Category: Internet law

  • Could Amy’s Baking Company Bring Legal Action For Online Comments?

    Savouring a soft Scottsdale Sunset by Nelson Minar from Flickr
    Savouring a soft Scottsdale Sunset by Nelson Minar from Flickr

    So social media blew up this week after Amy’s Baking Company, owned by Samy and Amy Bouzaglo, was featured on Kitchen Nightmares where Chef Ramsey walked away after he felt that the owners of the restaurant were not willing to listen to his critiques. On the show, Amy claimed that the business was hurt by “online bullies” who told lies about them.

    After the show aired, the business received national attention and there were several irate posts from the owners on the restaurant’s Facebook pages – one they claim was hacked and the new one they started yesterday.  According to the Phoenix Business Journal, one of the owners’ posts stated they were keeping track of who was commenting and that they “will be pursuing action against you legaly, and against reddit and yelp, for this plot you have come together on. you are all just punks.”

    Well, what if Samy and Amy wanted to pursue legal action against people who left comments on their Facebook page, Yelp, or Reddit? What would they claim – infliction of emotional distress? Defamation? For the most part, sharing your opinion is protected by the First Amendment. Yelp and Reddit simply provide forums for others to share but they don’t control the content that is posted, so there’s probably not much they could do in regards to those sites themselves.

    What about defamation? In Arizona, defamation requires a false statement about the plaintiff, communicated to a third party, that hurts the plaintiff’s reputation. If Samy and Amy filed defamation claims against anyone who created a post about them or their restaurant, the defendants have three main ways to defend themselves.

    Defense #1: There’s no defamation if the statement was true.
    If you didn’t tell a lie, there can be no defamation. If you make a statement that only contains your opinion and you told the truth about your thoughts and feelings, there can be no defamation.

    Defense #2: The only part of the statement that was false was insignificant.
    If the only part of your statement that was false was insignificant, there’s no defamation. For instance, if you write a bad review for a restaurant because you didn’t like their XYZ burger but it turns out you ordered the RST burger, that would be a false statement. If the only thing that wasn’t accurate was the name of the item you ordered, but your review of it was true to your experience, that misstatement would be so minor that it wouldn’t qualify as defamation. The part that was the lie likely didn’t hurt the plaintiff’s reputation.

    Defense #3: There was no reputational damage.
    This is my favorite of the defamation defenses. Essentially this defense says the plaintiff’s reputation is so bad that there’s nothing you could say that would make it worse. This is a very high bar to clear. I suspect you’d have to make a false statement about a modern day Hitler to have a reputation that’s this bad. In most cases, a person can have a really bad reputation but you could make it worse if you told a lie about them and said they kick puppies or molest children.

    According to one of Amy’s Baking Company’s Facebook pages, they will be having a grand re-opening on May 21st. It will be interesting to see the reviews from the people who visit the restaurant that night.

    If you suspect you’ve been the target of defamation, please contact an attorney in your community. If you want more information about online defamation and the defamation defenses, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

    You can also subscribe to the Carter Law Firm newsletter.
    You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Reddit’s New Privacy Policy – How Terms of Service Should Be Written

    Startup Schwag Bag #2 by homard.net
    Startup Schwag Bag #2 by homard.net from Flickr

    Are you on Reddit? I love Reddit. It’s a great way to connect with the various online communities that matter to you.

    Reddit recently announced that its new privacy policy is going into effect on May 15th. You can read the text of the policy here. Seriously, go read it.

    What I love about this policy is how simply it is written. It’s straightforward, well organized, and written in English – not legalese. It’s a policy that Joe Average people can read and understand how the site will use their information. I appreciate that Reddit even said that they want their users to read and understand their policies.

    Reddit’s approach should be the standard way that lawyers write a company’s terms of service for their clients’ websites. They should be simple, direct, and be organized in a way that it’s easy for users to understand the site’s rules. They don’t need to be excessively long or use words that no one uses in real life.

    A website’s terms of service is a contract between the site’s owners and its users. If you disagree with a site’s terms, don’t use the site. It’s important when you join a website where you will be interacting with others or posting content that you understand your dos and don’ts as well as what the site can do with your information and anything you post.

    Some people think it’s ok to simply take another website’s terms of service, change the name of the company to their own, and slap it on their website. This is asking for trouble, especially if you don’t understand the terms that you’re copying. You may be creating rules for your users that you don’t want in place. Reading other website’s terms of service is a good place to get ideas if you want to try to draft your own, but it shouldn’t be a substitute for making sure your terms of service reflect your individual or company’s needs. You never know who draft the terms you’re copying.

    I love drafting custom website terms of service. I get to combine my client’s needs with what the law allows and come up with a document (in English) that will work for them. I know it sounds boring to some people, but to me it’s like a big puzzle that I get to figure out.

    If you operate a website where users get to post content or interact with each other, please make sure you have a solid set of terms of service that fits your needs. If you can’t afford to hire an attorney to draft your terms of service from scratch, at least have one to review your terms of service or pay for a consultation to discuss what your provisions should be in your terms of service.

    You can also subscribe to the Carter Law Firm newsletter.
    You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • FAQs about the Legalities of Social Media

    Carter Law Firm's Official Postcard - let me know if you want me to send you one.
    Carter Law Firm’s Official Postcard – Let me know if you want me to send you one.

    I had the pleasure of speaking at the Public Relations Society of America’s Western District Conference last weekend. I led two sessions: “So you want to do a flash mob” and “The Legal Side of Blogging: 10 Questions to Ask Before you Hit ‘Publish.’” Both sessions were great and I wanted to share some of the frequent questions I get when I talk about the legalities of social media.

    What should you do if you’re outsourcing your blog content?
    You need a kick ass contract that clearly states who owns the copyright in the content that is created. If the hiring company obtains copyright, does the blogger get permission to put a copy of the work in their portfolio to obtain other work? The contract should also state who is responsible if there are any problems related to the work (i.e., copyright infringement claim) or if there are any disputes related to the contract.

    What should you do if you want to use a photo from a company’s site, such as if want to write a positive review of their company?
    There’s a chance that using the photo could qualify as fair use; however it’s probably best to avoid the possibility of being hit with a copyright infringement claim by asking the company if you can use their photo. You never know who owns the rights to an image and if there are any restrictions related to using it.

    What’s the worst case scenario if you use an image from Google Images without verifying that it was available for use with a Creative Commons license or had been released to public domain?
    You could be sued for tens of thousands of dollars for copyright infringement. I always say that just because someone sues you that it doesn’t mean they’re going to win, but in this case, they might. You can still be sued and lose even if you didn’t mean any harm.

    I get permission to use every photo on my blogs or use photos that are available under Creative Commons licenses that allow me to modify and commercialize each image.

    What if you’ve been using Google Images or you haven’t kept track of what images you’re allowed to use?
    Probably no one wants to hear this, but I’d rip every image out of your site and start over, making sure that you own or have permission to use every image on your site.

    These are my rules of thumb when it comes to social media:

    • Assume everything you post online will be seen by your best friend, your worst enemy, your boss, and your mother. If you’re not ok with one of those people seeing what you want to say, don’t post it.
    • Don’t post anything online that you wouldn’t put on the front page of the newspaper.

    For more information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

    You can also subscribe to the Carter Law Firm newsletter.
    You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Sending a Bill When Someone Steals Your Work

    Mushroom? by Oslo in the Summertime from Flickr
    Mushroom? by Oslo in the Summertime from Flickr

    I’m a member of a Facebook group for people to discuss and share instances where other people use their work. Most of the members are nature photographers who do gorgeous work. Most of them have no desire to sue people who steal their work, but they would like to be compensated. And some of them are getting pissed when they find that someone has stolen their work and have started sending bills to people who use their work without permission.

    This isn’t a bad idea. I’ve had a friend get a bill in the mail when he used someone’s photograph without permission that he found via Google Images. You can view it here or below.

    When someone comes to me and wants to send a bill to anyone they discover is infringing on their copyrights, I suggest they add information to the website where they show their work about licensing terms and fees. This makes it more credible when the artist sends a bill that essentially says that by using a photograph, the infringer has agreed to pay the fee and abide by the license’s terms. As long as the infringer complies, they are no longer committing copyright infringement.

    The downside of this strategy is many people will ignore such a bill if they receive one. Then the question for the artist is “What’s next?” Do you sue them? Send a DMCA takedown notice to get the work taken off their site? Call them out publicly for using your work without permission? Do you drop the issue?

    My friend who got the bill for using an authorized image earlier this year got a bill from a company with a track record of suing people who don’t pay the bill and winning. In his case, he choices appeared to be pay the bill (or try to negotiate a lower price) or get sued. If you don’t follow up when people don’t pay the bill, it’s kind of like the photo radar tickets. If you get one in the mail, you can deal with it by paying the fine or going to traffic school or avoid service for four months until the court drops the charge.

    I’m not one to tell people what they should do, but I advise people to think their plan of action all the way through before selecting a course of action. If you need help deciding what’s the best strategy for protecting your copyrights, please contact a copyright attorney in your community.

    For more information about copyright and blogs, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
    You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Update on Registering the Copyright in your Blog

    Library of Congress by ctj71081 from Flickr - Where your work goes when you register it with the U.S. Copyright Office.
    Library of Congress by ctj71081 from Flickr – Where your work goes when you register it with the U.S. Copyright Office.

    I’ve been a proponent of registering your copyright in your blog every three months. The federal Copyright Act states you must register the copyright in your blog within three months of publication or one month of learning of the infringement, whichever happens first.

    So every three months (March 31st, June 30th, September 30th, and December 31st) I have a note on my calendar to register my blogs. I take all the content I’ve added to my blog since my last registration, create a PDF, and register it.

    I made a mistake on my last copyright application.

    I let logic dictate my action and I claimed that my publication date was December 31, 2013 on my last application. I should have said that my word was “unpublished.” If I declare that my work is published, I have to register each post individually. If the work is “unpublished,” the dated posts can be registered as a group.

    You would think that putting something on the internet counts as publishing a work, but it doesn’t. In the Copyright Office’s words, “For copyright purposes, ‘publication’ means the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display is also ‘publication.’ The following do not constitute “publication:” the printing or other reproduction of copies, a public performance or display of the work, or sending copies of the work to the Copyright Office.”

    If the only place you put your content is on your blog, it’s likely not published. If you repurpose your content in multiple locations, it might be. (Talk to a copyright attorney to see if you’ve “published” your work.)

    The downside of blog content not counting as published is you have to register you work prior to it being stolen to be eligible for statutory damages under the copyright laws. So the idea a lot of my copyright attorney friends and I believed about registering every three months is not a good strategy. Also, the Copyright Office doesn’t like it when you register posts that were released on different days as a single work. Experience tells me that they’ll let you do it, but if they know that’s what you’re doing, they’ll tell you that you have to register each post individually.

    Because of this, the best strategy for people who want to be able to sue for copyright infringement if their blog content is stolen is to register your work before you put a post on your site. Yes, this will be more expensive because each post will need its own registration, so you might want to only register the posts you think will be stolen, and even then you may want to only register the posts that you think will be stolen by someone who can afford to pay the damages assessed by the court and your attorneys’s fees. Otherwise you might be better off not suing for copyright infringement and sending a cease and desist or a DMCA takedown notice.

    If someone steals your work, you should talk with a copyright lawyer ASAP. Even if you didn’t register you work before the infringement occurred, you may be in a situation where it is worthwhile to pursue actual damages which is how much money you lost and the alleged infringer made because of the infringement. They can also discuss other ways to address infringement that don’t involve the court system.

    For more information about copyright and blogs, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
    You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • DMCA Abuse

    Copyright license choice by opensourceway from Flickr
    Copyright license choice by opensourceway from Flickr

    The Digital Millennium Copyright Act (DMCA) is part of the copyright law. Its purpose is to protect people who provide online forums but don’t control the content people post to them – like YouTube and Pinterest. If they receive a notice that material on their site is allegedly copyright infringement, they must remove it. This law gives content creators a way to react to copyright infringement when someone posts their work online without permission. Instead of sending a cease and desist letter to the person who stole their work, they bypass them and deal with the infringer’s webhost instead.

    Lately, I’ve seen a few instances where people have been improperly using the DMCA to get material removed from the internet that they don’t like. I’m starting to refer to these acts as DMCA abuse.

    1. Using the DMCA to address TM Infringement
    The DMCA should only be used for copyright issues – when you suspect someone is using your original content without your permission. Don’t use it to removed suspected instances of trademark infringement.

    In a recent incident, GoPro allegedly sent a DMCA takedown notice to DigitalRev’s webhost to remove a picture of its camera from the site. The photo was in article that compared GoPro against another camera. GoPro didn’t think DigitalRev copied their content, but that they were using a picture of the camera that had the wrong branding. GoPro should have sent DigitalRev an email with a correct image of the camera instead of getting the whole article pulled for alleged copyright infringement.

    2. Using the DMCA to Eliminate the Original
    This story really bothered me. Somebody copied someone’s original content onto their site, and then used the DMCA to claim that they were the real owners and get the original removed for its site. Thankfully the original author could get their work put back on their site by sending a DMCA counter takedown notice.

    Apparently this is a common incident. This behavior was so disturbing, I had to make a video about it.

    If you think you have questions about how you, your brand, or your content is being used online, please consult an intellectual property attorney. Don’t just send a DMCA takedown notice – that may not be the right tool to address your problem. When you send a DMCA takedown notice, you attest under the penalty of perjury, that your statements are true. If you send a DMCA takedown notice and it turns out what you did qualifies as what I call DMCA abuse, you may have committed a crime.

    For more information about copyright, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
    You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Using Google Image Search to Detect Copyright Infringement

    Google Image SearchI heard you can input a picture into the Google Images search engine to see if someone has stolen or used one of your pictures without your consent. I decided to try to figure it out to see if it works.

    I’m happy to report it’s super easy. Here’s how you do it.

    1. Go to the Google Images search page.
    2. Click on the camera icon on the far right of the search bar. This will bring up the “search by image” box.
    3. Paste the URL for the image you want to search for or upload it and hit “Search.”
    4. The results will show you every instance where someone has used that photo.
    My paintball wound - Photo by Merlz Tamondong
    My paintball wound – Photo by Merlz Tamondong

    I started looking for images I’ve used on The Undeniable Ruth and I found an instance where someone pulled an image off my site without my permission. It’s a picture of me from Ladies’ Paintball Night. Someone put it on a paintball forum without asking me first. Even though this is a picture of me, I don’t own the copyright in it so there’s nothing I can do to get it removed, and to be honest, I don’t really care.

    This search engine is one tool you can use to search for copyright infringement, but it won’t catch every copy of your photos, just the copies of the photos from your site. I know this picture of my dog Rosie is on my site and I shared it with Attorney at Work for a post I wrote for them. I didn’t give them a copy of the image off my site, so when I searched for this picture of Rosie, it only showed images from my site, not theirs.

    My sweet Rosie dog
    My sweet Rosie dog

    If you’re worried about people stealing your work from your site, keep an eye on your analytics. A lot of people think it’s ok to use an image off your site as long as they give an attribution and a link to the source. All they may have done is committed copyright infringement and told you about it. I’ve discovered two instances of copyright infringement of my work this way.

    If you create any type of content and you’re concerned about copyright infringement, please consult a copyright attorney in your community who can help you create and implement a strategy to protect your work.

    Lights Camera Lawsuit

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

    Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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    Ruth Carter

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  • Maintaining Privacy with an Online Alter Ego

    Paper Bag (#95734) by Mark Sebastian from Flickr
    Paper Bag (#95734) by Mark Sebastian from Flickr

    I just got back from the interactive track of South by Southwest (SXSW) in Austin – the most amazing conference for all things related to social media. I attended as many sessions as I could but there were dozens of other talks I wish I could have attended. I came back to Phoenix buzzing with ideas.

    I attended an interesting session by author/journalist Pernille Tranberg from Copenhagen. She co-authored the book Fake It! Your Guide to Digital Self-Defense.  She uses her real name on LinkedIn and Twitter, but she uses fake names on Facebook and for filling out forms online. She has two complete alter egos. Her friends know her fake name on Facebook but she generally doesn’t share that information with others.

    In a world that pushes of online transparency, her ideas run in the opposite direction. This is a great tactic for people to use who don’t want everyone looking them up or if they want to have a private online life that is completely separate from their professional life. Having a fake persona makes it less likely that your boss or prospective boss will be able to find you on Facebook or anywhere else you use your fake name. Additionally, if your fake identity is ever stolen it won’t be devastating for you because there are no assets connected to your alter ego.

    If you’re interested in creating an alter ego for yourself, check out Fake Name Generator. It will give you a name, address, email address, username, password, profession, and even information like height, weight, blood type, and mother’s maiden name.

    Now, does using a fake name violate the terms of service of social media sites that require you to use your real name or have a policy against one person having multiple accounts? Yes. But if no one reports you, how will they ever know?

    I also attended a session on Bullying: Social Media as Problem and Solution which featured Marta Gossage, community manager for Reddit. She spoke about how people are encouraged to use pseudonyms on Reddit and by doing so it allows people to share and connect with people in a way that they don’t feel comfortable doing in real life. She said it also reduces the amount of harassment because most people don’t know each other in real life and participants on the site are good at enforcing the ideal that they can attack an idea but not the person.

    Marta encourages people to use fake names because it’s easier to share without fear of judgment when no one knows who you are and because it’s easier to delete a fake identity than a real one from the internet. This is particularly true for young people who don’t think before they post and may regret the things they post which might affect their ability to get jobs or accepted into college.

    I have a friend who maintained two Facebook profiles during law school – one was under her real name that was mostly a placeholder in case a professional contact tried to look her up. The other was under her fake name where she was free to be herself. Knowing what I know about her career plans, it made sense for her to separate her social life from her professional one. (Don’t worry – she doesn’t do anything bad. She’s just a bit of a free spirit in a conservative industry where some might look down on her boisterousness.)

    If you want to create a fake persona online, remember what Benjamin Franklin said: “Three can keep a secret, if two of them are dead.” Be careful to only share your fake identity with people who will keep it private.

    You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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  • Using the Court of Public Opinion to Stop Cyberharassment

    and bullhorns by mikeinlondon from Flickr
    and bullhorns by mikeinlondon from Flickr

    I recently taught a seminar for the State Bar of Arizona E-Commerce and Technology section. I’m a big believer that if you’re cyberharassed, cyberbullied, or cyberstalked online that you should report it – first to the website or service where it’s occurring and then to the police if the person continues to misbehave despite being told to knock it off or if the website or service doesn’t do anything about it. She said, in her case, law enforcement wanted to pass the buck to another agency than deal with the problem themselves.

    That’s discouraging. What are you supposed to do if you’re being harassed and the people whose job it is to stop this behavior are ignoring you?

    My first thought was, “The squeaky wheel gets the grease.” If you keep reporting the problem, the powers that be might realize that doing their job is the best course of action because you’re not going to go away until they do. You might have to go above their heads and report them to their superiors to make this happen. A nasty letter from an attorney written on your behalf might do the trick too.

    If that doesn’t work or if you’re in a situation that needs immediate attention, consider turning to the court of public opinion and publicly call your harasser/bully for their bad behavior. Use your social network to rally support for your situation. Contact the media and try to get them to run a story about it. If there’s enough public outcry, maybe the powers that be will do their jobs or the person who’s harassing you will leave you alone.

    If you want to turn to the media or social media, my one word of caution is to mindful about what you say. Resist the urge to exaggerate – it might cross the line into the realm of defamation or false light. Instead stick to the facts, your feelings about the facts, and what you want to happen as a result. If you use the media or the public to try to make a change, you have to tell them what you want whether it’s contacting a certain government official, signing a petition, boycotting a business, etc. Don’t tell people to harass the person who is harassing you; that might be soliciting a crime

    Be sure to keep copious records so you can back up your facts with evidence if you need to defend yourself. Some people may attack you just to try to shut you up.

    My final word on this topic is if you’re going to try to use the media or the court of public opinion to resolve a problem, you’re going to have to grow a thick skin. Some people are vicious and will call you out for calling out someone else. Surround yourself with a strong group of supporters to bolster your spirits when the haters come after you.

    If you’re being cyberharassed, consult an attorney in your community to discuss the best strategy to make it stop. You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

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    Ruth Carter

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