Dozier Internet Law, PC

Dozier Internet Law: Beware Online "Lawyer Advice"

Dozier Internet Law — Sat, 05 Jul 2008 16:25:28 -0700

I recently saw a comment from a lawyer at a public interest group giving advice and guidance on a hotly disputed online legal issue to the citizens of the web. The problem, of course, is that unlike a law firm like Dozier Internet Law these groups (Public Citizen, Electronic Frontier Foundation, ACLU and many legal professors) owe no one at all any duty of care. There is no attorney/client relationship, and their advice is more often their wishful thinking of how they want the law to be, and not guidance an online business would want to rely upon. Let's consider this in detail.

These commentators will state an opinion which is often seriously jaded by their own personal prejudices or interests, but they don't disclose that fact. They will try to influence public opinion and other lawyers by claiming certain conduct is "legal". For instance, an attorney at Public Citizen claimed that calling a business a "scam" was not defamation. The lawyer found one case in the US that found the use, in that particular instance, was not defamatory, but failed to disclose to his tens of thousands of readers that most courts disagree and many have even concluded it is the most egregrious form of defamation. No surprise this comment came from a free speech lawyer reliant upon contributions from the citizens of the web to keep his job. But the reality is that things are rarely "open and shut". This type of "lawyer advice" is really an argument being put forth as to why the law should be as that lawyer would prefer. It is inherently biased-but the reader would have no idea of this, and will often rely upon the lawyer's advice, sometimes with devastating results.

Think about it...the lawyer has no attorney/client relationship with the reader, owes no duty of care, is not legally obligated to be forthright, consider both sides of an issue, or even look out for the best interests of the citizens of the web. So, these types can shoot from the hip, act like something that is very unclear is crystal clear, and be consistently wrong with no legal exposure.

On the other hand, when you hire a lawyer, an attorney/client relationship is formed. The attorney owes you a duty to use reasonable care and has a malpractice claim to deal with if he is wrong. So your attorney will give you both sides of the issue, explain to you the costs associated with "winning" a lawsuit, the likelihood of prevailing on the merits of a claim and the likelihood of you getting sued for the conduct. You can then make an informed decision.

I recently saw a public interest lawyer telling its many readers and followers that it was okay to buy a company's domain name and use it as a "gripe site". That is a grotesque mistatement of the law. In the US, if you use the site in any way for a commercial purpose, like links to one of your sites that is commercial, or with ads on the site, or another direct or even indirect commercial purpose to gain some type of advantageous financial position, you are likely violating the Anti-Cybersquatting Act. And most of the gripe sites on the web today also contain defamatory statements. It will cost you huge sums to defend a lawsuit even if you win in the end. Your exposure is up to $100,000 per domain name plus lawyer fees that could exceed that sum, and even higher exposure for defamation. If you cannot afford to hire a firm and typically pay at least $25,000 to start the defense and $5,000 to $20,000 per month to continue defending the case, you will go into default, and another $12 Million Judgment could be on the way. Once a judgment is entered, you will be unable to obtain credit, bankruptcy laws make it extremely difficult to wipe this judgment out, and you can have your house seized and sold, your wages garnished, your bank accounts cleaned out, your auto seized, and on and on. That assumes you have a winning case and you cannot afford to defend. If you have a loser, it will cost you well over $100,000 to try the case, at the end of which you will have a financial judgment against you that will likely cripple you economically for a long, long time.

At Dozier Internet Law we work both sides of these types of issues. And a quality and complete analysis of both the merits of a claim and the possibilities and probabilities of litigation is essential. Take the advice of the so-called "lawyer experts" online who seem to absolutely know the law before the Courts have decided? Ask yourself first if you feel lucky...very lucky. Lucky enough to risk your financial future and the financial future of your family. Here's a list of things you can look for to tell you whether you are reading a reliable legal source of information:

1) The lawyer works for a public interest group (Public Citizen, Electronic Frontier Foundation, ACLU etc.): Such advice is usually biased and represents what the author would like for the law to be.

2) The lawyer is outside his field of expertise: Divorce and Personal Injury lawyers don't give good intellectual property or internet law advice, and are just trying to get traffic to their blogs to improve the blogs' positions in the search engines.

3) The lawyer is a Professor: These types often tried to practice law, but found that their colleagues and the judges didn't agree with them, so they decided to go teach law to the gullible law students. Most college and law professors have extremely liberal perspectives.

4) Lawyer blogs: Notice the disclaimer on the law firm sites. It is there for a reason. You should not rely upon the guidance you find online, whether or not it looks like the lawyer knows what he is talking about. Every situation is different. Give him a call.

5) IAMAL: "I am not a lawyer". Don't even read it.

Dozier Internet Law was asked to get involved in three legal issues in the past week or so because lawyers were practicing outside their area of expertise and their advice and work has caused some rather signficant, six figure problems (and potential indictment). So, even with an attorney/client relationship and a duty to use reasonable care, and the risk of a malpractice claim, good lawyers get it wrong too. Does this tell you how complex and difficult this area of law is? And how a lawyer with no obligation owed to clients like these attorney bloggers, professors and free speech lawyers can espouse all kinds of doctrine as fact?

Find a good lawyer who has a focus on the law of the web or the specific subject matter with which you are dealing. And if you are thinking that it is "better to be lucky than good", I am reminded of the golfer's response to a heckler claiming his shot in the hole was pure luck:

"Funny thing", the golfer retorted, "I come to the course every day and really work hard, try to do things right, get the best guidance from the best teachers, work until my hands are a bloody mess, and I am very thorough in my preparation prior to a tournament round. So it's a funny thing...the harder I work, the luckier I get!!!"

Dozier Internet Law Impersonators Continue

Dozier Internet Law — Thu, 26 Jun 2008 19:24:45 -0700

Dozier Internet Law continues to deal with impersonators. The latest incident comes from a heads up in the legal department at Apple Computer. Seems someone used our "letterhead" to try and pry some trade secrets and source code from them. We actually think we have found the culprit this time because he enclosed a return address envelope to assist Apple's attorneys in shipping the code to Dozier Internet Law!

This time, the Virginia Department of Corrections has opened up an investigation. Seems the perpetrator resides in a Virginia prison. Once again, impersonators are everywhere...and be wary and call us when you have any suspicion about something you have received from us. Now, if we can find out who keeps posting comments on blogs purporting to be from Dozier Internet Law, we'll be making some headway.

This week we are getting calls from people upset that a children's movie they purchased online did not download. Apparently our firm name and contact information was used on the site to establish credibility in order to perpetrate this scam. Welcome to the unseemly world of the web. And that is why we prohibit use of "Dozier Internet Law" without our express permission...and yes, we know that there are legitimate reasons to use our name online. We are trying to create legal bases, however, to go after these scofflaws when they try to rip off consumers or businesses.

We have also found a website that is using our firm name, and it turns out this guy received a demand letter from us for allegedly publishing defamatory statements. This site is more of a money raising mechanism than anything else. It contains all kinds of solicitations for its visitors to contribute to a "not for profit" business the alleged perpetrator purports to own, and he has optimized his site with our law firm name to draw traffic. Reportedly, this guy is doing the same thing targeting Fortune 500-type business. He seems to be a smart guy, though, and is not so obvious as the scammer or prisoner in his little commercial endeavor.

Dozier Internet Law: Beware of Online Advice From Professors

Dozier Internet Law — Tue, 27 May 2008 08:00:04 -0700

Dozier Internet Law represents businesses in online litigation matters. We are dealing with issues in real, live disputes everyday and debating with opposing attorneys the nuances of the laws, and briefing and arguing issues in the Courts around the country. There is a hotly debated issue surrounding Communications Decency Act liability, and our long standing interpretation is pretty much being confirmed by the courts as decisions come down that editing content can put your immunity for third party content at risk.

Professor Eric Goldman, who claims to be a Section 230 scholar, continues to grossly mistate the law as it relates to immunity, claiming that "editing doesn't matter" in the analysis, even going so far as to post a rebuttal to my interview with wired.com on the Twitter situation. I am not sure why the Eric Goldman types, almost universally liberal, free speech expansionists feigning expertise in these types of issues as "scholars", cannot grasp the concepts involved in CDA immunity analysis, do not understand the roomates.com case, and feel a need to attack those who dare disagree with them. Perhaps it is the inability to see both sides of an argument...it is easy to believe yourself when you are teaching law students and your interpretations are being blindly accepted. Dozier Internet Law litigates these issues, and our positions are vigorously vetted by the opposition and judges in the process.

Beware of the online advice, comments, and positions of the professorial types. They are disconnected from the reality of litigation and business, and surrounded by other liberal minded "scholars" and students who slap them on the back and agree with often ludicrous and extreme contentions. I would bet you that if your business followed the advice of these professor types, you would be out of business by now, having been brought to your knees by expensive litigation.

Eric Goldman reminds me of the saying among lawyers about law school professors: If you cannot practice law, you can always try to teach it.

Dozier Internet Law: Top Ten Tips To Manage New York Sales Tax

Dozier Internet Law — Fri, 23 May 2008 06:27:30 -0700

Linda Buquet of 5staraffiliateprograms.com gave me the latest heads up on the business side of this issue and has been providing Excellent Comprehensive Coverage on the New York Sales Tax Issue. Thanks, Linda.

Dozier Internet Law has been dealing with the new tax law that takes effect June 1 in New York. It is obviously a very complicated situation. I have some thoughts at a high level in terms of strategy and tactics in managing this risk pro-actively. I have worked as a lobbyist on three tax bills, two at the state level and one at the federal level, and encouraged the US Senate in testimony in 1998 to use private technology applications. So, I have assisted with the drafting of (and drafted) tax related legislation going back into the 1980s and used to represent the Commonwealth of Virginia and over a dozen local governments in governmental and municipal tax collection litigation.

First, you should not rely upon the possibility that this law will be declared unconstitutional. Amazon's judge may decide the statute is unconstitutional as applied to Amazon and those very similarly situated, but find that the statute is otherwise constitutional and enforceable. Dozier Internet Law may or may not be filing a lawsuit before the June 1 date, but there is no guarantee there will be an injunction ordered prohibiting its enforcement before then. So, while fighting this out in the courts is inevitable, obviously you need to make some decisions. Here is some guidance:

1) Don't sit by hoping that the Amazon case will lead to a quick injunction that will save the day. It might, and it might not. Whatever the decision, it is likely to be appealed, and if two or three years from now the statute is upheld by a final appellate court, your business will likely be on the hook! Don't be fooled by the fact that the Amazon case was filed in the "Supreme Court" in New York. That is a trial court...steps removed from the ultimate appellate court that will likely have to deal with any decision. The odds of settlement in such a high stakes, politically impactive dispute are usually low.

2) Don't just jump to the conclusion that you need to cut off all of your affiliates in New York by June 1. This is a business decision and you need to weigh risk against rewards. This net risk assessment needs to take into consideration a legal analysis of liability.

3) Know your exposure. The fact that your company may have tax liability does not mean that you have any risk at all! Consider adding a specific indemnification agreement into your affiliate agreements and making some credit worthiness decisions. And don't limit it to your New York affiliates...you really don't know where they are, after all! Clarification: Let me explain this in more detail. If you, as a merchant, decide to only permit non-NY affiliates, you will be relying of necessity on certain representations, particularly geographic location. If these representations are incorrect, and liability attaches because of the misrepresentations, then you should have contractual terms requiring an affiliate to reimburse you for the tax liability, and when dealing with either big affiliates or the "grey area" situations you may be well advised to make sure that the affiliate marketer is in the financial position to meet its obligations under such a contract term.

4) Consider establishing a "hold back" for affiliate commissions more than enough to cover any tax liability. This obviously becomes tricky in the sense that you don't want to retain commissions clearly owed to non-New York affiliates, so also establish a reliable method for evaluating who is, and who is not, subject to the New York law, although this will never be foolproof. Clarification: Merchant financial models don't take into consideration an unanticipated liability like retroactive tax liability. Some may consider, instead of relying upon contract representations and warranties from an affiliate, a more definitive and lower risk approach. If it makes financial sense, and subject to negotiations, another option is to establish the escrow account. There have been comments about the tax liability not being the affiliate marketer's responsibility. Of course, there may be a shifting of responsibility in a contract breach situation, and most importantly if a merchant is now faced with having to take some months to implement the necessary processes and technology to be able to charge the customer sales tax, merchants have other options such as this approach to keep the affiliate program going in the interim.

5) Amend your affiliate contract to allow for the creation of the liability reserve (like a tax escrow in a mortgage) to cover your sales tax liability until you can start charging. You likely can't give an affiliate personally identifiable information, and the affiliate contract is the perfect vehicle to reach an agreement on how this will be handled. Clarification: Personally identifiable information includes state of residence, particularly if the merchant has already agreed it will not be shared by contract in its privacy policy. Consequently, merchants must be careful to craft a solution that will not disclose state of residence in the accounting process with affiliates until its privacy policy can be amended.

6) Amend your privacy policies to allow for certain personally identifiable information (New York addresses) to be communicated to your affiliates. This may, or may not, be applied retroactively, and if not then you will need to segregate data. Clarification: This addresses accounting processes. Otherwise, affiliates will be unable to have any meaningful confirmation or validation of New York state customer transactions that may have a direct financial impact on them.

7) Google got a carve out...yes, that is my guess from reviewing the latest comments from the Department of Taxation in New York. It looks to me like there is language that removes their adsense program (for the most part) from coverage. If you cannot win at the legislature, carry your battle to the executive branch! The tax guidance interpreting the law has very likely come under the influence of the influential. Figure out a way to get your business treated well behind the scenes of all of this. It looks to me like Google did.

8) Begin to organize and be willing to finance litigation challenging the constitutionality of the law. Understand that if New York is successful, other states will follow. There has never been a "tax holiday" on Internet purchases. Consumers have to report their purchases and pay taxes. The issue here is the requirement for the merchant to charge and remit. If the industry is to prevail, it must organize and bring overwhelming force down on the New York situation.

9) Establish a special interest group. I was a founder and the National Legislative Chairman for a major national bar association in the 1990s. It can be done. Our impetus was also threatening legislation, but it now has grown into a dynamic and powerful legislative, educational and business association. The many, many small and mid-size affiliate marketers and related business interests need to come together to be heard early on in the process (unless you have leverage and resources like Google and can deal with things on your own!).

10) My last piece of advice is probably the most critical. We have entered a landscape littered with mines and minefields. Every business affected will likely have a lot in common, and alot not in common, with each other. You should deal with this situation as a unique problem to your organization first and foremost. There are many tactics available to consider. One is litigation, one is accommodation and negotiation with the tax department attorneys and Attorney General to try and get a carve out for your business, one is termination of business relationships, one is going the political influence route, one is shifting the burden and liability to affiliates, one is turning to Congress for pre-emptive relief, and...well, I could go on and on. Just work through this situation in a quality way with the right team.

Oh, and for affiliates out there in New York...just about everything I have said also applies to you. The industry realizes that you are losing your businesses because of this law. The reality, of course, is that affiliate marketers and the like from all across the country (except New York!) will now target New York consumers, and New York will lose an entire segment of small businesses throughout the state and control over compliance with New York laws. I expect that the next state to try this will also ignore the law of unintended consequences, and the same thing will happen...until there are only a couple of "tax haven" states where all of the affiliate marketers are located!

So, the final message is for the State of New York: If the momentum continues, New York affiliate marketers will be shut down entirely. You should have anticipated this consequence. No, you will not increase your tax base significantly. But you have added to your unemployment rates. We need to work together to save the many New York businesses going under.

Additional Comment May 24, 2008: We represent and have represented affiliate marketers, merchants, ad networks, search engines, and just about every other category of company or business involved in affiliate marketing, it seems. Affiliate marketers have no apparent immediate solution to this situation except to hope that merchants don't cut them off if they have a New York presence or merchants don't suspend their affiliate programs and only allow "blue chips" with strong balance sheets to continue. My suggestions are that the merchants don't jump to the conclusion that they should immediately cut off New York affiliates, and that there are many options available to merchants other than the "death penalty" for its entire affiliate program due to uncertainty about geographic location and presence. This is not a blog entry that is pro-merchant, pro-affiliate, pro-ad network, or pro-ad agency. And it is not anti-merchant, anti-affiliate, anti-network, or anti-ad agency...my comments are my personal views on the overall situation without regard to the various interest groups involved...but I must confess that all of my comments are "pro-smart decisions" and "anti-jumping the gun"!

By the way, I'm not suggesting the hold-back would be the exact amount of tax liability. Tax rates vary by jurisdiction and product sold. Any escrow of funds would involve a sum more or less and based upon a formula the merchant decides to implement that it believes is in its best interests.

I am not suggesting this approach in a vacuum. Everything is negotiable. Clearly a hold back won't work for some affiliates and some merchant programs. I expect you will begin seeing both a hold back requirement or creditworthiness reviews by some merchants, or a combination of the two, or a total exclusion of NY "presence" affiliates. Of course, those working through ad networks have unique challenges and merchants will have to revisit that relationship in light of the difficulties in tracking and reporting NY sales from NY affiliates, and the solutions will likely involve a variety of these actions. My suggestions are valid business alternatives to merely shutting down either NY affiliates or affiliate programs, restricting the tools affiliates can use, or other onerous steps.

Given the fact that merchants really do not know whether affiliates have the requisite New York presence to be subjected to the law (because that would be based upon the information provided by an affiliate), expect to see alot of activity next week. Determining which affiliates are "New York" affiliates is a very important point, and that is a basis for my comments.

Instead of finding reasons why approaches will not work, affiliates should be organizing their thoughts and focusing on solutions, and then going proactively to merchants with proposals that will address this new liability. Get to the table as soon as possible with constructive suggestions.Otherwise, affiliate programs are at risk. My view is that there are those who think they can, and there are those who think they can't. They are both right!

Dozier Internet Law: MySpace Hacking Indictment Well Supported

Dozier Internet Law — Fri, 16 May 2008 22:55:49 -0700

The federal prosecutors in California obviously did their legal research before asking the grand jury to indict under the Computer Fraud and Abuse Act in the myspace.com suicide case. I don't like the statute's seemingly over-broad reach. I've criticized the statute in the past for the very same reasons some of the free speech liberal commentators object all over the airwaves today. The difference, however, is that I don't pretend to make the law mean what I would like for it to mean. It is what it is. And, as it is written, the prosecutors believe they are right, I think they are right, and the 9th Circuit does too!

Wonder if the prosecutors read my blog entry from last June about Dozier Internet Law and our view on the law of hacking? And I wonder how many of these law professors and talking heads on TV have ever tried a hacking or unauthorized access case? Maybe the prosecutors are new to this, maybe they aren't. But at least they did their legal research. Commentators, particularly the "free speechers" expressing outrage over the indictment, should be so diligent. There's at least one law professor so outraged he is offering his legal services for free. A little research, Mr. Professor, may be in order. Here's why:

California is in the 9th Circuit. I suggest anyone interested in commenting on the case who also wants to sound somewhat knowledgeable read the Middleton v. US case decided by the 9th Circuit. I suspect the prosecutors will use this case to argue that unauthorized access causing damage or loss has already been recognized as a crime in the 9th Circuit. Lay on top of that decision another 9th Circuit case, Creative Computing v. Getloaded.com, which Dozier Internet Law argued before the 9th Circuit, and you can see that the rationale the prosecutors are using has already been established in the 9th Circuit Court of Appeals in a couple of decisions. The trial court HAS TO follow this case law from the 9th Circuit Court of Appeals! Anywhere else in the country and they would not have a trial court bound by this precedent. Smart prosecutors, I would say.

Visit the Dozier Internet Law Hacking page on our site and you can see that our interpretation has always been that such access in violation of a user agreement or terms of use violates not only the CFAA but also many, many state computer crime laws. For those who think that the CFAA applies only to damage to a computer, read the code sections again. And for those who believe that a damage or loss could not include personal injury or death, view the expansive definition of "loss". How could this statute evolve since its passage in the late 1990s to be so inclusive today? 9/11 and the Patriot Act, frankly. You can research the changes that were made to the law, review the legislative history, and read the Computer Fraud and Abuse Act from top to bottom. You may even want to re-read the Dozier Internet Law Hacker Blog Entry from last June in which I made the same points the prosecutor will likely be relying upon, and described a criminal hacking trial for which I was lead counsel in which the Judge also found that violating a terms of use is unauthorized access (won on other grounds).

No, this is not an unprecedented case. The FBI and Department of Justice recently raided our client's offices in Florida based on an alleged website user agreement violation. Another FBI investigation targeted a client for doing the same thing in Northern California. The concepts may seem novel or unique to those feigning expertise in this area of the law. But, the indictment is likely well grounded in law, and I am not surprised at all that the prosecutors brought charges under the CFAA. Particularly in California and the 9th Circuit.

The lesson, of course, is that those contracts you agree to online are binding, and those abusing a website and joining the world of online scofflaws had better watch out. I still don't like the statutes that associate hackers with non-malicious unauthorized access. But, no matter how hard the left wing, free speech commentators try, they can't change the law. They see it as they want it to be. We see it as it is. And it is what it is! Ask the 9th Circuit.

Dozier Internet Law: The Web is Not Anonymous

Dozier Internet Law — Thu, 15 May 2008 04:25:17 -0700

Dozier Internet Law chases a lot of scofflaws. Sometimes the subject matter is copyright infringement, sometimes trademark infringement, often hacking and defamation. A reporter interviewing me last week was surprised to learn that individuals posting information online were not entitled to absolute anonymity and was surprised that you could subpoena information to identify the source of the publication of defamatory information in the airline industry. That got me to thinking a little about the knowledge base of most netizens.

Yes, you can be identified. For every instance in which Public Citizen wins a case preventing the disclosure of the identity, I suspect they turn down dozens of cases they know they can't win. There is no absolute right to privacy or anonymity online. Identities are disclosed everyday in litigation through a process called "discovery". And most people leave pretty good tracks. If the plaintiff is obviously going to lose the case, the courts won't let the plaintiff use discovery to identify a defendant. But if the case is arguably valid, there is no problem with issuing extensive and far ranging discovery to locate and identify a defendant. And it is a process used often by lawyers, but an issue not publicized by the extreme left wingers very often. That way, each "victory" they claim sounds signficant. But most, frankly, are irrelevent or at least not significant. At Dozier Internet Law we go after these anonymous types often, and with great success. Rarely does Public Citizen get involved. When they do, their involvement is an anomaly. We don't publicize all of the cases in which we are identifying, through discovery, anonymous scofflaws, but from the volume of press release type emails and blog entries flowing from Public Citizen, I can understand this reporter's misunderstanding.

Dozier Internet Law on The Scary and Unknown Weapon of Contributory Copyright Infringement

Dozier Internet Law — Wed, 30 Apr 2008 19:37:17 -0700

Dozier Internet Law handles alot of e-commerce and website legal audits. That means that we review a website and e-commerce business and "get it legal". That is becoming more and more difficult because we have to look into the future and figure out where legal doctrines are headed and what the popular lawsuits will be about in two or three years. Because, as our clients learn, what they do today may not have an impact on them for years. It would be a shame to be doing something today that you learn three years from now was illegal.

And to do this effectively Dozier Internet Law, as a litigation law firm, often sees the evolving issues very early on. Our Dozier Internet Law Federal Court Report serves as a monitor and advance early warning avoidance system, in a sense, for web businesses to understand what will get you sued. But you really have to live the law of the web day in and day out, have a firm grasp of technology, be intimately familiar with the business of the web, and have a great imagination to see the future. We don't claim to be perfect, but here is some food for thought on a legal risk that could lead to your company being sued for copyright infringement.

Under Section 512 "safe harbor" protection, a business can avoid copyright infringement liability if you do certain things at certain times. So, if you have a music site, and you follow the Digital Millennium Copyright Act provisions, you likely won't be sued or have liability unless your site is reliant in some material respect on the copyright infringement occurring. Under the doctrine of "contributory copyright infringement", liability for copyright infringement extends to business partners who are intentionally inducing or encouraging the direct infringement. So, if you know or should know of the infringing conduct, are advertising on a site that is carrying copyright infringing materials, you are providing services and support for the infringing site, you are a payment processor or even a web host or web developer, or you are somehow monetarily benefiting from the traffic at the site, you may be asked in a not so gracious way to assist the courts in defining who is liable as a contributory copyright infringer in the online world. And these lawsuits will be filed against individuals even though the small business is a corporation. That's a pretty scary possibility. But that is where I see things headed, and the only issue will be where the courts will draw the line of liability...what concepts, doctrines and rules of law will be adopted from the case law to apply to an online business world operating in an entirely new way? No one knows. But we can make an educated and informed guess. And that is what we at Dozier Internet Law do just about every day.

Sure, it's guesswork. If you can't see the trees because of the forest, this arena is not a place for you as a business person. As Internet lawyers we have to not only see the trees, but the saplings that will become the forest. And sometimes we have to see the seeds that will become the saplings that will become the trees that will become the forest.

If you want to avoid liability for contributory copyright infringement you need to know a lot about the business practices of your customers, business partners, and affiliate marketers. Pleading ignorance may be a successful defense, and I am sure one that will be used in virtually every case by the defendants. If you have a six figure legal budget to fight the lawsuit you may like your chances. But the smart thing to do is to make an informed decision. We help with that.

Dozier Internet Law: Blogger Reputations Ruined

Dozier Internet Law — Tue, 29 Apr 2008 06:15:04 -0700

At Dozier Internet Law we are constantly addressing the problem of false and defamatory attacks against clients on blogs. I'll be lecturing on the issue of online defamation to Virginia lawyers this summer in a course sponsored by the Virginia Law Foundation, governed by representatives of the Virginia State Bar, the Virginia Bar Association, and seven of Virginia's law schools. One of the interesting things I plan on doing is offering an outline of a blogosphere attack, and I'll really try to get to the motivation and mentality of "attack bloggers". They are growing in numbers everyday. While the blogosphere denies the existence of the miscreants and scofflaws within their community, once in a while you actually hear one admit what we at Dozier Internet Law already know. Take a look at this posting from a popular business social networking site in response to a question about how to build a business with a blog:

"2). Pick an enemy and attack them hard. The point is to galvanize people. This WILL lead to traffic."

Controversies and outrageous claims draw attention. That means eyeballs. And that traffic leads to more business, or more revenue, for the blogger. It is not hard to see how this works, but it is unusual to get such a blatant admission from a prominent blog professional. "Attack bloggers" need to be reined in. We are having pretty good success dealing with these types without having to file lawsuits all the time, but when it comes to push, we usually will pull the trigger and sue the "attack blogger". It's not free speech to create outrageous lies and propagate them all over the web. So, if you get a communication from us, be it a letter, a copy of a lawsuit, or a telephone call, consider the consequences that are about to ensue. The great majority of you already get the picture and agree to our demands. Smart move.

And, for many of those intellectuals who relish this new toy called the web, and you are in high school or college, or have a life and a career and an employer, consider how it is going to look when, for the rest of your life, a lawsuit describing your misconduct in vivid and creative terms shows up on the first page of Google results for your name. Do you honestly think that a business is going to take a chance on hiring someone who has exhibited such poor judgment and inappropriate conduct? No. The business is going to move you to the bottom of the stack of applicants.

So, when you get a communication from us, understand the consequences. These lawsuits will show up on the front page of Google results under your name. SEO is not the sole province of bloggers, by the way. While your lawyers, particularly those involved with the public interest groups, use your case to gain attention and raise contributions, your reputation is being ruined forever. Your reputation as an employee, your reputation as a college applicant, your reputation as a job applicant, your reputation as a private person, your reputation as a husband, and your reputation as a father or mother. Maybe you won't be confronted with it, but the impact will likely be profound, from prospective employers passing your resume by to parents avoiding you at school functions. It will happen. I tell clients that the problem blogger isn't always found in the Dozier Internet Law Blogger Persona List because we don't consider the immature or unsophisticated individual as a "scofflaw" blogger.

But, for those with something to lose today or something to lose in the future...beware that the "poetic license" you thought you had will likely turn out to be a trap door into reputation hell.

Dozier Internet Law: Law of PPC Advertising

Dozier Internet Law — Tue, 22 Apr 2008 06:44:03 -0700

I'll be speaking this week at the Click Quality Counsel on the law of PPC advertising. We'll post the Powerpoint on the Dozier Internet Law site shortly. At a high level, I go through the primary legal issues (trademark, domain name and false advertising) involved with a PPC ad. The four issues involve the use of a competitor's trademark in a search term, ad title, ad description, and url presented in the ad. The lesson to take away is that this is an unsettled area of law for the most part, and each situation turns on the unique facts involved and the way the ad is viewed in its totality to the consumer. There were at least four lawsuits filed in the past 45 days between businesses, but most litigants are avoiding naming Google as a "contributory infringement" defendant. When you go after Google, expect not only to have to incur huge legal expenses but also expect that their good lawyer friends over at Public Citizen will once again come in and file briefs supporting Google's position that there is no contributory trademark infringement liability, a dubious position in my opinion. As an aside, it looks to me like Public Citizen and Google's in-house IP counsel are trading legal support back and forth...kind of a "you scratch our back and we will scratch yours". It will be interesting to see how long this honeymoon of mutual admiration and support lasts since there are clearly some issues they should clash on relating to behavioral marketing and data.

Dozier Internet Law represents businesses involved in PPC disputes and we assist businesses in understanding the risks so good business decisions can be made. A quality risk assessment involves understanding a number of factors that go beyond the law in a strict sense. I think of it as a pragmatist's perspective. I think the lesson learned, and you will see this in the slideshow going up on the Dozier Internet Law site, is to be very careful in the PPC world. Sure, the odds are low you will get sued. But when you do...you are paying expensive IP trial lawyers, and using expensive expert witnesses, in an expensive Federal court, dealing with an evolving, complex area of law. That's a recipe for disaster for the small business-a recipe that almost always carries with it individual or personal liability for the owners of the business even if you have a corporation. Ouch.

Dozier Internet Law: How Dozier Internet Law Shut Down The Blog Professor and Librarian

Dozier Internet Law — Wed, 16 Apr 2008 06:41:16 -0700

Once upon a time there was a professor at a prominent Eastern university who taught blogging as a course for undergraduates. Dozier Internet Law was hired to get a section of his blog, hosted on a University server, taken down since it was focused on attacking our business client. So we did not go directly to him. We went directly to the President of the University. And the President of the University went to the General Counsel of the University. Not only did the blog come down, but Mr. Blog Professor agreed to never mention our client's name again...and all without a lawsuit.

Once upon a time there was a librarian. She mentioned in a post on a site, and then in her own blog, that our business client was an alleged "scam operation". Dozier Internet Law approached her, explained the realities of life to her, she ran off and got the assistance of one of the prominent free speech groups, and they promptly caved in to our demands in full. No lawsuit was filed. She is to never mention our client's business name again, and all of her posts and blogs were pulled off the web forever.

Professors and Librarians. The Bastions of Free Speech. In both instances they had legal counsel. In neither instance was a lawsuit filed. In both instances all of the posts critical of our client were removed from the web forever. Both of the bloggers agreed to never speak, or allow others to speak on their blogs, about our clients again. That's results.

So every time a "learned professor" spouts off about free speech, understand that he or she is in a survival mode. Because while the general public may not know about the many matters we handle against the professorial types, the word has likely spread like wildfire through the halls of academia that if they think they can hide behind their institutions or some free speech lawyers like Public Citizen, they are wrong.

If you receive a letter from us you are usually being invited to resolve a matter through appropriate and reasonable discussion and negotiation. If the issue becomes public, you have a big problem. If the matter leads to litigation, you have a bigger problem. If you are lucky enough to convince one of the public interest groups to take up your case, you really have a big problem. Ask these public interest groups how much money they have in a fund to pay for a judgment rendered against you. The answer is Zilch. They are taking your case to get publicity, incite the passions and prejudices of their constituency and raise more money...and all of the risk of the outcome of the litigation is on your shoulders. When a financial judgment comes down, you have to pay it. And, when someone "Googles" your name it is likely they will read all about your misconduct and the lawsuit and the judgment on the first page of results for the rest of your career, and possibly your life. That's why disputes get resolved privately and confidentially...and why the public interest groups make private disputes highly visible and public. Lawyers owe a duty to always try to act in the best interests of their client. Do public interest lawyers like Public Citizen act in your best interests when faced with a dispute? Or do they act in their own self interests, turning private matters into highly publicized public issues to gain traction in fundraising so they can continue to have a job and pay their bills?