I don't know man. I thought filing a lawsuit = a subpoena going out to defendant (hence another reason to ask someone in the know).
What legal questions do you have about IM?
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I don't know man. I thought filing a lawsuit = a subpoena going out to defendant (hence another reason to ask someone in the know).
I actually had this almost identical situation on Monday, so IMHO:
My approach is to find something (like an image, but ideally they have some content from your site too) on their website that is clearly YOURS (i.e. taken from your site), and reference the URL where it appears, and then you send a DMCA takedown notice directly to their webhost.
I wont get into all the details, but basically the DMCA has "safe harbor" provisions that allow the hosting company to avoid any responsibility for copyrighted material being on their servers as long as they follow the process when they get a DMCA complaint, which is basically they have to take down the offending page within 10 days and notify the hosting client that they got a DMCA. The hosting client then has X days to respond, at which time you have to provide proof of a lawsuit or it goes back live, etc
Google "DMCA" and "17 U.S.C 512" there is very specific language that must be in these notices, but the big hosting companies all have a process in place for these. Smaller ones sometimes try to play the "intermediary/referee" role, don't let them. If the hosting company wants to be safe, they will do it no questions asked. It's up to the other guy to decide whether to appeal.
You do have to be careful on this though, if there is no good faith copyright claim (i.e. not you just dont like what they said about you) then you can actually open yourself up to legal consequences. Typically only works with US based hosting companies too.
*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"
Yes, using images is something I've always wondered about.
Say I had a "drunken shaming" site, and post a daily picture of some idiot pissing his pants. On the sidebar, I'm selling hangover cures. I'm profiting off of the traffic that someone else's picture brings.
Now what if the image isn't even hosted on my server? I just found it on Google images.
Could this be considered libel? Are they able to sue? Realistically I guess they'd just send a DMCA takedown... but while I'm "using" and benefiting from that image, I'm not hosting it.
Hey thanks for the fast response! A question regarding this:
>> You do have to be careful on this though, if there is no good faith copyright claim (i.e. not you just dont like what they said about you) then you can actually open yourself up to legal consequences.
So, it's not enough for me to say that they are using my copyrighted product image without my permission? What legal consequences could come out of this?
And what about if, in addition to using my image, they made statements such as: product X is useless because of Y and Z, where Y and Z in this case are false statements? Isn't that libel and noncompetitive advertising?
I have one for ya about a specific technique I use often.
Whenever a competitor in the serps tries to use a lot of article marketing to outrank me I copy every last page of content off their site and distribute it to all the same article directories with links to my site.
While its pretty obvious, but not quite provable, that i'm the one who stole their content, its not my site that has it. Is there any legal ramifications that they can pull against me for doing it?
Whenever a competitor in the serps tries to use a lot of article marketing to outrank me I copy every last page of content off their site and distribute it to all the same article directories with links to my site.
While its pretty obvious, but not quite provable, that i'm the one who stole their content, its not my site that has it. Is there any legal ramifications that they can pull against me for doing it?
I think this one has already been answered but I think an answer for a lawyer would be beneficial.
With more and more states passing the "Affiliate Tax" what are the minimum steps someone residing in a state that passed this tax needs to take to register their business outside of that state.
So far we have:
-Register your business in a state that doesn't have the tax (what kind of business registration is needed/best for this?)
-Setup an address in that state (does a post box work for this?)
-Setup a local phone number (is this needed?)
Any other steps that need to be taken?
Thanks for your answers.
With more and more states passing the "Affiliate Tax" what are the minimum steps someone residing in a state that passed this tax needs to take to register their business outside of that state.
So far we have:
-Register your business in a state that doesn't have the tax (what kind of business registration is needed/best for this?)
-Setup an address in that state (does a post box work for this?)
-Setup a local phone number (is this needed?)
Any other steps that need to be taken?
Thanks for your answers.
Ezine/article sites are mostly governed by Fair Use Doctrine. Once you swapped the links with yours, you are off in the grey area right there (this is why all the larger article sites have disclaimer language about how you can only republish it if you keep all content/links intact, etc)
From a "real world" perspective, they would have an uphill legal battle to fight to prove damages against you. The law is going to require two things, first that you caused harm, second, what the harm was and how to make them whole again. IMHO most courts would say that the remedy is simply replacing the original links or taking down the new articles, its very hard to quantify what the actual legal harm is (e.g. what is the $value difference between ranking #1 vs #3 for xyz term? tough question). It strikes me as a very difficult case to pursue from their side. I dont' necessarily condone it, but I think it'd be hard to stop from the other side's legal perspective. And just cuz they have a hard time proving monetary damages and cuasation doesn't mean they wouldn't sue you anyways.
If I had to guess... stealing everyone's campaigns, blatantly faking claims, and using their real contact information on their domain WHOIS (I'd be curious to see if anyone can do worst than that).
It probably falls more under an individuals "right of publicity to their own image" then it does a libel claim, and even that is a stretch. You'd probably just get a takedown notice or cease and desist and that would be the end of it. Its not like there aren't lots more pics of drunk idiots out there on the web to replace any you had to take down
It probably falls more under an individuals "right of publicity to their own image" then it does a libel claim, and even that is a stretch. You'd probably just get a takedown notice or cease and desist and that would be the end of it. Its not like there aren't lots more pics of drunk idiots out there on the web to replace any you had to take down
Haha thanks. Now what if it's a celebrity like David Hasselhoff? Then you need "model release" because he's a recognizable face (and more of a force to be reckoned with)?
The Oprah thing got people into a lot of trouble... but if not using celebrities to do your promotions, it might be way easier to fly under the radar.
Model releases are required for ANY person who's face can be seen, or identified when you hold up the picture next to the actual person. Doesn't matter if they are a celebrity or not. It's actually easier to use a celebrity's image but only in the newsworthy/editorial context. Celebs often have less rights to privacy than your average joe once they've become "public figures".
The statement above applies mostly to the US though..., but its pretty close just bout everywhere. Using a person's image for commercial reasons requires a model release, regardless of how popular or well known the person is. There was once a guy who won a case against folger's for using his image on a coffee can without his permission. He actually got more than a photographer of the image would have gotten, because it was his likeness. Only reason he didn't catch it sooner (it was on the shelf for like 6 years) was because he doesn't drink coffee.
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
Translation : If you run your business as a sole proprietorship, and not an Limited Liability Corporation for example, when someone sues and wins, they can not only go after all your company assets, but also your personal assets like your personal bank account, home, car, other businesses in your personal name, and so forth. LLC helps prevent such a risk from ruining both your business and personal life.
Here are a few:
- A site made to look like say a newspaper, www.[bigcity]Times.com or a TV station. Provided [bigcity] doesn't have a paper or station by that name, could anyone come after you for trademark issues based on similarity? AFAIK, simple words like "Times" and place names aren't trademarkable, but what about e.g. "Newark Times" vs. "New York Times"?
- The question about images raised earlier. What are the rules and consequences of using some picture found online? What if I'm in the US and use a pic posted by a Japanese guy on a German website? Which country's law applies?
- There was a thread earlier about using feeds. The whole point of feeds is typically to allow distribution and syndication away from the original website. Yet, someone here on WF got slapped by a copyright notice for republishing feeds despite linking back to the original source.
- I touched on int'l issues already. The Internet is a global medium and that opens a whole new batch of questions. Say a site that may infringe on some US copyright / trademark / disclosure / whatever law is run by an overseas company. Can they be held liable? What if the hosting company has servers in the US? What if the domain is registered by a US registrar? Just got an email today from Azoogle about FTC-mandated disclosures for credit reports. Do I have to care if I'm not from the US? This also goes the other way around. If you're a US advertiser, do you have to care whether your overseas affiliates abide by all US rules?
- Along the same lines, how protected are you from these things if you run your stuff through a more or less anonymous offshore company, say BVI or something, but personally live in the US?
- Some definite explanation of US tax issues for international affiliates. Eg. is the W-8BEN form required or not? I've read this by a Finnish guy, but he puts a big disclaimer there himself, obviously he's not an expert in the field: US taxes guide for non-US affiliate marketers
Ya, this issue is a mess. NOBODY really has a clue on how best to do the taxation issue between states. In the old days it was easy, whatever state you were operating in, that state calls the shots. Now, in the interent age, geography means nothing.
The Amazon affiliate issue in New York is being watched by alot of folks, it could really change the landscape. Most taxation rights at the state level are based on a concept of "nexus" i.e what connections do you have to the state, are you incorporated or residing there,do you have a storefront there, do you ship from there, do you have just one single $1.95 ebook sale from a resident of there, etc.
Personally, if I dont have a facility in a state, I dont collect sales tax, dont report anything, etc. This is another reason why having an LLC/Corp is so important, it helps you stick to dealing with just one state. All the states are broke and scrambling over the scraps of tax revenue they can find. California is the worst, I know lots of people who re-incorporated their California businesses in Nevada solely because of the taxaction mess. Its not an easy question/solution, I'm afraid I dont have a "one size fits all" answer for that mess. Until some state tells you different, I'd focus on the one where you live/are incorporated in and ignore the rest until you have to, but every situation is different.
**Not to be construed as legal advice in any state, nor should this be interpreted to create an attorney/client relationship**