Higgins detailed on the Consumerist. This women has been wrongfully sued because her name happened to be linked to an email address used by a scammer who duped a gentlemen in Britain with an Iphone offer. Naturally, the man in London sought justice by filing a small claims suit in America. The problem - he is likely throwing good money after bad by bringing a suit based upon unreliable evidence he obtained from an email tracing service.

Unfortunately, too many people charge off into court without performing the due diligence necessary to know that their suit is based in fact. Essentially, this British gentlemen has based his lawsuit on information he obtained from an unverifiable source. It is akin to filing a lawsuit based upon an anonymous and unconfirmed Wikipedia entry.

Those looking to enter internet litigation may be well served to hire an internet law firm experienced in matters of gathering digital and internet based evidence.

Thursday, March 12, 2009

Chicago Sheriff Picks Fight with Craigslist

Perhaps America's most corrupt political city has taken aim at Craigslist for supposedly promoting illegal prostitution. Chicago's Sheriff, Tom Dart, filed suit against one of the most innovative and successful websites of all time. Mr. Dart's actions are unwarranted and display an extreme lack of knowledge, both of Craigslist and applicable internet laws.

First, Craigslist has voluntarily bent over backwards to aid law enforcement - this lawsuit can only serve to negate that goodwill. To this end, in November, Craigslist reached an armistice with several State Attorneys General, including Illinois. As part of a settlement with said Attorneys General, Craigslist agreed to cooperate with and respond to subpoenas seeking identifying information related to illegal prostitution ads.

Second, Craigslist has instituted many in-house anti-prostitution policies meant to clean up their erotic services pages. Third, Craigslist has sued a number of internet companies which aid ladies of the night in getting around such anti-prostition policies.

Fourth, I would argue that Craigslist, as a matter of law, is immune from prosecution and/or liability under the Communications Decency Act and its safe harbor provisions. Finally, it seems as though this lawsuit seeks to punish Craigslist for its proactive efforts in helping to control and limit illegal prostition ads on its site. In other words, the Chicago Sheriff's Department is using the proactive steps taken by Craigslist as proof that Craigslist can and should do more. This is very dangerous for websites and web entrepeneuers of all stripes.

If you have questions about a website's liability for the illegal and/or bad acts of its users, contact an experienced internet attorney.

Madoff off to the Slammer, Throw Away the Key.

Amid all the pain and economic anguish of the last six months, a small bit of solace can be taken in the fact that Bernard Madoff is going to die in prison. The WSJ reported today on Madoff's guilty plea allocution in front of District Court Judge Denny Chin. Victims of investment fraud should seek experienced trial lawyers to help recoup hard earned money that went up in smoke due to the unscrupulous investment advisers and securities fraud.

Thursday, February 5, 2009

myspace cleans up its user base - does this signal the end of website immunity for bad acts of users?

Myspace may be a little less creepy these days but it still remains largely irrelevant in the wake of Facebook's domination of the social networking world. Nevertheless, the creepy factor was reduced when Myspace apparently used proprietary technology to identify and delete sex offender profiles. On the one hand, I applaud this effort. On the other, does Myspace's action bolster the argument that user generated content sites should be and can be more active in policing the actions of their users? How does this affect the safe harbor provisions of the DMCA and Section 230 of the CDA? How does it affect Youtube's defense to the vicarious copyright infringement claims it faces from Viacom? Youtube manages to identify and keep porn off its site, why can't it identify and keep off copyrighted content owned by production companies? Internet lawyers will surely be debating these issues in the coming months.

Monday, January 5, 2009

Hackers Target Celebs on Twitter

Phishing schemes are usually perpetrated against consumers' online banking activities. But, some crafty hackers have come up with a more humorous, if not less lucrative, use of the ol' phishing scheme.

Recently, Britney Spears and President elect Barrack Obama were victimized on Twitter, the internet feed service that lets all the people in your life know what you are up to 24/7. Bogus messages were purportedly sent out under Obama's and Spears' Twitter accounts. Not much real harm but nonetheless illustrates the minefield businesses and individuals walk through on a daily basis in cyberspace.

If you are the victim of a phishing scheme or other internet fraud, contact an experienced internet attorney.