Tag Archives: Internet Law

Can You Successfully Sue Over A Meme?

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.

Online Copyright Showdown: The Google MPAA Feud

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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Sextortion 101: A Legal Primer

Sextortion: revenge porn's equally odious cousin.
Sextortion: revenge porn’s equally odious cousin.

First, revenge porn hit the scene. Now, sextortion is also on the stroll. “Sextortion,” you ask? A hybrid crime of extortion and hacking, sextortionists use malware to gain control of web cams, and then take nude pictures and videos of victim’s without their knowledge or consent. After that, the perpetrator usually contacts the victim and demands money in exchange for not publishing the material. Unlike revenge porn, sextortion is illegal everywhere. If you get caught, you’re going to need superb lawyering to keep you out of jail.

Teenage Sextortionist Could Face Over A Year In Jail

Nineteen year old Jared James Abrahams of California recently found out the hard way that sextortion will land you in a heap of trouble with the law. After successfully using malware to commander the web cams of several women, including Miss Teen USA Cassidy Wolf, Abrahams amassed a library of unsolicited nudie media. He then contacted his victims and demanded “payment or else.” One of Abraham’s targets said he threatened to turn her “dream of being a model…into a port star.”

He Confessed Instead Of Going Through A Trial

But apparently Abrahams didn’t cover his tracks well enough and authorities smoked him out of his hole. Now he is facing time behind bars. And since Abrahams’ sextortion racket reached its tentacles into Ireland, Canada, Russia and Moldova, international suits may also arise – especially since EU online privacy laws are a lot more strict than U.S. online privacy laws.

Abrahams copped to the crime instead of enduring a trial. He “admitted to infecting people’s computers with malware” – a violation of the Computer Fraud and Abuse Act. He also conceded to “watching women change their clothes and using photographs against his victims.”

On March 19, 2014, Abrahams’ fate awaits him at his sentencing hearing. He could spend several years in the clink.

Sextortion Isn’t New, But Some Of The Methods Are

Analogue Sextortion

James Abrahams is not an anomaly. Sextortion is a prevalent pastime that has touched nearly every corner of the globe and every level of society. Though, it hasn’t always involved a digital component. For example:

  1. Several years ago, in Tanzania, authorities convicted a high school teacher who demanded sexual favors for grades.
  2. In 2010, a Canadian judge handed a government adjudicator an 18-month sentence for extorting sex from a refugee looking for asylum.
  3. Chinese Communist Party official Lei Zhengfu lost his job after a video called “Lei, the secretary who accepts sex bribes”went live on Sina Weibo, that country’s most popular social media site. And yes, as the title suggests, he was convicted for doling out government favors for sexual labors.

Digital Sextortion

In recent years, we’ve seen an increase in the number of hacking- and social media-related sextortion scandals. To illustrate:

  1. Celebrity phone hacker, Christopher Chaney, got 10 years in federal prison for hacking the phones of Mila Kunis, Christina Aguilera and Scarlett Johansson.
  2. A teenager in Wisconsin got a 15-year prison sentence for posing as a girl on Facebook, then using the account to convince boys to send him nude pics, which he then used to extort homosexual sex.

Judges Ban Together To Educate Law Enforcement and Lawmakers On Sextortion

Sextortion is so prevalent that the International Association of Women Judges (IAWJ), in conjunction with the Association of Women Judges in Bosnia and Herzegovina, the Philippine Women Judges Association, and the Tanzania Women Judges Association launched a three-year program called, “Stopping the Abuse of Power through Sexual Exploitation: Naming, Shaming, and Ending Sextortion.” The Netherlandian government was kind enough to foot the bill for the cross-border legal awareness project.

New Tech Tax In Massachusetts

internet-taxesListen up tech industry people in Massachusetts! Your state government recently passed a new tax that directly affects your business. In order to fund statewide transportation upgrades, the standard 6.25% sales tax will now be required on most computer software services, including website development.

A cabal of tech industry and taxpayer associations has banded together to fight the tax, but lawmakers seem intent on sticking to their decision.

Why The New Massachusetts Technology Tax?

Why is Massachusetts adding a new tax? State representatives say it’s all about mending the ailing transportation system. And since transportation upgrades usually involve technological advancements, legislators buried the tax in a recent transportation bill – a statute most tech folks didn’t notice.

Lawmakers estimate the new tax will bring in $160 million in revenue for the state. Opponents to the tax think it will bring in $500 million – way more than the state needs for their stated goals.

Why Is The Massachusetts Technology Tax a Potential Nightmare For The Industry?

Opponents to the new levy have a simple yet powerful argument: a new tax threatens the state’s financial growth since technology is a booming sector of the economy. Moreover, anti-tax spokespeople point out that since the bill is so poorly written, more businesses will be subject to the tax than politicians think.

Is The New Technology Tax Effective Immediately?

The new tax is not en force yet, and a group of concerned and invested entities has joined forces to oppose the tax. The Massachusetts Taxpayers Foundation, Massachusetts High Technology Council and other groups are working to have the tax added as a referendum on the 2014 ballot. Serious about their efforts, the group has hired a high-end public relations team to further their cause.

For their part, politicians say they will consider narrowing the scope of the tax if revenues exceed their $160 million estimates.

Are you a tech company in need of a lawyer? Get in touch with Kelly Warner Law. We focus on all things Internet law related.

Google Antitrust On The Menu Again?

Google Logo to represent ongoing Google antitrust battle
Is the Google antitrust question on the FTC’s radar  again?

Just when Google thought their antitrust worries had washed away with a wave of other campaign-year  flotsam, the Federal Trade Commission has fired up the bat signal and are summoning the proverbial “A Team.” Their focus, once again, seems to be on the Khal of Search, Google.

A new marketing czar is now at the helm of the FTC. Moreover, judging from early reports, it seems the commission is focusing on the logistics of Google’s ad exchange program, instead of organic SERP results, like last time. Could these two variables result in a bad outcome for Google this go round?

The Google Antitrust Legal War

Google is no stranger to the antitrust litigation ring. The first unfair competition arrow was shot from the SS FTC in 2007. Back then, the commission concerned themselves with the tech company’s acquisition of a large online advertising firm, DoubleClick. Agents reviewed the structure and practices of each entity to determine if a marriage of the two companies would end up creating an unfair mega-corp. In the end, officials decided Google could buy DoubleClick because the purchase was “unlikely to substantially lessen competition.” At that point, the antitrust investigations were suspended.

Things were quiet for several years. Then in 2012, the FTC started breathing down Google’s back again. This time, the commission examined whether or not Google was unfairly promoting their holdings in search results. The case was closely watched, and in the end, a deal was reached. Google essentially walked away with a slap on the wrist; but public reaction to the 2012 Google antitrust decision was mixed.

A New Google Antitrust Investigation for 2013?

Just when Google and legal watchers thought the Google antitrust wars were over, word hit the wires that the nation’s consumer watchdog was sniffing around the search giant’s territory once again. According to reports, representatives from the FTC have supposedly been talking to online marketing industry people about Google’s advertising program. Specifically, parties questioned said they were asked about:

  1. How Google provided and served ads on their websites;
  2. Google’s advertising bidding process;
  3. Whether or not Google was offering below market prices to advertisers who agreed not to use any other online ad network.

The rumblings have begun, but at the time of this writing, the Federal Trade Commission has yet to file the appropriate paperwork to move forward with yet another Google antitrust investigation.

What do you think? Should Google be censured for antitrust activity? Or, did the tech company just do a really good job at building a stronger, faster business model? Let us know on Twitter.

Arizona Business Law: Serving Notice

Arizona Business Law Rulings
Arizona Business Law Rulings: In order to enforce judgment on an Arizona resident or business, all of the paperwork from the originating jurisdiction must be perfect.

A new Arizona business law judgment should be viewed as a significant new chapter in the annals of interstate litigation.

What is the new Arizona business law? If you live in another state and want to enforce a judgment on someone in Arizona, make sure every administrative “T” is crossed and “I” is dotted in your jurisdiction. Why? Because recently an Arizona appeals bench ruled that in order to impose a ruling on an individual or business in the Grand Canyon State, all procedures in the originating state must be followed exactly.

Texas Plaintiff Wants To Enforce Summary Judgment In Arizona

Earlier in the year, Hillcrest Bank – a Texas-based business – brought a claim against Mr. Richard J. Sodja of Phoenix, AZ. Presumably, the latter had engaged in business with the former. The case went down in Texas and Hillcrest won, but the defendant never showed.

When someone in Texas wants to sue an entity in another state, it must go through the Texas Secretary of State who forwards a petition and citation to the appropriate party. As such, Hillcrest took their case to the appropriate party in order to inform Sodja in Arizona.

How The Texas Bank Served Notice To The Arizona Plaintiff

In the case of Hillcrest v. Sodja, the Texas Secretary of State sent the service notice to an Arizona address listed on Hillcrest’s petition. It was the address of Sodja’s out-of-home office. After the prescribed amount of time passed, and the Texas party hadn’t received an acknowledgement or response from Sodja, a judge granted a summary default ruling in favor of the bank. In order to get their bucks, after receiving the favorable judgment, Hillcrest filed a notice with the Maricopa Superior Court to enforce the ruling. At that time, Sodja moved to void the judgment, but the trial judge sided with the bank. After that, Sodja appealed.

Arizona Appeals Court Says “Sorry, But The Paperwork Was Incorrect, So Jurisdiction Is In Question.”

Unlike the trial court, however, the Arizona appeals court agreed with the defendant. Judge Margaret Downie penned the court’s opinion. In her decision she acknowledged, “The Full Faith and Credit Clause of the United States Constitution requires Arizona Courts to respect and enforce judgments rendered in court of their sister states.” But not required to if there is a question of jurisdiction in the original case.

The question of jurisdiction was an important one in Sodja’s case.

According to Texas law, “a statement of the name and address of the non-resident’s home or home office” must be included in a proper service notice. The problem for Hillcrest Bank is that the petition addressed to Sodja had to be sent to his home or home-office in order to be valid.

It wasn’t. It was sent to his out-of-home office on Camelback Road. Due to the incorrect address, technically speaking, Texas failed to assert proper jurisdiction over Sodja by denying proper due process. As such, Downie and the court reasoned that the motion to enforce the judgment against Sodja was invalid.

Speak With An Arizona Business Lawyer Today

The law is just as technical as it is analytical. That is why it is important to have an experienced lawyer handle matters, as not doing so could cost you more in the long run. If you have a business law matter dealing with Arizona courts, and are in need of an Arizona attorney, contact Kelly Warner Law.

Can You Serve Notice Online?

serve notice online
Legally speaking, is it possible to serve notice online?

You’re suing someone for defamation, but you only know your detractor’s screen-name. So, the burning question is: Can you serve notice online? In a word, yes. That said, before a court will issue permission to serve notice online, you’ll have to prove you attempted various other methods before resorting to the use of social media or other digital service options.

Precedence For Serving Notice Online

Earlier this year, a US court agreed to let the Federal Trade Commission serve a pair of potential scam artists in India. Specifically, the two gentlemen were served notice via email and Facebook.

The road to this outcome, however, was a long one.

Before attorneys for the FTC could secure the online service approval, they exhausted every other avenue. It took months.

In addition to searching high and low for ways to serve the suspects in person or via traditional postal services, plaintiffs in the case had to provide significant evidence that the proposed email and Facebook accounts were active and valid. After all, serving notice to the wrong digital account could be legally disastrous.

Data the plaintiffs provided to the courts in order to get the OK to serve notice online:

  1. The plaintiffs had the government names of their opponents;
  2. The names the plaintiffs had were the same used in the proposed email address and Facebook accounts;
  3. The uspects’ Facebook profiles made mention of the company being investigated by the FTC;

What If You Only Have The Person’s Screen Name? Can You Still Serve Notice Online?

The jury and judge are still out on whether or not it’s acceptable to serve an anonymous defendant via electronic means – specifically, via email or a social media account. One of the reasons the courts granted the FTC approval is because significant evidence existed that the people being sought were the people behind the proposed accounts for service. If the defendant has keen obfuscatory skills, though, it’s very tough to provide the level of evidence needed to secure an online service notice.

Is It Possible To Uncover The Name Of An Anonymous Defamer?

Before trying to serve notice online, it’s best to attempt to uncover the anonymous defamer via a court order. While convincing courts to grant an order or injunction to reveal the name of an individual posting online can be difficult, it can be done.

If you don’t have experience filing motions, it’s best to contact an online defamation lawyer to handle the process of getting a court order to either (a) unearth the name of an online poster or (b) remove the content from a search engine.

If you’re in need of an attorney to assist with an anonymous online defamation situation, contact Kelly Warner Law.

Biz Opp Alert: The FTC Is Watching

Federal Trade Commission Logo
Federal Trade Commission Logo

The nation’s consumer protection agency is actively enforcing their new Biz Opp rules. On October 31, 2012, the Federal Trade Commission, in conjunction with other federal task forces, the U.S. Postal Inspection Service and Attorneys General in Arizona, Colorado, California and Indiana filed 108 new legal actions against Biz Opp companies that authorities allege are unfairly scamming would-be entrepreneurs.

Operation Lost Opportunity: The FTC’s Latest Crackdown On Biz Opps

With a 3-0-2 vote, the FTC put operation lost opportunity into action. Seventy civilian actions and 38 criminal actions were filed in the District Court for the Southern District of Florida against a slew of companies offering “be your own boss” prospects. Specifically, a group of companies that offer mystery shopping, credit card processing, website operation, and government insurance refund processing opportunities are being charged with violating various consumer protection rules.

Authority Operation Lost Opportunity Involvement
Department of Justice 22 actions filed
Attorneys General IN, CA, AZ, CO Combined 20 actions filed
U.S. Postal Inspection Service 15 administrative actions filed
Working Group of the Financial Fraud Enforcement Task Force Coordination and 51 actions filed

What Are The New Biz Opp Rules, Anyway?

The companies caught up in this imbroglio are primarily being accused of misrepresenting the amount of money potential buyers can make – a clear violation of Article 5 of the FTC Act and the Telemarketing Sales Rule. Several of the defendants also engaged in negative-option billing – a big FTC no-no, especially for Biz Opps. Noncompliance with the new 7-day disclosure statement rule seems to be another issue in this FTC sweep.

Perhaps the most egregious violations of the lot, though, were the double-blind enrollment schemes. Several companies caught up in this sting enrolled customers in two programs at once; when the client canceled their subscription, they’d still be charged the following month. When they inquired as to why they were still being charged, only then did they find out they were enrolled in both programs.

All of the above violations are mentioned in the new Biz Opp rules released by the FTC earlier this year. If you have not yet reviewed the updated statutes, be sure to catch up here.

Temporary Restraining Order Issued To Companies Being Investigated

In brief, a temporary restraining order is a legal action that constrains a party to refrain from a given activity or compels them to engage in an activity. In the context of litigation, temporary restraining orders are essentially stop-gap actions used in the period before an injunction hearing. TROs are decisions made by a single judge and cannot be overturned.

On October 31, 2012 a court issued TRO was executed; it halted activity, froze assets and put the targeted companies in a temporary receivership.

Need A Biz Opp Lawyer?

The FTC gave notice that they plan to pay close attention to Payday lending websites, Internet schemes, and EDU scams in the near future. So, if you’re an affiliate or online marketer being investigated by the FTC and you need of a lawyer, contact Kelly / Warner Law. We’re not just attorneys, but also affiliate marketers. We understand the business, in addition to the nuances of Internet marketing law and compliance.

Mother Pens Cyberbullying Memoir

Cyberbullying is most often associated with children. But many adults also suffer online harassment. Lesli Catsouras, 46, is one such adult, and she’s sharing her harrowing story in a new memoir entitled, “Forever Exposed.” A deeply personal tale, Catsouras’ book is about the cyberbullying she and her family experienced after her 18 year old daughter was killed in a car crash.

It all started on Halloween afternoon of 2006. After having lunch with her parents, Nikki grabbed the keys to her father’s porche, the one she was not supposed to drive, and escaped out the garage. Panicked, Nikki’s mother immediately called her father, who tried to warn the police, but it was too late.

Nikki lost her life after crashing into an unmanned toll booth. As you can imagine, it was an incredibly difficult time for the Catsouras family. All they wanted to do is grieve in peace and try to piece their life back together. But the opposite ended up happening.

Due to a leak by the California Highway Patrol, the pictures of Nikki’s death leaked onto the Internet. Within days, the Catsouras family was inundated with taunting emails. Many even included pictures of Nikki’s crash. When word got out that there were traces of cocaine in Nikki’s system at the time of the crash, things got even worse. She was labeled a spoiled brat who deserved what she got, and the family had to endure the nightmare – both online and off.

The cyberbullying was relentless. The disparaging messages came in day after day, week after week, month after month. And yes, those months turned into years. Can you imagine years of persistent cyberbullying? It got so bad that the youngest Catsouras, who is now 13, is still not allowed on the Internet.

The Catsouras’ bid to rid the Web of the gruesome photos has been long and challenging. According to Lesli, her family has spent several millions trying to remove the photos from the Internet…and years later, some images still linger in the ether.

If you or someone close to you is being cyberbullied, there are legal avenues available to fight back. You can file a defamation lawsuit or get a temporary restraining order, for example. Also, tons of online reputation services help those who are in need of “cleaning up” any unwanted information that has managed to find its way onto the Internet.

Cyberbullying is a terrible thing to suffer through. But don’t give up. There is help out there, the first step to rectifying the situation is picking up the phone or sending that initial email to someone who is experienced with the legalities of cyberbullying.

New Internet Law: Facebook Freedom of Speech Schools

An aggressive new Internet law was introduced in North Carolina, making it a criminal offense for a student to release statements online with the intention of intimidating or tormenting school faculty.

In Minnesota, a U.S. District Court maintained that compelling students to hand over access to their social media accounts is a violation of their rights under the First and Fourth Amendments. The case involves a 12-yer-old girl who posted one comment about a school employee on Facebook at home, and followed it up with another. School officials promptly questioned the student, which resulted in disciplinary actions. She also had to provide access to her email accounts, which they searched.

Based on Tinker v. Des Moines and other precedents, the court maintained that school authorities could not punish statements made away from school, which are guaranteed by the First Amendment, unless they are genuine threats or intended to affect the school environment. They must also be so inflammatory that they pose a significant safety risk, or some other significant disruption, at the school.

Attorneys for the school indicated that the protection of out-of-school statements was unclear when the alleged violation took place. However, that was dismissed by the court, which stated that a general rule that schools had no right to regulate inappropriate speech that takes place out of school was well-established long ago.

In addition, Bradley Shear, an attorney and an authority on privacy laws related to social media, states that any public school requiring students to provide their social media user names, or allow access to digital content protected by their password, or who install third-party software, regardless of the motive, are clearly violating the First and Fourth Amendments.

In view of this, our courts may soon face more challenging cases related to off-campus speech. The main hurdle appears to be defining the “true threat” standard for online interactions.

Six Strike Illegal Downloading Warning System

illegal downloading
Six Strike Piracy Alert System Is In Effect In The US

Update Feb 2013: Welp, it’s a go! The six strike illegal downloading system went into effect at the end of February 2013.

Update Nov 2012: Due to issues associated with Hurricane Sandy, implementation of the “six strike” anti-piracy program, which is intended to thwart illegal downloading, is delayed until 2013.

European countries love illegal downloading laws. Most use a three-strike system, meaning users get two piracy warnings before being slapped with sanctions. In Europe, if a person is caught in the act after two warnings, the punishment is usually suspension of Internet service for up to a year.

Since the US justice system is based on the ‘innocent until proven guilty’ premise, laws like the EU’s three-strike method are considered unconstitutional by many. The argument being that people are stripped of rights without first being found guilty of an actual crime.

But the times, they are a’changing.

Several American ISPs announced that they will employ measures that help copyright holders hang on to their intellectual property. Similar to their European cousins, the Americans are going with a ‘six strike’ policy. This means American Internet users will be given five progressively severe warnings before suffering more serious consequences. These measures are strictly optional for Internet providers, but it is estimated that around seventy-five percent of American citizens will be affected by the new rules.

How Will The Six Strike Illegal Downloading Warning System Work?

Most people know the consequences for pirating content on the Internet. The warning at the beginning of movies makes clear the punishment: Up to Ten Years in “The Clink” and Hundreds of Thousands in Fines. Unfortunately for copyright holders, the strike system has done little to stymie the flow of piracy in Europe.

It isn’t yet known what will happen to a person after their fifth ‘strike’ for downloading pirated content. In fact, there isn’t even a standardized approach for the five warnings before the dooms-day sixth strike.

The Center for Copyright Information (CCI), an organization created by the movie and recording industries, is working in conjunction with the nation’s ISPs. They haven’t, however, been able to provide many details on the potential consequences.

The Executive Director of the CCI said the five warnings leading up to the sixth strike would be educational tools. Meaning someone surfing the web may have to read a warning about possible consequences or watch a video related to online piracy, before continuing Internet use. It’s not yet known what punishments a sixth strike would trigger, but many ISPs are hesitant to cut off a person’s service — let’s face it, who wants to lose customers?

Is Illegal Downloading Really That Big Of A Problem?

The new measures will do little to thwart online piracy. Heck, it’s barely made a difference in France and other EU nations. Regardless, the important question to keep asking should be: is piracy really that big of a problem? Sure, the entertainment industry wants their potential lost revenue, but is it really potential lost revenue or just a 21st century way of entertainment consumption – screen first and buy what you like? And if so, is the latter a successful business model? If you believe this piracy math, then your answer is probably “yes, piracy is good for the entertainment economy.”

Nevertheless, according to the law, illegal downloading is against the law. There ain’t no getting around that solid fact. So, who knows, maybe this new system won’t do much to stop the hard-core pirates, but it could dissuade a curious teen from getting into the habit in the first place. Only time and test lawsuits will tell.

Need a lawyer to consult on a piracy related legal matter? Get in touch with Kelly / Warner Law. We’re and Internet law firm that focuses on all legal things associated with doing businesses and living on the Web. Our rates are extremely reasonable and our success rate impressive. Get in touch.

Updates To The Electronic Communications Privacy Act?

Internet law news alert! The House and Senate are finally getting around to updating the woefully outdated Electronic Communications Privacy Act. If Sen. Patrick Leahy’s new bill passes, it will be that much more difficult for law enforcement entities to get their hands on personal email correspondences.

Give Me The Quick Low Down On The Electronic Communications Privacy Act

Enacted in 1986, the Electronic Communications Privacy Act was passed into law to, well, do exactly what its name suggests – protect the privacy of electronic communications. But if you can think back to 1986, you’ll remember that email wasn’t exactly commonplace. In fact, back then, most politicians considered e-mail to be transitory and therefore not all that private. As such, the act classifies electronic communications as “business records” and the ECPA only requires officials to obtain an easily acquirable administrative subpoena to gain access to emails. Moreover, per the statute, emails older than 180 days are considered transient, and therefore semi-public.

What Will Change If The New Bill Is Passed?

If the new bill is passed, law enforcement agents will have a tougher time getting subpoenas to read emails. Instead of just having to acquire an administrative subpoena, which only requires proving “reasonable grounds,” the stricter standard of “probable case” will need to be established before a subpoena is granted to access the emails and electronic communications in question.

The new statute would also eliminate the 180-day stipulation.

The bill being introduced in the Senate will only affect email and the content of social media messaging and specific types of cloud-communications. It will not affect how law enforcement officials obtain IP address, email addresses and names. Why? Because prosecutors need IP addresses, email address and other identifying information when building a case. In other words, in order to meet the standards necessary to obtain a probable cause subpoena, investigators need to be able to use the relevant addresses and names to demonstrate that they are pursuing the correct person.

With the election in full-swing, it’s unlikely we’ll see any movement on this proposal until, at the earliest, March of 2013.

Are you a business person who needs to keep abreast of the latest Internet law news? If yes, be sure to sign up for the Kelly / Warner Internet law newsletter. We’ll send you the important information when it matters, without clogging up your inbox.

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