What legal questions do you have about IM?

[PSU4Life]

Awesome Thread!

This is a general question. How are cases/issues proved online? Like the question on DMCA, how do the hosts prove the images/content in question are actually yours.

Like I report a site for using my images to their host, how can the host verify those images were taking from me. The guy I'm reporting could say they are his images and I copied them from him.

This kind of goes along with disclaimers, terms of service, etc. Everything can change in an instant online, we can edit emails, or even be hacked or people can pretend they are hacked.

Example: we click agree to a TOS for an affiliate network, forum, etc. How does that really bind us. Since the site could change the TOS the second we click submit. Is the terms of service (TOS) we are agreeing to stored somewhere in paper form with some regulatory agency? To me a TOS seems like a joke unless some regulatory body oversees them since they can show us whatever they want and edit it any time.

Example in the thread, is you put: "*disclaimer time, this should not be interpreted as legal advice nor the formation of a attorney/cleint relationship, consult an attorney for your specific legal case" " at the bottom of one post.

Now any mod can edit that if they wanted or it could even be hacked. How could you prove you did in fact have a disclaimer on that post? Not that you need one but just trying to show how things are so easily editable and seem to me hard to prove online.

Basically how do legal issues get proved online with the unique nature of the internet. It would seem any internet case would be super expensive with lawyers needing computer experts to dig through server logs, verify IPs since people use proxies/vpn, check for hacking, etc. Think how easy it would be for a server company to upload illegal files to your site. How do you prove they did it?

Thanks

 

[envision]

To add to my list above:

We talked about testimonials above. So along the lines of of my first bullet, if you write a "farticle" - something to look like an article of a neutral newspaper / TV station, but not a personal experience story - does that count as testimonial in that sense? Subject to all the same disclaimer and disclosure rules?

Also, with DMCA notices, cease and desist letters etc., do they usually come with demands for fees right away? Or do yo just get to remove the offending stuff and are home free?

 

[Garrett]

Its a long list, so a few in no particular order:

*Using celebrity's images/photos on their site without permission

*Stating any product/device can help you lose more than "2 pounds per week without behavioral change" (this language comes from FTC regs, >2 lbs per week is their magic hot-button)

*Not including "Copyright 2010" at the bottom of their LPs (it takes 5 seconds, and fulfills the "notice" requirements if you ever decide to sue someone for jacking it, plus it just looks more professional)

*Not pursuing legal action when a network goes under, doesn't pay you a big chunk owed, then reopens under a different name, niche etc. (Its a simple contract claim, and alot of these networks do have some assets left, first in line with a legal claim has the best shot of collecting)

**Not setting up their IM biz as a corporation or LLC (this is probably the biggest, its not that hard or expensive, and can save you ton of headache, cuts tax bill, looks more professional, and removes personal liability.) If you are a serious IM, you are crazy not to do this.

There are lots more, but those are the first to come to mind

Wow thanks man! really appreciate you taking the time! I find this tye of information very useful, so if more spring to mind, be sure to update us!

 

[mont7071]

Awesome Thread!

This is a general question. How are cases/issues proved online? Like the question on DMCA, how do the hosts prove the images/content in question are actually yours.

Like I report a site for using my images to their host, how can the host verify those images were taking from me. The guy I'm reporting could say they are his images and I copied them from him.

This kind of goes along with disclaimers, terms of service, etc. Everything can change in an instant online, we can edit emails, or even be hacked or people can pretend they are hacked.

Example: we click agree to a TOS for an affiliate network, forum, etc. How does that really bind us. Since the site could change the TOS the second we click submit. Is the terms of service (TOS) we are agreeing to stored somewhere in paper form with some regulatory agency? To me a TOS seems like a joke unless some regulatory body oversees them since they can show us whatever they want and edit it any time.

Example in the thread, is you put: "*disclaimer time, this should not be interpreted as legal advice nor the formation of a attorney/cleint relationship, consult an attorney for your specific legal case" " at the bottom of one post.

Now any mod can edit that if they wanted or it could even be hacked. How could you prove you did in fact have a disclaimer on that post? Not that you need one but just trying to show how things are so easily editable and seem to me hard to prove online.

Basically how do legal issues get proved online with the unique nature of the internet. It would seem any internet case would be super expensive with lawyers needing computer experts to dig through server logs, verify IPs since people use proxies/vpn, check for hacking, etc. Think how easy it would be for a server company to upload illegal files to your site. How do you prove they did it?

Thanks

That kind of analysis tells me you might like law school

You are 100% right, so much of this stuff is vague and uncertain, many people have this (incorrect) belief that the Law is very black and white.Its not, and its becoming even more gray in the Internet age.

In a speech I gave, people tended to like my example of a "brick in a wall" so I'll use it here by way of example. If I walk into court with a stack of printed out email messages, we all know I could have edited them, added new stuff, deleted out the ones that hurt my case, etc. A judge (should) know that too,so he is going to assign less "value" to something like vs. a sworn statement notarized by the Pope, that Jane told John XYZ in an email conversation. A stack of random emails I say are originals is not as big of a brick in my wall (wall =case/legal claim) but it still better than nothing at all. A Pope-notarized affidavit is a bigger brick.

No case is ever 100% bullet-proof, you can't always have giant bricks to make your case stronger. The more little bricks you can put together, the better your odds are though. Do I think my random legal disclaimers at the bottom of emails I send to clients every day are going to absolve me of liability if I handle their case wrong? Nope, but its better than nothing, its a small brick. I've never seen a case where one side had 100% of the proof, life doesn't work that way.

99% of legal issues get resolved outside of court, much of that is having built a strong enough wall that the other side either is scared to tangle with you, or knows it will be too expensive to justify. So add disclaimers, think twice before posting Oprah pics, pay for your stock photos, incoroprate, etc. all this stuff adds up, and at the end of the day, the more bricks you have the better.

 

[MMOMerchant]

so you are saying you can fake a testimonial as long as you say the person lost 2lbs/week or less? (assuming you have the proper disclaimers on the bottom)

 

[goddfadda]

Agreed solid answers in a really short period of time. +rep!!

 

[mont7071]

so you are saying you can fake a testimonial as long as you say the person lost 2lbs/week or less? (assuming you have the proper disclaimers on the bottom)

Didn't say that, just that one of the weight loss claims the FTC gets really worked up about is that "2 pounds per week". There are some other "guiidelines" in the works about paid testimonials,blogger disclosures, using the "results not typical" disclaimer, etc. This is just a general outlook on the question, every scenario is a little different, so its hard to have too many "brightline" rules, particularly when the FTC does every decpetive advertising investigation on a case-by-case basis.

 

[Roundabout]

Mont,

Here's one for you.

I know a fellow mailer who was threatened with a scare suit by an ambulance-chasing lawyer in New Jersey for promoting a simple zip/submit. One of those $1000 gift card offers.

I actually read the letter as I'm friends with the guy. It was a real joke. The claim was that in the state of NJ, nobody can be offered any type of "free gift" solicitation. It was something along those lines. The lawyer gave my friend 30 days to offer a "settlement" of $2500 or something silly to make it go away.

The Advertiser wound up taking care of it and handling the settlement. I just found the entire thing silly. But if more money seeking lawyers in the states do stuff like this, it makes life much harder for mailers. Curious on your thoughts about this law, if you've ever heard of it, and your suggestions, if any.

 

[gutterseo]

I also have a question that isn't really directed at you but you may have some kind of answer or input. Lets say I have a load of fake testimonials etc with no disclaimers at all, these campaigns would be targeting the US market however I am resident of Ireland, aside from getting my host (US based) to take the page down is there anything that can be done to me?

Taking this a step further with the pictures of Oprah etc. can I expect something bad to happen?

 

[mont7071]

Mont,

Here's one for you.

I know a fellow mailer who was threatened with a scare suit by an ambulance-chasing lawyer in New Jersey for promoting a simple zip/submit. One of those $1000 gift card offers.

I actually read the letter as I'm friends with the guy. It was a real joke. The claim was that in the state of NJ, nobody can be offered any type of "free gift" solicitation. It was something along those lines. The lawyer gave my friend 30 days to offer a "settlement" of $2500 or something silly to make it go away.

The Advertiser wound up taking care of it and handling the settlement. I just found the entire thing silly. But if more money seeking lawyers in the states do stuff like this, it makes life much harder for mailers. Curious on your thoughts about this law, if you've ever heard of it, and your suggestions, if any.

I'm not licensed in NJ, so I can't speak on this particular case. Several states do have the "no gift to solicit" rules though, many of them were put in place because (one case I remember) scamsters would offer free lunches or free cholesterol tests at senior citizen centers and then start peddling financial seminars/investments to the old folks while they ate/got tested. Alot of cities have regs on that as a municipal statute, varies alot by jurisdiction. There is no overarching federal law that governs that that I am aware of.

Much like the threatening letters from Getty Images, a lot of these letters are basically just pseudo-extortion to get someone to pay up because they did/think they did something wrong and don't want to get in legal trouble. When the letter comes registered mail or is served on you by a process server, then you know they are serious. Otherwise, they are often just fishing to see who bites and pays, it doesnt take a very high conversion rate on these letters to be hugely profitable, just ask Getty.

 

[Jizzlobber]

Jon should give mont a 'Legal Guide' badge. Maybe you should pimp some legal packages in BST to keep yourself intere$ted in hanging out at WF - there's legal issues that come up all the time amidst the drama.

 

[mont7071]

I also have a question that isn't really directed at you but you may have some kind of answer or input. Lets say I have a load of fake testimonials etc with no disclaimers at all, these campaigns would be targeting the US market however I am resident of Ireland, aside from getting my host (US based) to take the page down is there anything that can be done to me?

Taking this a step further with the pictures of Oprah etc. can I expect something bad to happen?

Any attorney that wanted to make things hard on you would strike your weak point here, the US based servers. They would send DMCA takedowns to the US based hosting company to shut down the site, but that's probably it. Its really hard to come after non-US residents directly, I don't know any attorneys who even try, international law is a tough nut to crack, especially when there isn't a big money claim to go after.

I'd probably still avoid tangling with Oprah though, her attorneys have a blank check to chase cases most lawyers wouldn't.

 

[mont7071]

Jon should give mont a 'Legal Guide' badge. Maybe you should pimp some legal packages in BST to keep yourself intere$ted in hanging out at WF - there's legal issues that come up all the time amidst the drama.

Ya, my thought was to maybe write (or have one of my associate attorneys write) an info product PDF of the "Top 10 Legal Issues IMers better know" or some such. Granted, I'm so busy I'd probably never get around to doing it( and I hate eBook products) but it seems like there is a need out there, and alot of IM people could save themselves a ton of grief and money if they had a handy guide that told them what to watch out for.

 

[envision]

Hey mont, could you have a look at my questions in post 39 and 42? Seems like you addressed everyone else after me, I'm so hurt... :crying:

No seriously, if international stuff or the things I asked are not your forte, that's fine. Just wanted to make sure it didn't get overlooked in those rapid-fire posts earlier.

Edit: Just saw your answer to gutterseo above, that addresses one of my points too, thanks!

 

[kblessinggr]

Jon should give mont a 'Legal Guide' badge. Maybe you should pimp some legal packages in BST to keep yourself intere$ted in hanging out at WF - there's legal issues that come up all the time amidst the drama.

I concur.

 

[mont7071]

Hey mont, could you have a look at my questions in post 39 and 42? Seems like you addressed everyone else after me, I'm so hurt... :crying:

No seriously, if international stuff or the things I asked are not your forte, that's fine. Just wanted to make sure it didn't get overlooked in those rapid-fire posts earlier.

sigh- I skipped those because they were HARD, everyone else's are easier

Some of them are little too situations-specific, so I will stick to general concepts, but here goes:

flog-trademark issue: Something like Newark Times is probably fine (assuming there isn't an actual Newark Times) words that are merely descriptive don't get trademark protection, and adding the term "Times" is hardly unique, thousands do it, so someone like NYT wouldnt have a claim on the name (assuming you didn't copy their look/logo etc to make people think it was associated with NYT).

-feeds issue- dont know the details, dont want to know the details, but typically if the feed is meant for syndication, and you abide by their rules and don't change it, keep it whole etc, usually fair use doctrine and Creative Commons License is going to offer some protection. Very case specific though, buyer beware.

International liability issues- see above, realistically us US-based lawyers hit what we can on our home soil, its pretty hard to chase/hurt international folks. There are treaties/WTO issues to watch out for on trademark/copyright issues (not that China bothers to follow them)

-The Azoogle free credit email - ya, got that one too. Long story short, the FTC is going to crack down on this, anyone else noticed that FreeCreditReport.com has been "split testing" different disclosures ahead of the April 1 FTC deadline? That industry is about to change, and alot of affs are going to get shaken out. You have to follow the network's rules if you are running it through the network to get paid.

-International tax issues is a whole different can of worms. All I will say for now is, most countries have reciprocal tax treaties with each other, which means if you pay a certain tax in one, you won't get "doubled" up and have to pay that one twice (in the other ctry too). The smart person finds a way to shift certain types of income into the country that treats it most tax-favorably and uses those treaties in his favor.

**this is not legal advice, don't interpret anything I say here as applicable to any individual's legal situation. This is not an attorney/client relationship, use at your own risk**

 

[envision]

Thanks! I appreciate it!

One question left that should be easy:
Do DMCA notices, cease and desist letters etc. usually come with demands for fees right away? Or do you just get to correct the issue and are home free?

Luckily, I've never had to deal with those yet.

 

[mont7071]

Thanks! I appreciate it!

One question left that should be easy:
Do DMCA notices, cease and desist letters etc. usually come with demands for fees right away? Or do you just get to correct the issue and are home free?

Luckily, I've never had to deal with those yet.

No, DMCA compaints are merely a "safe harbor" notice to the host to get rid of them or they are going to be joined into a potential lawsuit, there is no monetary damages at that level. Most attorneys that take it to the next level and file in civil court will include language in their civil suit to the effect of "I want XY, and Z to happen, and the court to grant damages in an amount to be proven at trial."

 

[HiGhPeR]

Hey Mont, I think this is an important question and one lots of us NON US affiliates have..

What kind of jurisdiction does the US have to go after an affiliate who is not in the US for not following FTC guidelines? Obviously the internet is a tool for the world - not just the US - to view information.. so would my sites have to follow FTC regulations if I was receiving US & international traffic?

PS - this is a great post u got goin here

 

[mont7071]

Hey Mont, I think this is an important question and one lots of us NON US affiliates have..

What kind of jurisdiction does the US have to go after an affiliate who is not in the US for not following FTC guidelines? Obviously the internet is a tool for the world - not just the US - to view information.. so would my sites have to follow FTC regulations if I was receiving US & international traffic?

PS - this is a great post u got goin here

Its a very complex issue, but here is my basic opinion.

Governmental entities are different than private citizens when it comes to what lengths they will go to and what power they have to "get" non-US citizens or entities. Try shipping illegal weapons or heroin into the US with the excuse of "its ok, I'm from Zimbabwe" and you can imagine the results

While US citizens have the most issues/restrictions, most developed countries have some sort of formal relationship with the US and its legal system. There is a reason certain countries are known as "non-extradition" countries, because the rest can and will work with the US gov't when necessary. This is typically only in serious criminal actions though, the FTC is pretty much a lightweight when it comes to any real international jurisdiction or authority.

This does NOT mean you can just ignore US rules though. More likely than not, you still have some sort of "connection" to the US that gives them an avenue to attack you. US-based hosting companies is an obvious one, but even offshore servers are not necessarily out of reach, (remember which country wrote the ICAAN rules If you are promoting shady rebills to US citizens, they can still get your ads shut down. If you are shipping products into the US, rest assured US Customs has a blacklist, and can keep your stuff out of the country. If you work with networks based in the US, the gov't/FTC can put pressure on them to cut you loose and give over any ill-gotten funds, though this is rare.

In short, most international publishers do have some sort of link to the US that could be a "weakness" if they pushed things too far. If you don't live in the US, dont get traffic from US citizens, don't promote in the US, dont sell in the US, don't work with US companies etc; then by all means do whatever the F#ck you want, US doesn't have jurisdiction. For the other 99% of us, its best to at least be aware of what US-based IMers are going to be bound by, and try to generally hold to those same concepts when you are involved with US promotion or sales. Just because they can't send you a binding legal subpoena or attorney general complaint doesn't mean they still can't shut down your business as you know it if you are doing stupid, reckless, or illegal things.

Just my two cents/drachmas/pesos/baht/yen/rubles/etc