Your IM Legal Questions -Part III



A website specifically for embedded media/videos (tv shows, movies etc), how liable are you and is it likely that a case would be made against you for copyright material even though the content is hosted on a 3rd party website? I have heard both sides of this and just want to know the true answer. Thank you.
 
Berto said:
mont, awesome welcome back!

I'm just wondering in general what you think about the Facebook Open Graph API. This is going to open a lot of "privacy" concerns for some people.

Have you read much into the user agreements and have any comments on things such as data/media ownership and use of peoples' personal data and e-mails? Do you plan on using it in your campaigns?
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Generally, Open Graph intrigues me because a part of me really thinks this just might revolutionize the online world, and this is coming from someone who was late to the FB party, hates their arbitrary advertising guidelines to the point of throwing things off my desk, and often thinks these guys know less about monetizing traffic than my houseplant does.

FB has fubar'd the privacy thing royally in the past with their ill-conceived Beacon idea, so my guess is they are going to tread really carefully with the privacy issue, and probably have an entire football team worth of attorneys going through this stuff as we speak.

You've all probably seen news sites where to comment, you use your Facebook login. This is a great way for sites that "partner up" with FB to vet the commenters, share and recommend truly targeted options based on the classic FB demographic targeting, and generally data-mine the hell out of their users. Imagine the concept of StumbleUpon, taken to a factor of 10. "Behavioral Targeting" is a term that gets thrown around a lot in online advertising today, but this could really in truly accomplish it if they pull it off.

Like most privacy issues, the devil is in the details. FB is going to take pains to have users "opt in", but the question remains how much opting in is necessary. I have to be honest, I found it a little creepy the other day when I was NOT on Facebook (but apparently hadn't affirmatively logged out when I last was), visited a news story on CNN that interested me, and saw in the corner, "Your friend Bob liked this story too", complete with their facebook profile pic and a link. That can start to feel awful "Big Brother" and FB has already seen firsthand the blow-back when users don't want what they view as "private" information revealed for all to see, especially when its used for marketing purposes.

I think we're going to start seeing a lot of different "custom privacy levels" that users are going to agree to, what remains to be seen is what kind of "carrot" Facebook/Other partner sites can offer to entice increasing levels of interaction (aka lower levels of privacy). Its not hard to see where marketers could do a complete run around Can-Spam by targeting based on FB demographic data that people don't realize they freely gave away, and even start contacting users directly without the use of email at all.

I don't have anywhere near all the answers on this, but I think nobody in our industry can ignore the potential ramifications of this. It could change behavioral targeting, how we buy CPM media, even SEO as we know it (think "personalized search" at a whole new level, where every SE user gets different customized search results based on factors that include the data mined from FB Open Graph). Keep your eyes on this and how it could affect your business, some smart entrepreneurs are going to make a fortune marketing through these channels while FB is still hammering out the privacy issues.
 
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This question may have already been asked but I want to just clarify it. I have heard it's illegal to use a company name in your domain name. Is this true? I have been using a few of them for SEO purposes. These domains only benefit the company and are not a direct competitor. I basically have a domain for a sub product that's built for the trademarked company that I am advertising.

So what are your thoughts on using trademarks in your domain name? I hope you have not been asked this yet and my apologies if you have.
 
If I am dropshipping a product and there is a defect am I legally liable (and if so to what extent)?

If I was buying directly from China (and cutting out the dropshipper) would my legal liability change?

If I were to make a user check a box saying that my store cannot be held legally responsible for any product defects or problems before they bought something would my legal liability change?
 
Good thread - I have 2 questions if you have the time for me.

1. Say someone has the trademark of widget and owns widget.com. They then let their domain expire, can I register their domain and develop the domain even though they still hold a trademark? Do I have any legal rights or is that not even worth doing ?

2. Can I describe a skincare product as pharmaceutical even though its not really prescribed/prescription strength ? I guess the question is, is there any FDA restrictions on using the word "pharmaceutical" or "pharmaceutical grade" in copy or trademarks?
 
Andrew Scherer said:
Good thread - I have 2 questions if you have the time for me.

1. Say someone has the trademark of widget and owns widget.com. They then let their domain expire, can I register their domain and develop the domain even though they still hold a trademark? Do I have any legal rights or is that not even worth doing ?

2. Can I describe a skincare product as pharmaceutical even though its not really prescribed/prescription strength ? I guess the question is, is there any FDA restrictions on using the word "pharmaceutical" or "pharmaceutical grade" in copy or trademarks?
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1. Its usually not worth it, if they didn't care enough to stop their trademark from expiring, then the trademark probably isn't valuable enough to risk the hassle. If it was just a major oversight, and they DO want it back, they can get it back from you under UDRP, or by just filing in a local superior court. 9 times out of 10, it isn't worth doing.

2. there are restrictions on saying "pharmaceutical", but not "pharmaceutical-grade" (assuming its a topical and not ingested). Its kinda a BS designation (there is actually no such classification, standard, or qualification as "pharamaceutical-grade") but it sounds important, and a lot of people in my industry go that route. "Manufactured in an FDA-licensed facility" is another neat little use of terminology some use that implies "FDA approved" without crossing over the line and saying something that will result in getting FDA-slapped.
 
AllBizNiz said:
This question may have already been asked but I want to just clarify it. I have heard it's illegal to use a company name in your domain name. Is this true? I have been using a few of them for SEO purposes. These domains only benefit the company and are not a direct competitor. I basically have a domain for a sub product that's built for the trademarked company that I am advertising.

So what are your thoughts on using trademarks in your domain name? I hope you have not been asked this yet and my apologies if you have.
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Could you give me some insight into this?
 
bowlcutah said:
Is being a poker/casino affiliate legal?
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This one is a mess if you are a U.S. resident. Technically, the passage of the UIGEA left it open that U.S. residents or companies could potentially be charged for knowingly marketing to U.S. citizens. The language on the bill was horribly vague though, IMHO its application only applies to direct employees (which affiliates are not) of the casino company.

Some states have their own laws, (i.e. Washington state law does criminalize it, though no affiliate has ever been prosecuted), but there is still no over-arching federal standard or effort. To the best of my knowledge, no affiliate in the U.S. has EVER been prosecuted for promoting online casinos (correct me if anyone knows otherwise). Also, note that no U.S. citizen has ever been prosecuted for gambling on an online casino, even though your government tehnically says its illegal. The UIGEA focused on shutting down the payment methods used by gamers (CC, bank wire, Neteller, etc), rather than coming after the people who were doing it.

Honestly, I think it is such a tiny risk that I have no qualms about telling my clients they can promote (as a non-employee) online gaming all they want, but your mileage may vary.
 
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What's your take on adware/"spy"ware? Two more specific situations:

1. Affiliate provides free stuff (like say smilies or screensavers) that also install an application that displays advertisements. It's disclosed in the terms that advertisements may be displayed.

2. Affiliate provides free stuff that also installs an application that automatically updates. It's disclosed that the application automatically updates. In the future, he updates the application to display advertisements (does he need to display a popup disclaimer before the install?)

Joe.
 
Refrozen said:
What's your take on adware/"spy"ware? Two more specific situations:

1. Affiliate provides free stuff (like say smilies or screensavers) that also install an application that displays advertisements. It's disclosed in the terms that advertisements may be displayed.

2. Affiliate provides free stuff that also installs an application that automatically updates. It's disclosed that the application automatically updates. In the future, he updates the application to display advertisements (does he need to display a popup disclaimer before the install?)

Joe.
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1. This stuff is done all the time (Weatherbug, Gator, most "free screensavers" etc) so as long as it is disclosed, it is usually ok, with clear up-front dislosure.

2. This one is tricky, but its a good question so I'll take a shot. A company called 180 solutions did this (among other sketchy things) and while it was mentioned in a suit that was filed over their business practices, this particular one never got decided in court. I think its borderline, from an ethics standpoint I think it falls on the "somewhat sleazy" side, but if, as you say, it is told upfront that this will happen in the future, I think the sheep gotta take some responsibility for what they agree to in order to get some free smilies, weather temp on their taskbar, free midget porn, ipod sweepstakes, etc.

Id say its kind of a 50/50 situation, that is going to be really fact-intensive and have alot to do with how the future "updates" differ from what was originally being done/downloaded/accepted at the beginning. Installing trojan horses and rootkits later on its going to be treated differently then just showing more prevalent ads after the first 30 days. By way of example, in the old days AOL used to greet users at sign-in with "Important Updates to your Software are being downloaded, please wait" and what they were really doing was downloading the new ads to be displayed in the user interface, and nobody ever raised much of a fuss about that, so I can see both sides of the argument.

Good Q, sorry I don't have a better/ more exact answer, it could go either way.
 
Thanks for answering my question in part II.

Can you give us the low down on what it actually takes to be protected with a single member LLC. What sorts of things are good to say in my optional provisions? What other forms like that do I have to file? BTW: I only know that optional provisions exist because my state's new business registry website popped up a section for me to write some shit in there when I was registering my business. Like a pro I left that optional provisions section blank because I had no idea what to say.

After reading a bunch, I'm 100% sure I'm fucking up somehow and my business is doing jack shit for me besides providing me with an EIN.

Any help would be appreciated
 
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