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Internet Law Attorney http://www.aaronkellylaw.com Mon, 18 Apr 2016 18:56:03 +0000 en-US hourly 1 Social Media Law: Keep Office Dirt Offline (Or Risk A Lawsuit)! http://www.aaronkellylaw.com/social-media-law-keep-office-dirt-offline/ Mon, 18 Apr 2016 18:55:41 +0000 http://www.aaronkellylaw.com/?p=10639 Read More]]> HR employment social media
It’s rarely a good idea to post about HR issues on social media.

A few weeks back, Yelp! (“Yelp”) had an online spat with an ex-employee. The incident got messy — and history will probably remember it as a Yelp social media faux pas. But right now, the incident serves as a reminder to startups and businesses:

Be careful what you post online about internal events — both financial- and HR-related.

Keep HR Matters OFF Social Media

In recent months, Yelp employees have clocked the company with a few PR blows. Some punches backfired on the would-be whistleblowers, but recently, Yelp may have miscalculated its response to a disgruntled ex-employee over social media.

The Incident: Employee Trashes Yelp After Being Let Go

A single mother — recently hired then fired from Yelp — took to Medium.com and vented her frustrations. According to the former Yelper, her pink slip was payback for requesting unpaid leave to be with her ICU-suffering, brain-injured partner who was hanging on to life by a thread after a serious accident.

Yelp, however, had a different story. According to them:

“Yelp employs thousands of people and provides new job opportunities to hundreds each year. We provide extensive training and significant benefits to our employees, as well as guidance for those with performance issues.

“Unfortunately, we had to part ways with [Name Redacted] due to repeated absences (10 of her 59 workdays with Yelp) despite many exceptions to accommodate her needs. We provided multiple, documented warnings and ongoing performance counseling specifically related to reliability and attendance issues. Sadly, this role was not a good fit. We wish her the best.”

How do we know this is Yelp’s official version? Like many millions, we read it on the company’s Twitter feed.

Did Yelp Mess Up By Airing HR Issues On Social Media?

Since the former Yelp employee submitted a digital mountaintop to tell the world about her termination, Yelp probably has very little to worry about, legally speaking. Some pundits hypothesize that Yelp may have violated California’s privacy law, but it’s a stretch.

The consensus? Yelp may have leapt over a decorum boundary, but probably not a legal one.

Are You Staying Within Social Media Marketing Bounds?

As of now, this dustup seems to have dissipated (though the employee has since challenged the accuracy of Yelp’s statement — so a potential defamation lawsuit may be on the horizon). But for now, this incident should serve as a warning.

A warning for what, you ask?

A warning to keep HR discussions off social media.

It’s just not wise. No matter how unjustified the accusations, businesses should strive to take the high road — for reasons both PR-related and practical. Not only is employment law complicated, and airing dirty laundry could get you into trouble in some instances, but in situations like this Yelp incident, the optics veer towards a Goliath trying to beat up a beleaguered, but righteous, David.

Make Sure You’re In the Social Media Marketing Clear

Are you absolutely, positively, 100% sure your online marketing efforts are above the regulatory board? Do you properly hashtag your promotional tweets and ‘grams? Do your affiliates (because believe it or not, you may be responsible for their actions, too)?

Our team has helped hundreds of entrepreneurs, startups and established businesses reach their sales goals by ensuring they could push the limits without crossing the legal line. Let’s chat about your social media marketing campaign; we may be able to help protect assets and boost profits.

Article Sources

Townsend, Tess. “Yelp’s Tweet About Fired Employee Could Spell Legal Trouble.” Inc.com. Web. 18 Apr. 2016. <http://www.inc.com/tess-townsend/yelp-tweet-raises-concerns-privacy-defamation.html>.

“An Open Letter To My CEO.” Medium. 2016. Web. 18 Apr. 2016. <https://medium.com/@taliajane/an-open-letter-to-my-ceo-fb73df021e7a#.1tmd3gsdr>.

Bariso, Justin. “Another Disgruntled Yelp Employee Took to Medium to Complain. And Then This Happened.” Inc.com. 3 Mar. 2016. Web. 18 Apr. 2016. <http://www.inc.com/justin-bariso/another-open-letter-to-yelp-reveals-the-companys-biggest-problem.html>.

Townsend, Tess. “Yelp’s Tweet About Fired Employee Could Spell Legal Trouble.” Inc.com. 2 Mar. 2016. Web. 18 Apr. 2016. <http://www.inc.com/tess-townsend/yelp-tweet-raises-concerns-privacy-defamation.html>.

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Pay By Selfie Arms Race: Amazon.com Pulls Ahead? http://www.aaronkellylaw.com/pay-by-selfie-arms-race-amazon-com-pulls-ahead/ Tue, 12 Apr 2016 18:36:46 +0000 http://www.aaronkellylaw.com/?p=10603 Read More]]> Amazon Filed For A Coveted Patent; What Does It Mean For Consumers & Sellers?
Amazon pay by selfie patent
Amazon filed paperwork for a sought after patent.

What’s the next big e-commerce thing? Pay by selfie — and Amazon recently filed a patent application for the process.

Analysts speculate that the company will pair the facial recognition system with a payment authentication method it also owns.

By simplifying the checkout process — this new technology could invigorate consumerism…a super boon for sellers and marketers.

What Other Players Are In The Patent Race?

pay be selfie alibaba
Alibaba is one of the companies in search of a selfie payment solution.

Amazon isn’t the only horseman in the pay-by-selfie hunt. MasterCard’s lab has been hatching a picture payment solution, as has China-based, online power-player, Alibaba.

Though paying by selfie technology has yet to land on U.S. shores, selfie-login is here. Last year, the USAA — a financial services group that works with U.S. Military families — implemented login selfies.

Is Pay-By-Selfie Safe? The Way Of The Future?

Is pay by selfie safe?
The selfie payment process is expected to be very safe.

Pay-by-selfie proponents argue that facial recognition transactions are safer than password systems.

You may assume it’d be easy to trick the program with a picture or video. But engineers solved the problem by incorporating a prompt — smile, tilt your head left, blink twice — to verify personhood.

Now, of course, somebody — (probably several somebodies) — somewhere will figure out a way to game the system. That’s just par for the technology course.

Prediction: Pay-by-selfie won’t be any less safe than using a credit card and pin.

An Internet Law Attorney for Today’s Entrepreneurs

Private label e-commerce lawyer
Get in touch with any of your private label business or e-commerce legal questions today!

The e-commerce market is exploding. Savvy entrepreneurs realize there’s money to be made in private label selling and marketing. But to effectively tap the industry’s well, you must be operating smartly — and operating smartly means making sure you’re standing on firm legal ground.

Our team will do a comprehensive audit of your operation. We’ll make sure you’re not inadvertently breaking any laws or flouting regulatory guidelines.

And during the process, we can sometimes suggest small structure and workflow tweaks that would allow for greater profit potential and asset protection.

Our team is here to help folks who are:

  1. Being targeted by hijackers and / or counterfeiters;
  2. Suffering through an account suspension;
  3. Looking to trademark, patent or copyright products or marketing materials;
  4. In need of private label lawyer to draft, negotiate and enforce MAP agreements;
  5. Considering action against defamatory reviews;
  6. Having an e-commerce challenge that needs professional solving.

We’ve been in the Internet law space for a long time. In fact, we’re probably one of the first firms to concentrate on legalities associated with the digital supply chain — online entrepreneurs & product marketers, Web designers & developers, in addition to cloud-based tech startups.

Head here to read what clients have to say. Then hop here to read more about our firm. Or, better yet, just pick up the phone, give us a ring. We’ll chat about your situation and hopefully start working on some solutions.

Article Sources

Rey, Justin Del. “Amazon Wants the Patent for Pay-By-Selfie.” Recode. 14 Mar. 2016. Web. 18 Apr. 2016. <http://recode.net/2016/03/14/amazon-wants-the-patent-for-pay-by-selfie/>.

Rao, Leena. “Amazon Is Trying to Patent Paying With a Selfie.” Fortune Amazon Is Trying to Patent Paying With a Selfie Comments. 2016. Web. 18 Apr. 2016. <http://fortune.com/2016/03/14/amazon-patent-selfie/>.

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FBA Buzz: Is The Amazon Marketing App Meant To Fend Off Walmart? http://www.aaronkellylaw.com/fba-amazon-marketing-app-walmart/ Wed, 10 Feb 2016 16:40:17 +0000 http://www.aaronkellylaw.com/?p=10587 Read More]]> Amazon marketing app
Will the new Amazon marketing app keep sellers from jumping to Walmart?

Right now, Amazon.com is a Wall Street darling. Despite a recent stock dip, its numbers bewitch investors; the offerings delight disposable-income-America; and, in semi-Shaolin fashion, Amazon has studiously molded itself into a Jedi master (if not the Kylo Ren) of supply chain logistics. The profitable cherry on top? Fulfillment by Amazon (FBA) – a program for third-party sellers – has grown 65% over the past 12 months.

But successes aside, cautionary chatter still circulates (“Can Amazon keep an iron grip on its ecommerce dominance?”). Plus, Walmart is starting to woo third-party sellers, which has some people wondering: “Are we on the precipice of an ecommerce cage fight?”

So, what is one way that Bezos & co. can stay on top? Boost FBA seller stickiness.

A New Tool For Amazon Marketing

In its latest attempt to attract and keep marketing entrepreneurs, Amazon developed a “selling coach” app that allows FBA users to:

  • Track inventory;
  • Monitor sales; and
  • Get up-to-the-minute advice and pricing suggestions based on site activity.

Beyond the “selling coach” app, Amazon is also helping FBA users with:

  • Translation services (to help folks enter the international market); and
  • Advice on how to improve listings.

Amazon’s Developing Programs to Attract and Retain Marketers

Amazon is openly courting marketers. Which makes sense; forty-five percent of Amazon merchants are “outside” sellers. In the past year, the FBA roster alone has exploded by sixty-five percent. The numbers communicate the story: Fulfillment by Amazon is a wildly successful venture; and the more money FBA marketers make, the more money Amazon makes.

Merchant Fulfilled Prime Eligible

In addition to the new app, the Amazon marketing team is testing out a new concept – “merchant fulfilled prime eligible.” The program baits warehouse-equipped companies with Amazon’s favorable shipping rates. A win-win: Amazon expands its brand, but saves money on warehousing costs and participating companies save on shipping costs.

Hook Up With An Fulfillment By Amazon Lawyer

Kelly Warner Law is a friend to many online sellers and FBA marketers. Our private label attorneys have the knowledge you need to profit. Over the years, we’ve guided countless clients with FTC issues, marketing compliance and other ecommerce initiatives. The best part: we’re not just lawyers; several of our team members are serious product marketers in their own rights.

Get in touch today. We’ll chat about your Amazon marketing questions and guide you towards the most profitable (and protected) path.

*Prices adjusted for FBA marketers and sellers – even folks just starting out.

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COPPA Lawyers Explains 2016 Imaging Technology Update http://www.aaronkellylaw.com/coppa-lawyer-facial-verification/ Mon, 01 Feb 2016 11:20:59 +0000 http://www.aaronkellylaw.com/?p=10577 Read More]]> COPPA Lawyer update
In this article, a COPPA lawyer explains the latest changes to the law involving facial imaging technology.

Beep! Beep! Make way for a caravan of “COPPA Cassandras.”

The Federal Trade Commission approved a new Children’s Online Privacy Protection Act (COPPA) verification process. And you know what that means: children’s advocacy groups are sounding alarms. What’s the latest COPPA complaint? In short: “Tricky kids are tricky – tricky enough to weasel their way around this photo verification process!”

A 30-Second COPPA Summary

First, let’s quickly review COPPA. Here are the main points:

  • At the time of this writing, COPPA is one of the few federal online privacy laws in the United States.
  • Its goal is to protect kids aged 12 and under from the evils of the Internet.
  • The crux of COPPA is the verification requirement. Parents and guardians must consent before a digital platform or app is allowed to collect information from minors or let them participate on certain websites.

Click here to read more about COPPA rules »

The New COPPA Verification Method: Facial Recognition

Previously, guardians could satisfy the COPPA verification requirement via:

  • Credit card authorization;
  • Mail in consent;
  • Fax in consent;
  • Calling an 800 number; or
  • Sending an electronic scan.

Now, parents have the option of using the Face Match Verified Photo Identification (FMVPI) method – or in the colloquial parlance of our time, “selfie verification.”

How does it work?

  • First, the parent or guardian submits a government issued identification picture (i.e., driver’s license or passport pic).
  • Second, the parent or guardian takes a selfie with either a smartphone or webcam and submits it.
  • If the two images match, then verification is complete and the biometric data is erased within five minutes.

Naysayers: “COPPA Facial Recognition Method Unsafe Because Today’s Tots Are Tricky.”

COPPA is frequently amended. And every time officials update it, someone voices concern about the change. The Facial recognition verification amendment is no exception; concerned parties have taken to the Internet, flash mobbing a cacophony of caution.

So, what’s the main gripe about the new COPPA verification method? In a phrase: high trickery potential. The anti-FMVPI camp insists that sneaky kids will cajole “willing adults” (i.e., sketchy adults) into posing as their parents or guardians. Other folks opposed to imaging technology verification also argue that today’s wee-ones are more than savvy enough to:

  1. lift mom’s or dad’s license without mom or dad noticing;
  2. take a picture of mom or dad with a smartphone or webcam; and
  3. submit both with neither mom or dad the wiser.

After considering the potential for deceit, regulators felt the concerns were overblown because the system incorporates appropriate safeguards. A proponent of the imaging technology explained that measures are in place to “reasonably [calculate], in light of available technology, to ensure that the person providing consent is the child’s parent.”

Who Needs To Follow COPPA Rules?

Since COPPA’s ascendance into U.S. federal law books, there’s been confusion as to who must follow the rules and who is exempt. And, to be fair, the confusion was understandable; language in the early iterations of the bill was, shall we say, vague.

Yes, I want to speak with a COPPA Lawyer »

But these days, edits have been made, and clarifications added. Here’s the COPPA bottom line:

  • If your website or app, in any way whatsoever, caters to children aged 12 and under, adhere to COPPA rules – even if you don’t target kids; even if you buried a clause, in the terms, forbidding minors from using the site. If a website or app could be attractive to the kidlings – due to animations or color schemes or topic matter – follow COPPA.
  • If you operate or develop an advertising distribution app – or any other type of plugin – you, too, are responsible for following COPPA protocol.

Want to make sure you’re on the right side of the legal COPPA fence? Chat with an attorney who focuses on Internet law. It’ll only cost you a couple of hundred dollars, give you peace of mind, and maybe save you millions of dollars in sanctions.

Consult With A COPPA Lawyer

Are you ready to speak with an experienced COPPA law attorney? If so, get in touch with Aaron Kelly. A top-rated lawyer, Aaron maintains high ratings on AVVO, in addition to a preeminent AV rating. Want to know more about the guy? Click here for his bio.

COPPA violations are expensive. Avoid them. Partner with an experienced COPPA lawyer – one who will work to keep you on FTC’s good side.

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European Commission Hyperlink Controversy http://www.aaronkellylaw.com/eu-hyperlink-controversy/ Tue, 12 Jan 2016 13:03:29 +0000 http://www.aaronkellylaw.com/?p=10538 Read More]]> hyperlinkBy now, you’ve probably heard the hype: “The European Commission [EC] is about to ruin the Internet by making people pay for hyperlinks!”

But you can relax. Per usual, the cautionary bark is likely more threatening than the potential, actual bite. Despite the headlines, the chance of European officials turning links into toll booths are about the same as Fox News turning liberal.

That said – current EC conversations about online copyright and cross-border harmonization of the digital market should raise an eyebrow or two. So, let’s break it all down.

Why are people saying that the European Commission is going to get rid of hyperlinks?

Broadly speaking, for the past several months, European Commissioners have been debating “ancillary copyrights.” What are ancillary copyrights, you ask? According to the Computer and Communications Industry Association, ancillary copyright is:

“The right to impose a special levy on search engines and other online platforms providing the public with short fragments of news text, including quotations.”

Julia Reda, a member of the European Parliament, can fairly be fingered as the person who sounded the 2015 hyperlink alarm. On social media, she warned:

the European Commission is preparing a frontal attack on the hyperlink, the basic building block of the Internet as we know it.

In other public statements, she further cautioned:

“The Commission is considering putting the simple act of linking to content under copyright protection.”

“[E]ach web link would become a legal landmine  and would allow press publishers to hold every single actor on the Internet liable.”

Is it fair to call Reda’s tweets about hyperlinks, hyperbolic?

Well, yes and no. If we take a “just the facts, ma’am” approach, the truth is that the word “hyperlink” appears in the document the same amount of times the word “privacy” appears in the U.S. Constitution – none. That said, people point to similar language used when Spain and Germany were debating – and eventually passed – restrictive “ancillary copyright” laws.

Blogs, like TheConversation.com, who believe that Reda may be prematurely sounding the alarm, point to the decision in Svensson v Retriever Sverige. In that ruling, the “Court of Justice of the European Union decided that if the content had been made available to the public already, then providing a web link even without the permission of the author could not amount to copyright infringement.”

The Vortex of the Hyperlink Inhalation Conspiracy

What the EC document DOES mention is “Right of Communication to the Public.” A quasi-legal term of art, the phrase is typically understood as “copyright owners’ […] right to decide the time and manner in which they [make] their content available to the public.”

Spain and Germany: The Lands Where Search Engines Shell Out For Content

In January 2015, Google peaced-out of Spain. Why? The “Google Tax.” [DUN DUN DUN!] The mother of online copyright levies, Spain’s so-called Google Tax “requires online news aggregation services to pay a charge to publishers for indexing and using fragments of their stories.” When the law went into effect, Spanish publishers allegedly lost 10 million pounds on account of fewer visitors.

Germany, like Spain, has an ancillary online copyright law called Leistungsschutzrecht [try and say that ten times fast], which:

“expressly holds search engines liable for making available to the public parts of ‘press products’ in search results, thereby creating direct liability for the automated indexing processes by which search results are generated.”

Much to the chagrin of small business advocates, Google was excluded from the statute. “Why was Google exempted, but not smaller search engines?” Hey, you know what they say: “It’s good to be the king” – especially the world’s reigning search engine monarch. Ultimately, the “link tax” all but upended the independent search industry in Germany.

TLDR; News Aggregators Should Be Concerned, But Not Terrified

So, what’s the bottom line? Though the recent hyperlinking hysteria may be exaggerated, the proposal does include some very real threats for news aggregation sites. After all, the EU may make it against the law to re-package existing content, which will undoubtedly – and almost certainly negatively – affect online marketing and news outlets.

Get Answers & Solutions From Your Friendly Neighborhood Online Copyright Lawyer

Kelly Warner is an Internet law firm that handles all manners of online copyright issues. A top-rated, boutique law firm, Kelly Warner has been focused on technology and Internet law from launch. What makes us different? We’re not stuffy attorney types; we’re genuinely tech-savvy and refreshingly straightforward – we’ll tell it to you like it is from the get-go. Oh, and the firm’s founding attorney, Aaron Kelly maintains exceptionally high review ratings on AVVO.com, Martindale-Hubble and Yelp.

Get in touch today. We’d love to start answering some of your questions and finding solutions to your challenges.

Article Sources

No, the EU is not going to make hyperlinks illegal. (2015, November 12). Retrieved January 12, 2016, from http://theconversation.com/no-the-eu-is-not-going-to-make-hyperlinks-illegal-50484

Sterling, G. (2015, November 9). With Copyright Reform, Is Europe About To Declare “War On The Hyperlink”? Retrieved January 12, 2016, from http://marketingland.com/with-copyright-reform-is-europe-about-to-declare-war-on-the-hyperlink-151107

Brownlee, L. (2015, November 9). What Happens If Hyperlinks Get Copyright Protection In Europe? Retrieved January 12, 2016, from http://www.forbes.com/sites/lisabrownlee/2015/11/09/hyperlinks-may-be-under-attack-save-the-link/

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Can You Successfully Sue Over A Meme? http://www.aaronkellylaw.com/sue-over-a-meme/ Mon, 11 Jan 2016 10:00:51 +0000 http://www.aaronkellylaw.com/?p=10526 Read More]]> sue over a meme
Is it possible to sue over a meme and win? Yep.

Opining about online harassment is the new black. Media outlets – from the respectable to the tawdry – have rhapsodized about cyberbullying’s effect on society, and part of the conversation has focused on a 21st-century phenomenon – “the graphic meme.”

Some folks say memes are a matter of free speech; other people believe they’re noxious forms of cyberbullying. The war rages on – in perpetuity. But for those of you keeping score, Team Regulation recently won a courtroom battle.

Meme Leads To Lawsuit

These days, so-called “memes” are as ubiquitous as Starbucks cafes. Some are funny, some are try-hard, and some are just cruel. The unfortunate part of the “mean meme formula” is that innocent people are turned into “meme-lebrities” by no fault – or force – of their own. It can cause a lot of heartache and damaging consequences. Think about it: would you hire “Sc*mbag Steve”? (OK, OK – YOU would, but other people aren’t as generous.)

Boy and Family Sue Over A Meme

Recently, the parents of a boy with Down syndrome decided to fight back against the Meme Army. Apparently, a picture of their son made its way online, someone got a hold of it, and long story short, within days, the young man’s picture became the backbone of a viral meme. The mocking was ruthless and unrelenting. According to the boy’s parents, the constant barrage of jeering caused their son harm – so, they decided to be legal trailblazers and sued over the offense.

Court Sides With Plaintiff In Meme Lawsuit

When word of the lawsuit first hit, a lot of people assumed a judge would toss the case. But much to the surprise of the proverbial peanut gallery, a judge and jury sided with the boy, to the tune of $150,000.

When asked about the claim, the father explained, “We are in favor of the First Amendment.  [But] This is just mean.  This is just people being mean.”

Can You Successfully Sue Over A Meme That Features Your Picture?

Does this ruling mean that anyone who unwittingly becomes the central figure in a meme has grounds for a successful lawsuit? No, not really. Maybe, but not really. Like all lawsuits, this case turned on the details – details that happened to work for the plaintiff. That said, the ruling does clear a path for more “meme lawsuits.” People looking to pursue a similar claim should consult with an Internet law attorney.
Does this ruling mean that anyone can sue over a meme? No, not really. Maybe, but not really.

Torts that can, possibly, be used in a “meme lawsuit”:

  1. Defamation
  2. Publication of Private Facts / Information
  3. False Light
  4. Invasion of Privacy
  5. Copyright Infringement
  6. Unauthorized Use of Property

Talk About Your Meme Situation With An Internet Law Attorney

Please understand: there is no guarantee that any of the above torts will work. Viability is based on jurisdiction and case specifics. The best thing to do is talk to a lawyer. He or she will be able to determine the most effective course of action for your specific situation and if you have grounds to sue over a meme.

Interested in speaking to an Internet lawyer about a potential “meme lawsuit”? Contact Internet law attorney, Aaron Kelly.

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Online News Aggregation: Is It On Its Way Out? http://www.aaronkellylaw.com/online-news-aggregation-is-it-on-its-way-out/ Thu, 03 Dec 2015 00:34:36 +0000 http://www.aaronkellylaw.com/?p=10503 Read More]]> news aggregation site law
Will news aggregation sites have to close up shop, soon? Some people think so, including Matt Drudge.

Will it soon be illegal to aggregate news links? Some people think so – including Matt Drudge – founder of the right-wing news site, DrudgeReport.com.

Are We Headed For a “Content Net Neutrality” Battle?

For years, citizens, politicians and businesses have deliberated the pros and cons of so-called “net neutrality.” The main debate: Is it fair for ISPs to charge money for priority bandwidth status – in essence creating an HOV fast lane for mega-corps who can cough up big bucks?

Well, some pundits are speculating that the spirit of that debate may also trickle down to news aggregator websites.

SCOTUS Rep Warns Drudge?

Political website pioneer, Matt Drudge, recently spoke publically on the issue of “content neutrality” (our term, not his). In his estimation, content aggregation is under attack by large corporations eager to monopolize the media. According to the Web-eprenuer, the powers-that-be are on the verge of manipulating copyright laws to take control of hearts, minds and bandwidth.

In a recent interview, Drudge said that a Supreme Court justice told him, “It’s over for [DrudgeReport.com].” The judicial canary allegedly explained:

“They’ve got the votes now to enforce copyright law; you’re out of there. They’re going to make it so you can’t even use headlines.”

If true, the threatened online copyright laws would effectively demolish Drudge’s website – and whole lot of other small, online media and opinion outlets.

Valid Conspiracy Concern or Fear Mongering?

According to Drudge, politicians are currently debating the “cost” of links. If lawmakers decide that content creators can dictate where their links live, news aggregators, like Google, will likely pay for the privilege. And while The Big G can afford to shell out cash for hyperlinks (and probably a small continent), most “indie” sites probably can’t.

Drudge hypothesized that the demise of independent news sites will transform the Internet into a corporate cog devoid of citizens’ voices.

Now, to play devil’s advocate, Drudge does have a history for hyperbolic speech – and an arguable tendency to present a molehill as the fourth coming of Mount Vesuvius. But in this instance, perhaps he has a point? After all, imagine an Internet where large corporations simply pay for priority? An Internet where you could easily be sued for linking? What would happen to “fair use” rights?

Over the next month, elected officials will be holding meetings with industry players to discuss the future of online copyright law. Expect the Internet to explode with opinions.

Again, this is all premature conjecture, but it’s worth a thought.

Article Sources

Takala, R. (2015, October 14). Lawmakers weigh online rules that could affect Drudge, other sites. Retrieved December 2, 2015, from http://www.washingtonexaminer.com/lawmakers-weigh-online-rules-that-could-affect-drudge-other-sites/article/2574156

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Can Someone Else use my name in their Google Adwords Campaign? http://www.aaronkellylaw.com/can-another-company-or-person-use-my-name-in-their-google-adwords-campaign/ Thu, 05 Nov 2015 15:12:06 +0000 http://www.aaronkellylaw.com/?p=10421 Read More]]> Google Adwords Law

Google Adwords Law
Google Adwords Legalities: Can someone else use your name in their campaign?

“Can someone use my name – or my company’s name – in their Adwords campaign?” As a firm that focuses on Internet law issues, we hear that question – a lot. And some folks are surprised to learn that, on occasion, the answer is: “Maybe.”

After all, as they say: Alls A whole lot is fair in love and digital promotion. That established, parameters do apply. Below, we’ll use a recent online trademark lawsuit as a window to explore legalities involved in domain disputes and Google Adwords.

Dissolved Partnership Leads To Adwords War

A recent Florida lawsuit is a good case study to highlight Adwords legalities.

In the late 1990s, Dr. Paul Tartell and Dr. Lee Mandel opened the South Florida Sinus and Allergy Center (SFSAC). But by 2011, the two physicians parted ways.

One Party Bought Google Adwords That Incorporated The Other Party’s Name

According to reports, after the two doctors dissolved their partnership, Dr. Mandel:

  • Incorporated under the name of the old partnership practice, SFSAC – allegedly without telling Dr. Tartell.
  • Registered a handful of domains, which incorporated Tartell’s name; those domains forwarded to SFSCA.com
  • Bought Google Adwords that included his former partner’s name.

Adwords Legalities: Broken Partnership Dispute Leads To Cybersquatting and Online Trademark Lawsuit

Dr. Tartell felt that Dr. Mandel crossed the Legal Rubicon by purchasing Adwords and domains that included names and phrases associated with the defunct partnership.

So, Tartell filed an “Adwords lawsuit.” In it, the good doctor argued:

  • Cybersquatting,
  • False designation of origin,
  • Unfair competition,
  • False advertising and
  • Unauthorized publication of names and likeness.

To Win This Type of Online Advertising Case, Plaintiffs Must Prove…

To win his domain dispute / Adwords lawsuit, Dr. Tartell had to prove that his name had, in lawyer speak, “acquired a recognizable secondary meaning.” Essentially: Tartell had to prove that he was a “famous” ears-nose-and-throat guy in south Florida. (Hey, if “NYC’s acne-fighting Dr. Zizmor can make the New York Top 100 list (#onlyinnyc), Tartell can make celebrity waves in the Sunshine State!)

In deciding whether or not a claimant satisfies the secondary meaning test, judges consider:

  • The length, nature and public recognition of use;
  • Past promotional efforts involving the phrase or name under consideration;
  • “Branding veracity” – how much time and money was spent promoting a public connection between a given name and a given business.

In the initial trial, to support his “secondary meaning” claim, Tartell offered evidence of lectures, industry presentations, articles and patient testimonials.

Trial Court Sides with Plaintiff in Online Trademark Case

The district court ruled for Tartell, deducing that his name had acquired secondary meaning in South Florida. Tartell walked away with a cool $6K in damages.

But Mandel (SFSAC) appealed, and the 11th Circuit Court reversed the lower court’s decision. Advantage, Mandel.

Ultimately, the bench reasoned that Dr. Tartell’s probative evidence didn’t “promote a conscious connection between [his] name and [his] services.”

What Is The Important Adwords Law Takeaway?

What is the most important thing to remember about this Adwords trademark case?

In certain cases, it’s legal to use another company’s or person’s name in promotional efforts. That said, if a party is “famous” in a given niche, it could be deemed a viable “secondary meaning” argument. In those instances, it may not be allowable to buy Adwords using said party’s name, nor buy a domain that includes the party’s name. For example, “Walmart” can’t buy up a bunch of domains with the word “Target.”

Your Best Bet? Chat With An Attorney.

If you’re battling an adversary over Adwords or domains, it’s best to consult an attorney well versed in online intellectual property law. He or she will be able to assess the specifics of your situation and guide you to the best solution.

Daniel Warner: Internet Business Lawyer

Daniel Warner, a partner at Kelly Warner Law, is a very smart guy. Evidenced by a photographic memory, Warner is a lawyer who can quickly identify relevant issues, and then swiftly maneuver his clients into the best position possible.

A straight shooter, Warner is known for letting potential clients know, upfront, whether or not they have a solid case.

If you value your time – and money – go with online business lawyer Dan Warner. Because he won’t waste either.

Get in touch today.

Article Sources

H.P. Nguyen, T. (2015, August 27). What Does It Take to Trademark Your Name? Retrieved November 4, 2015, from http://www.natlawreview.com/article/what-does-it-take-to-trademark-your-name#sthash.RXMHkGfM.dpuf

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Internet Defamation Case Example: The CobbleBot Issue http://www.aaronkellylaw.com/internet-defamation-case-example-cobblebot/ Thu, 21 May 2015 17:53:35 +0000 http://www.aaronkellylaw.com/?p=10397 internet defamation case example
Internet Defamation Case Study: The CobbleBot Question

Another tech libel fight is percolating. This time, prominent 3-D printer manufacturer, CobbleBot LLC. (“CobbleBot”), is arousing discord amongst backers and tech trendsetters. The situation is instructive in that it illustrates what is — and isn’t — a viable internet defamation case.

3-D Printing Virtuosos

Based in Houston, TX, CobbleBot is one of the main players on the 3-D printing scene. After a wildly successful Kickstarter campaign, which raised upwards of US$300,000 from over 1,000 sponsors, CobbleBot began producing large, exceptionally precise 3-D printers for only $299 a pop. The company promised to ship orders by March 2015, at the latest.

Shipping Issues Lead to Online Gripes

Though CobbleBot has produced and shipped many of the promised printers, the company has also dropped the ball on orders. And you know what happens when customers aren’t satisfied – especially when they’ve prepaid: RANT ON THE INTERNET!

Support Letter Legal Warning

One early CobbleBot supporter was particularly vocal about his discontent, and after inquiring about his missing printer a carefully worded letter landed in his mailbox. An excerpt:

Got a letter saying that the legal department puts holds on orders related to anyone that they MAY be defamatory. Are clear to say that “Keep in mind that the support department does not have access to the legal department’s records, so we don’t know anything for certain. We are just attempting to explain the type of hold that we saw placed on your account and what that typed of hold means.”

Under Texas defamation law, certain things are considered defamatory per se including “falsehoods that injure one in his office, business, profession, or occupation (Main v. Royall, 348 S.W.3d 318,390)

Bluntly speaking, CobbleBot’s letter ranks on the disingenuous spectrum. After all, defamation and trade libel attorneys understand that negative customer opinions don’t meet the slander or libel bar under Untied States law.

What CobbleBot Would Need To Prove To Win A Defamation Case Against Online Detractors

Judging from reports, some customers’ dissatisfaction with CobbleBot is justified. After all, they ordered printers that never shipped. And thanks to the First Amendment and U.S. case law, mere negativity does not amount to libel; neither does the awful truth.

To emerge victorious in an internet defamation case, plaintiffs must prove that defendants:

  • Made a false statement(s) of fact about the plaintiff;
  • Referred to the plaintiff in the statement(s);
  • Acted with reckless disregard for the truth, negligence or actual malice; and
  • Caused material harm to the plaintiff via the contested statement(s).

Speak With An Internet Defamation Case Attorney

Kelly / Warner maintains an active – and highly successful – internet defamation legal practice. A pioneer in the field, our attorneys have won hundreds of cases. Often, we’re able to clear up a situation within a matter of weeks. To learn more about our online libel practice, click here. To speak with an experienced internet defamation lawsuit, get in touch.

The longer you wait, the longer the situation will fester. Take action.

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Online Copyright Showdown: The Google MPAA Feud http://www.aaronkellylaw.com/online-copyright-showdown-the-google-mpaa-feud/ Tue, 20 Jan 2015 19:09:58 +0000 http://www.aaronkellylaw.com/?p=10325 Google MPAA feud explained
The Google v. MPAA feud is like Hatfields v. McCoys, 21st Century.

The fit-filled Google MPAA feud mirrors that of the Hatfields and McCoys. And thanks to the now infamous “Sony hack,” stakes have been raised in the Online Copyright War.

Concerned about information revealed in the leaked Sony emails, Google decided to sue the already beleaguered state of Mississippi. Huh? What does Mississippi have to do with the MPAA-Google beef? Keep reading.

Round 734 of the Google MPAA Feud: The “Get Tough On Online Copyright” Email

A pesky little email, from of the inbox of MPAA general counsel Steven Fabrizio, sparked Google’s lawsuit against Mississippi. In the email, Fabrizio mentions the studio’s “get tough” plan to strong arm Google on the issue of online piracy – or as the MPAA calls the search company, “Goliath.”

An excerpt, from the email, for your gawking pleasure:

“Creating an environment to potentially increase the impact of the AG effort requires additional resources devoted to investigation and analysis of Goliath. This investigation and analysis would give the AGs a greater understanding of the problems created by Goliath (ammunition/evidence against Goliath), and the technical solutions for those problems.”

Google MPAA Feud: The Kernel of Animosity

What is the kernel of animosity between Google and the MPAA?

The discord boils down to this: the movie studios and their lobbyists want tech companies to do everything in their power to curtail online copyright infringement (i.e., piracy).

Google executives, on the other hand, don’t think it’s the company’s responsibility to thwart piracy. Plus, there’s a sentiment in the tech community that the MPAA’s requests amount to censorship. In fact, a Google attorney mentioned the big “C”:

“One disappointing part of this story is what this all means for the MPAA itself, an organization founded in part ‘to promote and defend the First Amendment and artists’ right to free expression. Why, then, is it trying to secretly censor the Internet?”

MPAA Spin Masters

Skilled in the ways of Hollywood public relations, an MPAA spokesperson dodged Google’s “censorship” slight with a tried-and-tested, deflect-then-blame maneuver, countering:

“Google’s effort to position itself as a defender of free speech is shameful. Freedom of speech should never be used as a shield for unlawful activities and the Internet is not a licence to steal. We will seek the assistance of any and all government agencies, whether federal, state or local, to protect the rights of all involved in creative activities.”

The Google MPAA feud won’t end until studio staffers cipher a new revenue model. Until then, the online piracy tug-of-war will continue.

Contact an Online Copyright Lawyer

Do you have an online copyright legal issue? Are you ready to speak with an Internet lawyer? If yes, get in touch with Kelly / Warner Law. A pioneer in the field of Internet law, we’ve successfully managed hundreds of copyright challenges for businesses and entrepreneurs. To learn more about our firm, start here.

Sure, your online copyright issues may not be as dramatic as the Google MPAA feud, but wouldn’t it be nice to get it resolved? Let’s start fixing today.

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