Monthly Archives: February 2012

New FTC Rules For Kid App Developers

Federal Trade Commission Logo
Federal Trade Commission Announces New COPPA Focus. Target Kids Apps.

Buckle up app developers, The FTC is making moves. This time they have their sights set on kids’ apps.

Last week, the commission announced the results of study analyzing how apps in the Android Market and Apple App Store disclose data collection information.

The FTC wasn’t psyched about their findings; they’re now looking into enforcement measures for applications that don’t include an easily digestible data and privacy policy.

About The FTC Kid’s App Study

In the kid’s app study, the FTC looked at about 1000 of the top kid’s apps on both the Apple and Android online stores (500 each). The findings are detailed and can be found here.

The gist of the conclusion: in “most instances” kid’s apps didn’t have proper policies and features explaining what data was collected and how it would be used.

New COPPA Rules On The Way For Kids Apps

In the announcement, the FTC announced it was also working on amendments to the Children’s Online Privacy Protection Act (COPPA). Due to consumer pressure, and a changing technological landscape, provisions for mobile apps are expected to be added to the federal children’s online privacy bill soon.

Update: The FTC made the proposed COPPA changes for kids’ apps official at the end of December 2012.

FTC Heat Forcing New Apple and Android Developer Procedures

“Developers should provide simple disclosures that explain what information an app collects, how it will be used, and with whom it will be shared,” explained the FTC. Developers should also disclose if the app connects with social media or includes targeted ads.

Simple privacy policies and disclosures, which clearly delineate what type of information an app collects and how it will be used is the key to keeping the FTC off your back.

In other words, since COPPA is the current law of the land – and the FTC has the power to enforce COPPA standards and levy hefty fines – it would behoove all developers to get a privacy policy ASAP.

Currently, the Apple Marketplace doesn’t require developers to disclose whether or not they share information, but the company insists they reject programs that target children for data collection. Due to the new FTC focus on kids’ apps, Apple will now require applicants to divulge this information when submitting work for review.

The Android market does currently require developers to include descriptions of their data dealings as it relates to their apps — but expect them to also tighten their standards.

Industry Reactions To The Kid’s App Study & Statement

A representative from the Association for Competitive Technology – an app developer advocacy group – pointed out that many developers aren’t being malicious, but instead simply don’t know about the laws associated with selling mobile apps and various federal and state privacy statues. The rep also cautioned, “We also believe that while the overwhelming majority of children’s app makers are well-intentioned, if there are those who operate with malice outside the law, we fully endorse regulatory action by the FTC.”

The Center for Digital Democracy, in support of the FTC’s new rules said, “Both Google and Apple, the two leading mobile app companies, must do a much better job protecting children’s privacy.”

So what should you do if you’re a kids app developer? Consult with a technology lawyer and make sure your program is hooked up with the correct policies. An app lawyer will also walk you through the rules and advise on “how far you can go” without breaking the law.

Another Porn Downloading Lawsuit

illegal downloading lawsuitThere’s another live one from the porn downloading lawsuit files. Filed at the end of January, in the Northern District of California, Liuxia Wong submitted a claim against Hard Drive Productions, Inc. and Does 1-50.

It Started Like Any Other Porn Downloading Lawsuit…

Wong’s porn downloading lawsuit started like they normally do; Liuxia received a settlement letter demanding $3,400, for an act of alleged online copyright infringement occurring on March 28, 2011. The communication explained that Wong could be forced to pay $150,000 if she didn’t settle; it also cautioned that an unsecured wireless router was not a defense.

True to their word, after Wong refused to pay up, Hard Drive filed a copyright complaint on April 22, 2011. Joseph C. Spero – a judge with what could be described as anti-copyright troll leanings – was assigned to the case. Soon after, Hard Drive withdrew their suit without prejudice – meaning they could file again.

But Wong decided to sue back.

Oh, Look! Some Sound New-ish Defense Arguments for Porn Downloading Lawsuits

Wong’s case cites several common illegal downloading defenses. For example, the improper enjoinder argument was used, which highlights that the defendant is receiving the “benefits and services of the court” without paying the proper $350 filing fee.

On behalf of Wong, Yuen also claimed the defendant spat in the face of civil statute L.R. 3-16(b)(1) – which covers certain financial discoveries – by not disclosing that Paul Pilcher owned more than 20% of Hard Drive-associated shares.

Yuen also turned to U.S. copyright statues. According to section 17 U.S.C. Section 504(c), a party cannot collect if infringement happened after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. Since the known published date of the title in question (“Amateur Allure Jen”) was March 3, 2010, and the film wasn’t registered with the copyright office until April 22, 2011 – Wong may trump Hard Drive on a technicality.

In addition to a few other standard porn downloading defenses, accusations of using an unlicensed private investigator and failing to follow proper protocol by first sending a DMCA Takedown notice to the BitTorrent seeders, also appeared in the lawsuit.

…And Then There’s The Porn Isn’t Copyrightable Defense

In addition to the above, Wong highlighted that Article 1 Section 8, Clause 8 of the U.S. Constitution (a.k.a., the Copyright Clause) states that congress is empowered “To promote the Progress of Science and useful Arts by securing for a limited Times to Authors and Inventors the exclusive Right to their respective writings and discoveries.” Yuen the reasons that since pornography doesn’t “promote useful art or science,” it shouldn’t be copyrightable in the first place. The plaintiff’s claim takes it one step further by suggesting that “[t]o create the work, Hard Drive and its agents and/or employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.”

This last point is a new one — and bound to spark legal debate. After all, using the “porn should be illegal” raises some First Amendment concerns.

Are you being harassed by a copyright troll? Kelly / Warner Law can help. Contact us today to set up a consultation.

Right of Publicity Law: Courts Declared Everyone’s A Celebrity On Facebook

Right of Publicity laws
A California court ruled that everyone is a celebrity! What does that mean for Internet law?

At the end of 2011, a California court reached a ground-breaking decision. The case was Fraley, et al. v Facebook. The matter at hand was whether or not Facebook’s “sponsored stories” infringed on various state and federal rights, including “rights of publicity.” The court’s ruling is significant because their decision means Facebook users are now legally considered “famous to their Friends” – a declaration with Internet law implications.

What Is Right of Publicity?

Essentially, “right of publicity” regulations forbid entities to use an individual’s name or likeness without said person’s express consent. For example, a company selling widgets can’t slap Bill Gates’ picture on an advertisement without getting permission from the Microsoft founder first.  Neither can they put a testimonial from Gates on their marketing material without consent.

Notable exceptions to publicity rights exist. First and foremost, publicity rights are state-based and only 19 currently acknowledge the tort. Moreover, newsworthiness trumps publicity rights; as a result, many defend charges by arguing the given matter was of interest to the public. Legal precedent also says that people seeking public office and criminals forfeit their right to these types of privacy protections when stepping into the limelight willingly or through illegal acts.

How Sponsored Stories Work On Facebook

If you’re one of the millions with a Facebook account, then you’ve probably seen a sponsored story or ten. They’re the advertisements along the sidebar. Sponsored stories are usually coupled with images of Facebook users who’ve “liked” the thing being advertised.

What you may not know is that there’s no way to universally opt-out of seeing sponsored stories (you can close them individually). You also can’t opt-out of appearing in them.

Plaintiffs’ Claims Right of Publicity Claims

The group suing Facebook over “sponsored stories” claim the program violates California’s right of publicity statutes. Claimants are using the fact that the price of a standard Facebook advertisement is significantly less than a sponsored story. In essence, the Plaintiffs are saying, “hey look, We’re ‘famous’ to our friends on Facebook, so Facebook can’t use my likeness without financially compensating me.”

In the lawsuit, in addition to California’s Right of Publicity statute, the petitioners argue Facebook is in violation of California’s Unfair Competition Law, various common law regulations, the Business and Professions Code and doctrines of unjust enrichment.

Defendant’s Argument

Facebook’s defense is simple: What people are “liking” on social media sites is newsworthy. And since the Plaintiffs are also claiming their own “fame,” Facebook may very well throw the claimants argument back in their faces for the win.

Will The Internet Change Test Right of Publicity Statutes?

Newsworthiness is the legal axis on which publicity laws balance. As we continue to embrace a gadget-friendly, user-generated existence, the elusive line of what constitutes online privacy will continue to be questioned. Does a person with a one-hit viral video forever give-up their right to privacy? Will every person with a cat blog be considered “famous” or “newsworthy”? Moving forward, courts will be forced to answer the age-old question as to how “newsworthy” is defined in the eyes of the law. Is it anything people are interested in? Or is it something that judges define? Either way, the result could prove problematic if taken to the extreme.

The California court denied Facebook’s request to dismiss the case all together, but they did rule that Facebook users, are, indeed, “famous” to their friends. (So, if you’re one of those people who thinks of yourself as a celebrity, now you can say the US Courts agree.) The judge also threw out the claim that Facebook was “unjustly enriched.”

The implications of this Facebook lawsuit are huge. After all, as Mark Zuckerberg  said, “trusted referrals” are the “Holy Grail of Advertising” – and if companies can get the courts to agree that “everyone is famous and therefore newsworthy” the online legal landscape could be forever altered in ways that privacy stalwarts will find alarming.

Facebook Teaming Up With Washington State AG Against Likejacking

Likejacking Lawsuits
Will Facebook prevail in their likejacking lawsuit?

At the end of January, 2012 news hit the wires that Facebook was involved in another lawsuit. But this time around, it wasn’t angry consumers or countries suing the technology firm, oh no, this time around, it was Facebook who was doing the suing. In conjunction with Washington State Attorney General, Rob McKenna, in late January 2012, Zuckerberg’s lawyer’s filed claims against Adscend Media. The accusations? Engaging in illegal “likejacking.”

What is Likejacking?

Like its predecessor, clickjacking, likejacking is the practice of getting someone to click on something ostensibly deceptive, which causes a different action than what the user thinks they’re initiating. Since Facebook has become the social networking powerhouse, many affiliate marketers use techniques to market products on the platform. A popular method is “likejacking,” which helps to augment the number of likes in a short period of time.

Who is Adscent Media?

Delaware-based Adscent Media is the target of this double-pronged suit. Adscent Media would probably describe themselves as an online marketing and ad firm, while Facebook and the Washington AG may use something more like “spam promoter.”

The Lawsuits Against The Likejackers

McKenna filed his papers with the U.S. District Court in Seattle. The claim argued that Adscent violated the CAN-SPAM Act, Washington State’s Consumer Protection Act, which guards against deceptive business practices, and the state’s Commercial Electronic Mail Act – a bill that makes illegal “the misrepresentation or obfuscation of origin points or transmission paths in electronic communications.”

Facebook’s lawsuit was filed separately in a Northern District of California Federal Court, but the details weren’t discussed in the initial announcement. Facebook’s lead litigation counsel, Craig Clark, did warn: “Facebook’s security professionals have made tremendous strides against this particular form of attack and we are intent on eradicating it completely.”

Wondering about the legality of your online marketing techniques? Aaron Kelly is an Internet lawyer very well-versed in the “technicalities” of tech law. Get in touch and he’ll make sure your operation stays on the right side of the law…innovatively.

The Privacy Tort of False Light Explained By An Internet Lawyer In Plain English

false lightBelieve it or not, The United States Constitution doesn’t mention “privacy” once; but that doesn’t mean invasion of privacy isn’t protected. After all, the fourth amendment guards against unreasonable search and seizures, and the ninth ensures that rights not explicitly mentioned in the Constitution are also protected. As such, many states have False Light invasion of privacy laws on the books.

As a private citizen, you have a right to protect yourself from unflattering and unwanted publicity. The legal concept is known as “False Light.” And as we collectively continue to travel down this Internet-obsessed road we’re on, expect to see more false light lawsuits hitting the courts.

What Is False Light?

False light is a privacy tort often confused with defamation. In fact, some jurisdictions think the two are so similar they’re lumped together in the eyes of the law. The premise behind false light is that private citizens have the right to “protect themselves from publicity, which puts them in a ‘false light.’”
To satisfy false light claims in the eyes of the court, most state statutes demand that:

  • There exists a Publication of false light material by defendant, either online or off, against plaintiff;
  • Actual Malice was involved; and
  • The published material would be considered “highly offensive or embarrassing” to a “reasonable person.”

The Difference Between False Light and Defamation

As stated previously, false light and defamation are very similar. The main difference is that false light statues address damage to one’s dignity, whereas defamation is more about one’s reputation. In other words, false light deals with the impression created; defamation, on the other hand, deals with truth and falsity.

For a person to be lose a false light lawsuit, the plaintiff must prove the defendant acted in “reckless disregard,” however, a false light plaintiff does not have to show evidence of actual harm, unlike in defamation cases.

False Light Jurisdiction

False light is primarily a state-based law.

Interestingly enough, though, due to the Ninth and Fourth Amendments of the U.S. Constitution, some states deem false light protections as a constitutionally protected right and therefore outside of limitation statutes.

Common False Light Defenses

What are some common defenses for false light charges? Most people argue free speech rights and/or newsworthiness. Most false light laws exempt “newsworthy” information from persecution. As such, many a false light litigation centers around what is and is not considered newsworthy – a definition that is only sure to become murkier as citizen journalism and social networking continue to grow.

Notable False Light Cases

Jose Solano, Jr. brought a false light privacy claim again Playgirl magazine after the publication placed his picture on the cover, surrounded by headlines that seemed to suggest that Solano would appear naked in the edition. At first, he won his claim, but the decision was reversed as the appeals court ruled that Solano was a temporary public figure and that the magazine was newsworthy.

While Larry Flynt may have famously won his defamation trial against Rev. Jerry Falwell, he wasn’t as lucky with Jeanie Barton. Barton had an aquatic act that featured a swimming pig and Flynt’s magazine, Chic, published a photo of the act along side some copy only the mind of Larry Flynt could come up with. Sine the photo was a true representation of Barton’s pig act, defamation charges could not be brought, but she was awarded a false light ruling since the “essence” of the piece made the act seem sexually deviant.

In Zeron v. Diamond Broadcasting, a Seattle-based film maker sued an Oklahoma radio station after receiving threatening calls after the hosts of a morning radio program erroneously broadcast Zeron’s phone number and urged listeners to call it and give Zeron a piece of their mind.

You see, it was a few days after the Oklahoma City bombings back in 1995; someone had created an anonymous AOL account using the screen name ZZ03 and used it to promote offensive products about the horrific incident; the person who created the account used Zeron’s phone number. Zeron asked AOL to remove the material and they refused. To make a long story short, once Zeron was able to reach the station and explain the mix-up, they made an on-air correction and announcement, but not before Zeron was inundated with nasty phone calls.

Zeron did not end up winning the false light case, as he failed to prove that the station had acted with a “high degree of awareness to the claims falsity.”

Contact A False Light Lawyer

Do you feel someone has maliciously used your name or likeness in a “highly embarrassing” manner – either online or off? If so and you’d like to consult with a lawyer well-versed in false light litigation, contact Aaron Kelly.

A Pinterest-ing Copyright Infringement Situation

Pinterest, a new-ish social network, like Facebook and Google before them, is settling in for, what looks like, a long ride on the copyright infringement controversy train . Long and bumpy though it may be, the ride is sure to be fraught with less-than-positive publicity — but as they say in the business: there’s no such thing as bad publicity.

Pinterest Copyright Infringement

What is Pinterest?

Pinterest is essentially the Internet’s refrigerator door. People can “pin” their pictures, recipes, artwork and homemade homilies for all to see.  Think of it, also, as your own virtual bulletin board where you can “pin” things found online. Say you see a recipe on a website or a picture of a unicorn that you want to save. With the Pinterest pin, which becomes attached to your browser toolbar after signing up, you pin the recipe or image and it’s saved in your Pinterest account.

Like many social media sites, the pervasive attitude in the Pinterest community is “sharing (and admiring the works of others) is caring.”

Currently, if you want to be a pinner, you either have to be invited by an existing pinner or submit your request to be invited. Yes, there is a waiting line.

Pinterest’s Copyright Infringement Problem

The only fly in the Pinterest ointment, at this point, seems to be the pesky issue of copyright infringement — and it has to do with the way Pinterest is structured. Simply stated, the platform doesn’t make it easy to find the original owners of images.

When an admiring fan of your latest card trick pins it to their Pinterest account and it gets repinned by subsequent fans, your copyrights to the photo might get lost in the shuffle. While that may not be a big deal to some, you’ve just lost your ace-in-the-hole ticket to international card trick stardom. Instead, Johnny Magician has just announced his upcoming appearance on the Letterman show where he’ll be featuring the trick you created.

Google Sets Online Copyright Infringement Precedent

Back in 2006, Google was taken to court for copyright infringement over thumbnail images that weren’t properly attributed to their rightful copyright owners. But Google was vindicated the next year, which set legal precedence. As a result, ironically enough, both sides of the Pinterest copyright infringement issue point to the Google case in their arguments.

The Pinterest supporters claim that Pinterest’s posting of images is no different than Google’s. The naysayers proclaim that since Pinterest’s images are full-size, full-resolution images, the situation is different and the laws that gave Google safe harbor don’t apply to Pinterest.

DMCA Copyright Infringement Avenues

Currently, Pinterest is following the rules outlined in the DMCA. When a complaint is found to be valid, Pinterest need only remove the image. Trying to trace the image back to its original poster is no easy task, especially when it’s been repeatedly repinned from one place to another. If that image is yours and it’s been repinned more often than a 70s Farrah Fawcett poster, you’ll need to fill out a formal DMCA Notice of Alleged Infringement. Pinterest will then take action as they see fit.

If You Upload It, You Better Own It

Here’s the current rule as outlined in Pinterest’s Terms of Service: if you upload something to Pinterest and they sell it, which they can do, and it subsequently becomes embroiled in copyright infringement litigation, which it could, guess who’s butt is on the line?

Even without malicious intent, it’s so easy for a Pinterest user to pin something that could be an unintentional infringement of the owner’s copyright. That fact doesn’t escape the vengeful eye of the SOPA supporters who are lurking on the sidelines.

We’ll see how this Pinterest copyright infringement issue turns out; in the meantime, if you’re in need of some copyright protection or enforcement, give the Kelly Law Firm a buzz.

It’s Not the Size of the Privacy Policy That Matters, It’s The Language

So, you’ve started an online business and you’re not sure what kind of privacy policy you need. Can it be a free one you find online? Should it be filled with lots of legalese to make it sound more professional? How long does your privacy policy need to be?

If these questions have been on your mind, you’re about to find out the answers from Aaron Kelly – an Internet law specialist who has helped hundreds of companies –both big and small – with their online contract needs.

Q: Is it fine to just use a free online privacy policy I find on the Internet?

A: Sure, it’s fine; but the real question is whether or not it’s smart to do so. If you don’t have a legal background, it’s not advisable to grab any ol’ free contract you find online. Who knows what provisions may be hidden within the legalese. By using a free online privacy policy, you may actually find yourself in a lot of hot legal water since you didn’t understand the provisions contained within.

Q: Should the privacy policy I use be filled with tons of legal-ease?

A: Most people think that having a privacy policy that’s filled with lots of big legal words is the best way to go, but they’re actually wrong. Laws are changing, and these days, it’s more important to have a privacy policy that people – even ones to haven’t attended law school – can understand.
The best privacy policies are ones that are easily understandable, yet contain the necessary provisions to protect you against legal action.

Point in case, Google. Just recently, they launched a huge public relations campaign to unveil their new, shorter, easily-understandable privacy policy. If laws weren’t headed that way, the Internet mega-corp wouldn’t have made the move. In other words, the fact that Google is sprucing up their online privacy policy to be digestible by the masses, means that you, too, should be doing the same thing.

Q: How long should a privacy policy be?

A: The length of a privacy policy is directly related to the type of website it governs. If you have a simple website that only collects data via a contact form, you’re privacy policy will be much shorter than someone who operates an e-commerce site.

Internet law is changing, and while there is currently no explicit statute that governs all online privacy, there are several different rules which make having an online privacy policy a must for most websites in operation today.

If you have a website and have yet to protect it with an attorney-approved, easy-to-understand privacy policy, get one soon.
It could save you a giant legal headache down the road. And remember, it’s not the size of the policy that matters, instead, it’s the readability that matters.

Online Defamation Does A Number On Lawyer’s Reputation

online defamation Internet libel
High Profile Media Personality Fighting Internet Defamation Claims.

Shakespeare said it best, “Hell hath no fury like a woman scorned.” And no man knows the truth of those words better than former Norwalk, Connecticut prosecutor Matthew C. Couloute Jr.

When several of the young attorney’s former lovers flamed him on the website, their blast of virtual vitriol became the top search result on Google and landed him several headlines in the New York Post.

Couloute’s Background

Prior to his online infamy Mattew C. Couloute Jr. enjoyed a legal career that would inspire envy in most. He was the youngest attorney to serve as a prosecutor for the state of Connecticut; he worked for the National Football League; AND he served as a consultant for MSNBC and Court TV. But sadly his ex-girlfriend’s revenge posts are what brought him the most fame — and now an online defamation lawsuit.

Basis for Online Defamation Lawsuit Claims

Through a quick glance at Matthew C. Couloute Jr.’s profile, one reads from an anonymous poster that Couloute has  allegedly “lied and cheated his entire way through his 40 years of life.” The comments section of the page, which boasts ninety-one entries, includes posts that caution readers to “be forewarned,” as Couloute is “scum”, and that upon meeting him one should “run far away.”

In an interview with the New York Post Matthew C. Couloute Jr. attempts to shed light on his Internet reputation problem and girl troubles. He describes two of his dalliances with, former roller-derby star “Malibu” Stacey Blitsch and Amanda Ryncarz, as “youthful indiscretions.” And then further explains his past relationship with Blitsch by saying “Everyone has that person they dated in their life where you say, ‘Oh, that’s a mistake.’ I have a child with my mistake.”

Although Couloute’s clarifications won’t win him chivalry points, he cites the online remarks as the source of his social scorn and asserts that they have injured his reputation. “The posts came up when I was purchasing a house with my wife. Clients ask me about what’s going on… Even my mom was upset with me.” But Matthew C. Couloute Jr. did not take is digital disparagement lying down.

Couloute’s Online Defamation Lawsuit

Couloute filed a lawsuit against two of his exes whom he presumed to be the generators of the unflattering posts. In his suit, Couloute claims that Rycarz and Blitsch, intended to do grave “damage to his prospective business relationships” through a series of “malicious” reports posted on an online slam-site.

But does he have a case?

Online defamation poses an interesting legal challenge. On the one hand, the advice shared on can be described as free speech, which is protected by the First Amendment. But posting mean messages about an ex-love online is not the same as dishing about him or her over drinks. Word of mouth travels at the speed of speech, but an online post can disseminate gossip at the speed of light, attracting millions of hits in a matter of minutes.

So if you want to play it safe, it may be better to keep your thoughts to yourself and leave the cyber-bashing to those with excellent legal counsel.

ATTN Online Marketers: New FCC Text Message Advertising Laws Will Force A Change In The Way You Do Business

FCC Logo
The FCC Recently Announced New Text Messaging Regulations That Will Change the Online Marketing Landscape.

New Text Message Advertising Laws

“Too many telemarketers, aided by auto-dialers and pre-recorded messages, have continued to call consumers who don’t want to hear from them,” began FCC Chairman, Julius Genachowski, upon announcing a new set of FCC marketing regulations set to be enacted this year.

Last Wednesday, February 15, the Federal Communications Commission (FCC) announced a whopper of a telemarketing rule change. The new statues will take affect after publication in the Federal Registrar, which usually takes between two to six months.

Every online advertiser should run, not walk, to ensure they’re in compliance with these new text message advertising statutes, as the FCC does not mess around when it comes to initiating investigations. And if they find you guilty, you could be looking down the barrel of a quarter million dollar fine.

So what are these new, possibly marketing-channel-killing, rules? It’s all outlined below.

New FCC Robocall and Text Message Advertising Laws

Simply stated, the new FCC robocall and text message advertising laws make it illegal for telemarketers to place calls or send texts without express written consent from the consumer. Additionally, People must always be given an opportunity to opt-out – even after opting-in.

The new FCC statues only apply to telemarketers – public schools, pharmacies and politicians still have carte blanche to robocall and text unsolicited messages to their heart’s content.
The FCC is urging private citizens to use the “do-not-call” list as protection in the event of a rogue robocall or text message.

Major Changes From The Old Telemarketing Laws

The major change is the elimination of the “preexisting business” provision. Under the new laws, marketers cannot claim “implied consent” simply because a consumer had previously done business with a given entity.

Another notable change is that automated text messages now join the legal-ranks of automatically dialed and prerecorded telephone messages.

What The New FCC Text Message Advertising Laws Mean For Internet and Mobile Advertisers

So, what does this all mean for you ninjas of Internet and affiliate marketing?
Perhaps most importantly, you should be aware that the new rules could potentially kill some “offer paths” — depending on how you choose to set up the required business processes.

Super-safe compliance would mean an opt-in notice at the top of the transaction. That being said, the laws are still brand new and untested – so you may be able to get away with a checkbox of acceptance right before the point where one would have to, say, enter their phone number.

Your best bet is to contact an Internet lawyer well-versed in FCC and FTC regulations for counsel. This law change is a major one, and you don’t want to get caught with your pants down.

A Final Warning About The New FCC Text Message Advertising Laws

If you use text messaging as a marketing tool, get in touch with an online advertising lawyer today. This law change is not to be ignored – getting caught could cost you your business. After the new telemarketing laws are published in the Federal Registrar, you’ll have 12 months to establish a written consent process and only 90 days to implement an interactive opt-out mechanism for any automated text-message ads you send.

The sentence “Any type of phone call or text to a wireless device needs written consent,” which was spoken by an FCC representative at the announcement, should be on the top of every online advertiser’s mind.

Want to make sure you’re implementing the new FCC text message advertising standards correctly? Contact Aaron Kelly – an Internet lawyer who has a special talent for identifying the “tech” in “technicality.”

The International Online Defamation Lawsuit of Han Han

Chinese Blogger Han Han
Popular Chinese Blogger, Han Han, Filed An Online Defamation Lawsuit one day, and took it back the next. What Happened? Image Source:

Last week, international media outlets were abuzz over an online defamation lawsuit involving China’s Mario Andretti/Dave Eggers, Han Han and the Asian James Randi, Fang Zhouzi.

Millions of Millennial-gen Chinese are invested in the details of this cyberlibel lawsuit — and it’s sure to captivate anyone with even a passing interest in mega-celebrity, conspiracies or vanity lawsuits.

Tabloid Worthy Online Defamation Lawsuit: Who are Han Han and Fang Zhouzi, You Ask?

Meet Han Han

Han Han is a blogger/author/race-car driver who recently filed a few online defamation lawsuits against his Internet adversary, Fang Zhouzi, a self-styled Internet “science cop” who’s out to right the oh so scientific wrongs plaguing the planet.

Han Han is a big deal in China, a mega, dare we say, meta-celebrity. He’s not just any blogger, he’s the most prolific, most popular blogger in a nation of 1.4 billion people, possibly making him the most popular blogger in the world.

But, wait, he’s much more than even just that.  Hollywood triple threats — model/actress/singers and writer/producer/actors — have nothing on Han Han.  In addition to his blogging and rally-car driving, the impresario also dons the monikers best-selling author, literary magazine publisher, and singer…for now (surely, actor is soon to follow).

Suffice it to say, for more than 10 years, Han has “smashed his name” into Chinese literary history with five published novels, numerous essays, and a blog that receives some 300 million hits a month. He’s a super-star among the Post-80’s (children born in the first decade of the one-child policy from 1980-1989) “netizens” of China.

In September 2010, the British magazine, New Stateseman, declared Han the 48th “Most Influential Figure” in the world.

But Han Han has has some public relations problems, too. Sure, he’s got throngs of fans, articles of adulation, and a considerable amount of fame — a very resourceful high school dropout indeed. But alas, as is the case with many a celebrity, the attention has also brought criticisms and accusations of fraud.

Which brings us to Fang Zhouzi.

Meet Fang Zhouzi

A biochemist/popular scientific writer/founder of New Threads, Fang Zhouzi — not to be outdone in the triple threat category game — is also a muckraking science-cop who is sleuthing the academic world for alleged academic corruption.

Fang is his name and finding fraud is his game.

Tabloid Worthy Online Defamation Lawsuit: Fang’s Internet Hate-On For Han Han

By virtue of his many successful pursuits, Han Han has drawn criticism and speculation on his prolific oeuvre.  People wondered, “How can someone create such an abundant amount of writing with his many interests?”

Fang tried to answer this question with ghostwriting accusations, proposing that Han’s father, Han Renjun, a novelist and magazine writer, was the actual author of his son’s body of prose.

Inquisitive? Perhaps. But it’s not a far-fetched idea for China’s very own James Randi.  After all, let’s be honest, ghostwriting is done on a fairly regular basis among the celebrity elite — (I mean, have you noticed that Biden never gaffes in his emails?).

Tabloid Worthy Online Defamation Lawsuit: Han Initiates A Legal Fight With Fang

Best known for his writing and not to be taken lightly, Han Han has declared that critiquing him is one thing, but if you call him on ghostwriting, you’ve got a libel lawsuit coming your way.  True to his word, Han filed a defamation claim, against Fang and a second defendant, Liu Zeming, for the comments he made on the Fang’s website, in the Putuo District People’s Court. Not one to “go-small,” Han actually filed two defamation lawsuits against his opponents.

It was big news in Shanghai when the court accepted the suit. The online defamation duel between Han and Fang was on, but then Han pulled the claim one day later. Huh, Han?

Tao Xinliang, an attorney for Han, explained in a statement the reason for reversal: Han “didn’t want any ordinary netizens to be involved in the case because they just commented or forwarded microblogs.”

However, now, the status of the second lawsuit is in question.  According to court officials at Jinshan court, where the new claims were to be filed, all the court materials have been withdrawn.  The defamation lawsuit against Fang seems to have materialized and disappeared, like an illusion.

I’m sure this is not the end of this online defamation showdown. To keep up with all the juicy tid-bits, slap your email address on our Internet law-newsletter sign-up form and get the latest Han Han updates delivered directly.

(Oh, and of course, if you’re in need of an online defamation lawyer, give me a shout.We’ve helped many with their various Internet defamation issues.)


Comparing DMCA and SOPA

Copyright Law Summary
Comparing DMCA and SOPA: What's the same and what is different?

SOPA is the big online copyright legal story of the year thus far. Which got me thinking about the good ‘ole Digital Millennium Copyright Act (DMCA) — the current work-horse of Internet intellectual property law.

In this article we’ll briefly review each bill. So grab a cold one and settle in as we de-construct the various intellectual property laws currently in the news and try to make sense of it all in plain English.

Comparing DMCA and SOPA: What the Heck is DMCA, Anyway?

DMCA, for those of you who don’t obsessively follow the law, is the Digital Millennium Copyright Act. Thanks to anti-circumvention statues in the bill, the DMCA is the US copyright law that makes it illegal for you or I to manufacture devices or services meant to access or reproduce copyrighted material.

It’s also the law that outlines the legal steps one should take if they feel their copyrights are being infringed upon.

Comparing DMCA and SOPA: Enter SOPA, Y’all

On October 26, 2011, the Stop Online Piracy Act (SOPA) was introduced as a US bill by Texas (R) Rep. Lamar S. Smith. The bill’s purported original intention was to round up and remove rogue websites from the Internet’s virtual “phone book.” If a site was targeted as “rogue,” the act, as it was written, would make it legal to quickly remove the site from the domain name system — and poof, gone! Now you see ‘er, now you don’t.

Lamar’s plan also included, if necessary, the issuance of court orders to keep payment facilities and advertisers from doing business with the likes of Google, Wikipedia, Facebook. Under SOPA, they would be forced to remove any links to offending websites that allowed any copyright infringing. If they continued to link to those websites that harbored the infringing material, they’d be in danger of being closed down and prosecuted, too.

Comparing DMCA and SOPA: One Bad Apple Don’t Spoil the Whole Bunch!

If one bad apple infringes upon copyrighted material and posts it on a website, the DMCA currently allows “safe harbor” protection to Internet sites from any liability based on the actions of that one bad apple. With that in mind, opponents to SOPA claim the proposed bill threatens innovation and free speech. The enforcement of the laws would block access to entire Internet domains because of one posting on a blog or webpage.

Even libraries have expressed concern that they could be exposed to prosecution. The specters of First Amendment violations and censorship suddenly arise.

You Say You Want a Revolution: Anti-SOPA Day

On January 18, 2012, Reddit, Wikipedia and 7,000 of their closest website friends either closed their doors or otherwise illustrated their protest of the SOPA. They did so with protest banners on their websites in an effort to raise public awareness.

On January 19, self-proclaimed members of Anonymous (a “hacktivist” group) imposed their wills and skills on several pro-SOPA websites like RIAA, and more. They shut those bad boys down or slowed them up a bit with denial of service attacks in retaliation for the D.o.J. (Dept. o’ Justice) shutting down Megaupload on that same day.

SOPA: The Post Script

To clarify, rectify and mollify, an aide to Rep. Lamar Smith insisted that an individual posting a video on YouTube of their adorable child adorably singing a copyrighted song would not be considered a felon. Suspiciously, however, the aide did not address the issue of singing parrots, a burning question on the minds of many.

In December, 2011, both bills were tabled indefinitely. It would appear that intellectual property rustlers and renegade rogue websites will have their way with us for now. The DMCA, the prevailing law of the land, will have to stand on its own as the sole guardian to our intellectual property. If history has taught us one thing, however, it is that eternal vigilance is our duty. While it certainly is our God-given right to be naive, it only makes us look bad. Keep your eyes to the skies, the rogues are out there.

DMCA Definition: The Digital Millennium Copyright Act Explained

The Digital Millennium Copyright Act or DMCA is currently one of the laws of the land when it comes to online intellectual property issues.

Lately, the Digital Millennium Copyright Act (DMCA) has stepped into the spotlight as a result of the ongoing SOPA and PIPA debates. Passed unanimously on October 12, 1998, the DMCA is the current law of the land when it comes to various online copyright legalities.

The Digital Millennium Copyright Act amended Title 17 of the United States Code, extended copyright reach, established new anti-circumvention laws, limited the liability of online service providers (OSPs), and made boat hull designs a protected class. The bill was broken out into five sections — below is a summary of each.

DMCA Title I: WIPO Phonograms Treaties Implementation Act

The first section of the DMCA changed the law so U.S. Code complied with the WIPO Treaty. It’s the portion of the act that addresses various anti-circumvention statues. Anti-circumvention laws dictate what one can and cannot do with a piece of technology.

Title I of the DMCA also disallows for reverse engineering in certain instances; and, perhaps unintentionally, the Act effectively created a monopoly for Macrovision in the video recording copyright prevention arena.

DMCA Title II: Online Copyright Infringement Liability Limitation Act

Perhaps the most talked about part of the DMCA falls under Title II of the bill. It’s the part that absolves ISPs, OSPs and certain website operators of liability when users of their site commit acts of intellectual property infringement.

Title II also outlines the notification steps one must take if they feel a website has infringed on their intellectual property rights – a document that has come to be known as a “DMCA Takedown notice.” This section also details what one can do if they’ve been sent a DMCA Takedown notice and want to fight the claim.

Title II also outlines provisions that allow for subpoenas to service providers for users’ identities.

DMCA Title III: The Computer Maintenance and Competition Assurance Act

Essentially, Title III of the DMCA makes way for computer repair professionals to create temporary back-up copies of certain digital information when working on a project, without fear of prosecution.

Title IV: Miscellaneous Regulations

DMCA Title IV of the DMCA is a potpourri of various statues. The section spells out the role of the Copy Right Office of the United States; sets transient statues for broadcasters; establishes rules to allow for long distance education; outlines phonorecord provisions for libraries with recording collections; and lastly, section IV outlines a collective bargaining agreement that has to do with movie rights.

DMCA Title V: The Vessel Hull Design Protection Act

The last section – Title V – of the Digital Millennium Copyright Act has very little to do with the digital millennium. Instead, Title V deals with boat hull designs. Previously, boat hull designs were treated as utilitarian and therefore didn’t qualify for copyright protection. The DMCA, however, reversed this stance, thus making it possible for boat hull designers to register their designs for intellectual property protections.