What legal questions do you have about IM?

[mont7071]

After seeing countless WF posts of "I have xyz legal problem, what should I do?", I figured it was time to write a post. I cringe every time I see some desperate person make important legal decisions based on the advice of whatever third-world lunatic logged on the forum at that given moment and answered first.

I am an attorney. I make a lot more money in the IM world then I ever have pushing paperwork around a courtroom,so I don't practice much anymore, but the skills and knowledge I gained as an attorney have also been largely responsible for my success in the IM world. More importantly, they have kept me out of a lot of trouble or problems I would have otherwise had. It occurs to me, in seeing many posts on WF and other forums, that the vast majority of real IM'ers out there:
1) Have legitimate legal issues that should be addressed by a lawyer
2) Have no f*king idea why/where/what to do to get answers to their legal problems, or even what their problems are.

The main problem out there is, 98% of the attorneys in the world have absolutely NO concept of the online marketing game. DMCA takedown notices, Privacy Guard removal, Cease and Desist, trademark/copyright disputes, FTC compliance issues on LPs, etc are NOT rocket science, and shouldn't need a $10k retainer paid for the lawyer to figure out. Most of the legal issues IMers face are fairly simple to do from a legal perspective, but attorneys just don't understand how this biz works. The few Internet Marketers who DO use an attorney usually just find a local lawyer in their town, pay a huge retainer (which gets used up by the attorney trying to educate himself on our world), and hope he figures it out. 9 times out of 10, a strongly worded nasty-gram or two on a lawyer's letterhead and sent certified mail would have solved the issue without ever being in court.

So my question to you is, what kinds of legal questions do you have, or have actually hired an attorney for, in the IM world? I'm not in the "free legal advice on the Interwebz" business, so please don't send me the specifics of your precise scenario and ask me what to do. Generally, what kinds of questions pop up for you that you would want an experienced attorney to answer? Who knows, maybe I'll put together a PDF of "Internet Marketing and the Law 101" and send out some review copies to those that post good ideas.

P.S. std. disclaimer applies, nothing I say here should be construed as legal advice or create an attorney/client relationship, consult your attorney.

 

[Rage9]

Well if you want to be taken more seriously than a joker, provide proof you ARE an attorney. Otherwise why should we believe you more than any other joker?

 

[Medici]

if you're wondering how you can prove to us that you're a lawyer you could always place a newspaper on your law degree with the news paper covering your last name.

then again, you're offering a free service so why should you jump through hoops?

 

[onlinemoniez]

We only trust your advice if you went to a T14. 2nd, third and 4th tier toilets do not count.

 

[mont7071]

if you're wondering how you can prove to us that you're a lawyer you could always place a newspaper on your law degree with the news paper covering your last name.

then again, you're offering a free service so why should you jump through hoops?

My thoughts exactly, whether anyone believes I'm an attorney or not doesn't really change that I am. I'd prefer to remain anon for now, I don't need 5k "free legal advice" requests in my inbox tomorrow morning

But I'll bite, I'll provide proof to a mod and see if they'll confirm on the board.

 

[roman8389]

I'll give you something easy...

Since we're all about linking to shady advertisers' sites, can an affiliate ever be held responsible for the content of an advertiser's site if that page ends up breaking some law? E.g., advertiser doesn't clearly state terms for a rebill offer or whatever. Should a disclaimer be put on our pages to protect us?

Along those lines (and to continue with the rebill example), should we put the T&Cs of the offer on our LPs, or leave it up to the advertiser?

 

[papajohn56]

I can verify he's a lawyer. Confirmed in an email conversation.

 

[kblessinggr]

I can verify he's a lawyer. Confirmed in an email conversation.

Better question is, what region/state is he licensed in? As that would have an impact on where his advice would be valid.

also

nothing I say here should be construed as legal advice or create an attorney/client relationship

Which means, its just bout as useless as what any other person would say.

 

[papajohn56]

Better question is, what region/state is he licensed in? As that would have an impact on where his advice would be valid.

also


Which means, its just bout as useless as what any other person would say.

I wouldn't say his info is useless, it's just he can't treat it as attorney/client info, because if he doesn't put this disclaimer he puts himself at risk of being disbarred. I won't give any details on info, but he's in the Pacific Northwest. He can tell the rest if he likes.

 

[mont7071]

I'll give you something easy...

Since we're all about linking to shady advertisers' sites, can an affiliate ever be held responsible for the content of an advertiser's site if that page ends up breaking some law? E.g., advertiser doesn't clearly state terms for a rebill offer or whatever. Should a disclaimer be put on our pages to protect us?

Along those lines (and to continue with the rebill example), should we put the T&Cs of the offer on our LPs, or leave it up to the advertiser?

This is a GREAT question, and I could write alot about the intricacies of it and how absolutely screwed up it really is. But, briefly:
Under a very strict reading of the law, ANY third-party (the affiliate) could be held vicariously responsible if they benefited from the "crime" ( say, fraud for example) of the Principal (advertiser). The harder question is the reverse, could an advertiser be held responsible for a shady affiliate putting ridiculous claims on their squeeze page even if the advertiser didn't approve it? To read the Oprah lawsuit, some interpretations say anyone who profited from the actions of another can't then just escape liability by saying "hey, I didn't know they were doing that stuff on their end,I had nothing to do with it". Its a really hard legal question because, for example what if I want to shut down a competitor, so I put false claims up raving about how his product cures cancer, link it to his site (presumably he would get some "benefit" from those visitors wanting to buy a cancer cure), in that scenario could he be shut down for my bad actions?, common sense says "no" but the law tends to leave that door open.

To get back to your original question, its always the "safe" approach to include those disclaimers on your site when you link to these shady advertisers. Realistically, we all know that could hurt our conversion rates, and so we mostly don't do it. Realize that the Advertiser is at the top of the food chain, the various regulatory agencies are going to focus on them first, not the guys referring traffic over. Any risk you have of them coming after you is going to usually be after they targeted the advertiser first, so you should see it coming. I'm not saying you should hope to slip under the radar, but everyone has to balance what they'll lose in conversions against what little protection they are going to gain, plus what lets you sleep at night. Avoiding the really shady advertisers will solve alot of that problem though

 

[eVandals]

DMCA takedown notices, Privacy Guard removal, Cease and Desist, trademark/copyright disputes, FTC compliance issues on LPs, etc are NOT rocket science, and shouldn't need a $10k retainer paid for the lawyer to figure out.

To marketers who need a lawyer to understand those things, good luck bros.

 

[mont7071]

Better question is, what region/state is he licensed in? As that would have an impact on where his advice would be valid.

also


Which means, its just bout as useless as what any other person would say.

This is a fair assessment,and one that I've given a lot of thought to. Basically, (as you apparently know but most don't), attorneys are only licensed in specific states. An attorney cannot "practice" law in a state that they are not licensed in at the state level. HOWEVER, every concept I mentioned in the OP is a FEDERAL law concept. any attorney licensed in any of the state courts can practice under the federal statutes, they just can't appear/practice in state courts they aren't licensed in.

This is the main reason why in the OP I state to people NOT to give their specific legal question/situation, I'm looking for just what kinds of "general" legal questions most IMers face, I cant answer every question individually (nor would I) due to our rather strict rules on practice jurisdiction (and the fact I'm not in the "free legal advice on the Interwebs' business). General types of questions only please.

 

[canucksfan19]

I made a thread awhile ago about using images in ad and not having the rights to them. What are the risks? And what steps would someone have to go through to sue me if I a) use a copywrited image or b) used an image of some lady that i found on google.

Also, what are the laws against ripping other peoples sites?

 

[kblessinggr]

I made a thread awhile ago about using images in ad and not having the rights to them. What are the risks? And what steps would someone have to go through to sue me if I a) use a copywrited image or b) used an image of some lady that i found on google.

Also, what are the laws against ripping other peoples sites?

In my photographic experience, in the case of using an image you are not authorized to use (almost every image is 'copyrighted' unless deemed public works, such as those shot and archived by the government under fair use), you'd normally first get a DMCA take down notice sent to you, your advertiser or your hosting provider where the image is stored, followed by a cease and desist order. and if they want to take it any futher they'd file a suit, but most will just harass you forever until you settle or something other.

Most of the time it dies after the DMCA take down notice, unless you piss off a company like Getty images.

In the later, using the likeness of a person without a model release is potentially more damaging, as it becomes personal for some.

So as a photographer who has had to send out a few DMCA takedown notices of my own in the past... why risk it, you can buy royalty free stock images from places like istockphoto.com for only a dollar to be used in the size of say an ad banner and most of those are more professional than you'd find from google images without the risk attached.

 

[goddfadda]

Alright I've got one for ya. On a lot of "blogs" and "editorials" out there I see lots of false testimonials, etc. But the disclaimer generally has something like this. How much of a safe-haven do you think this really is?

It is important to note that this site and the comments/answers depicted above is to be used as an illustrative example of what some individuals have achieved with this/these products. This website, and any page on the website, is based loosely off a true story, but has been modified in multiple ways including, but not limited to: the story, the photos, and the comments. Thus, this page, and any page on this website, are not to be taken literally or as a non-fiction story. This page, and the results mentioned on this page, although achievable for some, are not to be construed as the results that you may achieve on the same routine. I UNDERSTAND THIS WEBSITE IS ONLY ILLUSTRATIVE OF WHAT MIGHT BE ACHIEVABLE FROM USING THIS/THESE PRODUCTS, AND THAT THE STORY/COMMENTS DEPICTED ABOVE IS NOT TO BE TAKEN LITERALLY.

 

[mont7071]

In my photographic experience, in the case of using an image you are not authorized to use (almost every image is 'copyrighted' unless deemed public works, such as those shot and archived by the government under fair use), you'd normally first get a DMCA take down notice sent to you, your advertiser or your hosting provider where the image is stored, followed by a cease and desist order. and if they want to take it any futher they'd file a suit, but most will just harass you forever until you settle or something other.

Most of the time it dies after the DMCA take down notice, unless you piss off a company like Getty images.

In the later, using the likeness of a person without a model release is potentially more damaging, as it becomes personal for some.

So as a photographer who has had to send out a few DMCA takedown notices of my own in the past... why risk it, you can buy royalty free stock images from places like istockphoto.com for only a dollar to be used in the size of say an ad banner and most of those are more professional than you'd find from google images without the risk attached.

^^^ Pretty much THIS, what kbless said is pretty much my view as well, it takes some time and effort bring a suit like that and damages are low and hard to prove, but you're better off just paying for istockphoto/fotolia images for a couple dollars and be done with it.

With regard to the Getty letters they send out, I know lots of clients who have received them. Getty sounds very threatening in them, but when you actually research their litigation history, they NEVER actually pursue anyone on these, its just an attempt to scare you and make you send them the (astronomical) amount they request in their demand letter.

Nevertheless, I don't condone stealing content/images/IP that isn't yours, its always better to just pay for stock photos and be done with it. You probably don't like your LPs getting jacked, its the same principle.

 

[mont7071]

Alright I've got one for ya. On a lot of "blogs" and "editorials" out there I see lots of false testimonials, etc. But the disclaimer generally has something like this. How much of a safe-haven do you think this really is?

This has recently become a bit of a hot-button issue to the FTC, and you're starting to see their new "guidelines" (notice I didn't say "rules") trickle down the networks with regards to these fake testiminials.

In short, common sense rules. Obviously having a giant pic with 30 point font saying "I lost 600 pounds with this" and then expecting to get off by including a tiny 'disclaimer" at the bottom is not the simple "get out of jail free" card some people think it is.

When the FTC or ERSP reviews you for false or misleading advertising, the standard they use is 'the totaility of the circumstances;" basically, how does the whole thing fit together, would the average person believe it to be an actual testimonial?, etc. You dont get to say whatever you want, and then expect a tiny 4 point disclaimer buried to get you out of responsbility for Oprah's pic at the top, ridiculous claims etc.

Including the disclaimer is never going to hurt you in the authorities eyes, but don't expect it to absolve you of all risk for saying stuff you couldn't say otherwise. This is going to become more of an issue in the future,but you can avoid the issue easily enough. Its pretty easy to get a real testimonial that you can keep on file by offering a free "whatever" in exchange for customers sending you their actual testimonial. There are still claims you can't make (e..g. lose more than 2 lbs per week) but that is a hell of a lot more defensible then just making up whatever you feel like and throwing a tiny disclaimer at the bottom.

 

[megatabbers]

Here's one for you. It's pretty obvious that it's illegal but which action should be taken to resolve the issue as quickly and painlessly as possible:

A competitor (affiliate or company) ranks for your product name, writes a negative review which contains false statements, and uses the picture of your product without permission... all in an effort to provide "unbiased reviews" of another product.

Can I send him subpoena outright in hopes of getting him to disappear? And if so, how much money can I ask in a lawsuit? I'm not interested in collecting, just making him/her disappear and think twice before fucking with my brand.

If a subpoena is not the best approach, then what is?

Thanks in advance.

 

[kblessinggr]

With regard to the Getty letters they send out, I know lots of clients who have received them. Getty sounds very threatening in them, but when you actually research their litigation history, they NEVER actually pursue anyone on these, its just an attempt to scare you and make you send them the (astronomical) amount they request in their demand letter.

Yea I remember those, I've actually gotten one for one of my own image lol, I just ignored it. But I recall them also sending them to a couple other photographers I know because they used the image in a blog or something, and getty automatically made some kind of legal threat about how the image has not been licensed to be used for that fashion and what not. Its particularly nerve-racking if you have the same image at several stock firms without an exclusive agreement, and a buyer gets harassed by a different firm even though they legitimately purchased it (most of the time they don't pursue pursue a threat unless their member is indeed an exclusive member as thats a benefit of exclusivity.)

I will say this much though, on sites like istockphoto.com for example, they do have a little clause that says you can't use the person's likeness in a demeaning manner. That is to say take a picture of a couple and stick it up for an ad for 'living with herpes?' or pornographic purposes, it helps to read the fine print of any stock site you use.

 

[kblessinggr]

Here's one for you. It's pretty obvious that it's illegal but which action should be taken to resolve the issue as quickly and painlessly as possible:

A competitor (affiliate or company) ranks for your product name, writes a negative review which contains false statements, and uses the picture of your product without permission... all in an effort to provide "unbiased reviews" of another product.

Can I send him subpoena outright in hopes of getting him to disappear? And if so, how much money can I ask in a lawsuit? I'm not interested in collecting, just making him/her disappear and think twice before fucking with my brand.

If a subpoena is not the best approach, then what is?

Thanks in advance.

... wouldn't you have to file a lawsuit first before you can actually get a judge to issue a supoena (usually for obtaining information, or appearance).

I think you meant Cease and Desist order, outlining slander/libel.I'm sure mont can go into detail, just thought it was odd you said subpoena.