Tag: Internet Law

• DMCA Takedown FTW

  I think I do a decent job monitoring my blogs with my sites’ widgets and Google Analytics. I like to see where my readers live and how they ended up on my sites. When I see that someone got to my blog from a site that’s unfamiliar to me, I try to find the post that linked to my site to see what it said.

  

  This week, someone got to The Undeniable Ruth via a blog on BlogSpot. I checked out that blog and found that the blogger didn’t write a post that referred to me or a topic I’ve written about. She copied an image from my post about studying in the pool. She mentioned the name of the post she got the image from, but she didn’t ask my permission to use the image or even give me an attribution. Unfortunately for her, she copied one of the few images that I personally took with my camera phone and own the copyright to it. I decided to send a Digital Millennium Copyright Act (DMCA) takedown notice to Google, which owns BlogSpot.

  The DMCA is a law that provides a safe harbor to companies that don’t control the content on their sites. They have to remove or disable access to the infringing material when they receive a DMCA takedown notice or else they can be liable for copyright infringement. To qualify for protection under the DMCA, you have to register a designated agent with the U.S. Copyright Office. This is the person you send the takedown notice to.

  Google has a DMCA agent, so I sent them a takedown notice to get my picture taken off BlogSpot. A takedown notice is a simple letter that must include the following:

  1. Your physical or electronic signature,
  2. The identity of your work that is allegedly being infringed,
  3. The specific URL for the website where the infringement is occurring,
  4. Your contact information (i.e., your address, telephone number, and/or email address),
  5. A statement that you have a good faith belief that the material violates the law or the copyright owner’s rights, and
  6. A statement, under penalty of perjury, that the notice is accurate.

  I emailed my takedown notice to Google yesterday and I got a response today that informed me that the post was taken down. I tried to visit the BlogSpot post where my photo was published, and verified that the blog post was taken down. I thought they were only going to remove the photo. She can put the post back up if she wants, just not with my picture.

  If you create content, it important to keep an eye on your analytics so you can detect when someone steals your work. I was pleased to see that the DMCA takedown process was fast and easy and that Google was responsive to my notice.

  If you detect someone’s stolen your content, consult an attorney to determine your options for recourse.

  Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
  Please visit my homepage for more information about Carter Law Firm.

  July 12, 2012

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  Ruth Carter

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  Intellectual Property, Legalities of Blogging, Photography & the Law

  Blogging, BlogSpot, Carter Law Firm, Copyright, Copyright infringement, copyright law, Copyright lawyer, Digital Millennium Copyright Act, DMCA, DMCA agent, DMCA takedown notice, Internet Law, legalities of blogging, Ruth Carter, The Undeniable Ruth

• I <3 The Oatmeal

  

  I want to use this week’s post to voice my support for Matthew Inman, aka The Oatmeal. He draws comics that make me laugh so hard, especially the ones about real life situations. I can always count on him to lift my mood. I saw him at his book signing at Changing Hands in Tempe, and he’s the sweetest guy.

  For those of you who haven’t been following the story, Oatmeal was recently threatened with a lawsuit if he didn’t pay FunnyJunk LLC $20,000. FunnyJunk is a website where people can post humorous photos and it apparently it was hosting hundreds of Oatmeal’s images in violation of his copyright. Oatmeal wrote a post about what was happening and accused FunnyJunk of making $100,000+ off his work. FunnyJunk claimed this was a false accusation of willful copyright infringement.

  Some people might be been scared by the threat of a lawsuit, but not Oatmeal. He published an awesome blog where he refused to pay the $20,000 and instead announced that he’d try to raise $20,000 for charity in a venture called Operation BearLove Good, Cancer Bad. Oatmeal ended up raising over $200,000 for charity and was sued by FunnyJunk’s lawyer in the process. Hopefully that case will be dismissed soon and Oatmeal can disseminate the funds.

  As a lawyer I initially cringed when I saw Oatmeal’s plan, but I was relieved when I saw that he has an awesome lawyer who appears to be doing the appropriate lawyer things on Oatmeal’s behalf. I think Oatmeal’s grace and strength in the face of adversity is admirable. I think if you feel you’re being unjustly accused of a wrongdoing, you should stand up for yourself and not do whatever you have to do to make the threat go away. I applaud Oatmeal for addressing this situation very publicly and showing his opposition a lot of respect.  When Oatmeal’s fans starting calling FunnyJunk’s lawyer, he told them to stop and to donate to Operation BearLove Good, Cancer Bad if they wanted to help.

  Much love to you Oatmeal! Thank you for demonstrating the power and influence you can use for good when you build a solid following by doing excellent work. Your hilarious comics and charming personality made you what you are and I’m so glad you didn’t back down from this fight. I hope your legal troubles are resolved soon.

  June 28, 2012

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  Ruth Carter

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  Geek Law, Intellectual Property, Legalities of Blogging

  Carter Law Firm, Charles Carreon, Copyright infringement, FunnyJunk, Internet Law, Matthew Inman, Operation BearLove Good Cancer Bad, Ruth Carter, The Oatmeal

• Phoenix Comicon Badge Art Being Ripped Off

  

  I recently wrote a post about copyright, fair use, and fan fiction and I did an analysis of Marty Freetage’s artwork that was on the badges for Phoenix Comicon this year. It was an awesome parody of Angry Birds and The Avengers. Parodies are generally permissible under the fair use doctrine and I thought Marty’s work was original enough that the copyright holders for Angry Birds and The Avengers probably wouldn’t come after him or Phoenix Comicon for copyright infringement.

  

  This week I was surprised to see a t-shirt for sale on Gabilife that looks exactly like Marty’s picture. A lot of people on Facebook posted that Gabilife used Marty’s work, changed the background, and stuck it on a shirt. Whoever owns the copyright in the badge art has good reason for believing that their Gabilife is infringing on their work.

  This story gets more complicated by Gabilife claims to be a company in India. It raises the question of what are the possible recourse options to make them stop selling the shirt. If they have a presence in the United States, whoever owns the copyright could go after Gabilife for infringement as if they were a US-based company.

  Gabilife’s terms state “Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent.” I searched the agent list on the US Copyright website and I didn’t see a listing for Gabilife or Gabi. That makes me wonder if they just copied someone else’s terms and conditions without registering an agent.

  If owned the copyright for the original badge art, I’d register the copyright in the artwork immediately. A copyright holder maximizes their options for recourse if they register their copyright within 3 months of publication or 1 month of learning of the infringement, whichever happens first. If this art hasn’t been registered, that window could still be open.

  If the work was registered in time, I’d sue them for copyright infringement if it was a US company. If the company doesn’t do business in the US, there’s probably no point to suing them. If suing them would be pointless, I’d either send a DMCA takedown notice to the email address listed on their site and to their snail mail address. If I wanted to be really bold, I would send them a licensing agreement and a bill that states that they agreed to the licensing agreement by using the artwork without permission.

  I wouldn’t expect them to pay me, but it would be validating.

  So what is the take away message?

  1. Register your copyrights shortly after creating an original work, especially when you’re as awesome as Marty.
  2. If you suspect someone is ripping off your work, contact a copyright attorney in your community (like me!) to help you strategize and execute your response.

  Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
  Please visit my homepage for more information about Carter Law Firm.

   

  June 21, 2012

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  Ruth Carter

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  Geek Law, Intellectual Property

  Carter Law Firm, Copyright, Copyright infringement, copyright law, copyright registration, DMCA takedown notice, Fair Use, intellectual property, Internet Law, Marty Freetage, Phoenix Comicon 2012, register copyright, Ruth Carter

• When Can Someone Post Photos Of You Online?

  

  I’ve had a few people ask me about the legalities of posting pictures of other people online. I thought I’d tackle the most common issue with photographs – whether you have a reasonable expectation of privacy. I’m not going to get into commercializing a person’s image or misrepresenting a person. I’m only addressing whether someone can post a picture that they took of you on their Facebook page, blog, Flickr, etc.

  

  Pictures of You in Public
  You have no expectation of privacy in anything you do in public. This includes where you go and what you do while you’re there. For example, I just got an adorable basset hound named Rosie. We take walks every day. I have no expectation of privacy regarding where we walk, what I’m wearing when I walk her, or how I react when she pulls on the leash. That’s all in plain view for everyone to see. Anyone can take a picture of us and post it online, preferably with a caption that says, “Sassy lady and her awesome dog,” and there’s nothing I can do about it (as long as they’re not misrepresenting me or commercializing my image without my consent).

  If you’re in a public place and someone snaps a picture of you while you’re falling down drunk, getting arrested, picking your nose, scowling at a crying baby, or not wearing pants, there’s probably nothing you can do if that picture shows up online somewhere.

  The exception to this rule is you have an expectation of privacy in places like public bathroom stalls, changing rooms, tanning salons, and doctor’s offices that may require you to be partially or completely undressed.

  Pictures of You in Private Venues
  When pictures are taken of you at a private event or in someone’s private home, you have to ask whether you had an expectation of privacy in each particular situation. If you attend a party where there are no rules regarding photos and everyone has their cameras out, you have no expectation of privacy if someone takes a photo of you and puts it in their online album.

  Some events come with ground rules regarding photos that could create an expectation of privacy. I had a friend in college who had a Decorate Your Nipples theme party where everyone had to decorate their chest. Some people put decorations on their shirts and some people opted to decorate their skin. The rule for that party was that no cameras were allowed except during the designated picture time. At picture time, all the photos were limited to one room. If you didn’t want any photographic documentation of your being at that party, you had to go to the no-camera room.

  There may be activities where there are no specified rules about photographs, but where the nature of the event or activity gives you an expectation of privacy. For example, if you and your partner make a sex tape or take intimate pictures of each other, there’s an inherent expectation that no one beside you two would see them. If you break up, your partner can’t post the pictures online and protect themselves by saying that you never agreed to keep them private.

  When it comes to the question, “Can I post pictures of other people online?,” the answer is always, “It depends.” My general rule of thumb is “Don’t do anything in public that you wouldn’t put on the front page of the paper.” When it comes to photographs, the same rule generally applies because you might end up in a situation where you had an expectation of privacy but someone posted a picture of you online that they shouldn’t have. You might have a case against the jerk who posed it, but you still have to deal with the possibility that a lot of people saw a photo of you that they should have never seen.

  If you want more information about the legal rules regarding social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. I also maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested. You can also contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

  May 3, 2012

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  Ruth Carter

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  Cyberbullying & Cyberharassment, Intellectual Property, Legalities of Blogging, Photography & the Law

  Blogging, Carter Law Firm, expectation of privacy, Facebook, Facebook photo privacy, Flickr, Internet Law, internet privacy, Invasion of Privacy, legalities of blogging, post pictures online, Ruth Carter

• Ruth Carter’s Speaking Schedule – May 2012

  

  May is going to be an exciting month for me because I have four speaking engagements in Phoenix! I’m really excited to get out and talk about intellectual property and social media law. I like to keep my talks casual, interactive, and provide useful information to the audience.  I hope you’ll come out and have fun with me. Here’s where you can find me . . .

  Trademark Basics
  Wednesday, May 9, 2012 – 6pm
  Midweek Mind Tweak – Co+Hoots
  This is an interactive discussion about what a trademark is, the strength of attendees’ trademarks, and the benefit of registering your trademark with the U.S. Patent and Trademark Office.

  Why You Need a Social Media Policy
  Wednesday, May 16, 2012 – 5pm
  Midweek Mind Tweak – Co+Hoots
  Every company needs a social media policy for their employees, but if you create one that is too broad, you might have to pay over $10,000 for violating the National Labor Relations Act. It’s a problem that is easy to fix, if you know what the law is.

  The Legalities of Blogging
  Wednesday, May 23, 2012 – 12pm
  GP Brownbag – Gangplank Chandler
  A spoke a few weeks ago at Gangplank Academy about the legal side of blogging, and they asked me back to present a condensed version as a brownbag discussion. I’ll be presenting the 8 questions you should ask yourself before you publish a blog post.

  Adapting Licensed Properties to Comics
  Thursday, May 24, 2012 – 7pm
  Phoenix Comicon – Phoenix Convention Center
  I’m so excited to speak at Phoenix Comicon. The thought fills my little geek heart with joy. I’m going to be talking with sci-fi and comic book fans about copyright issues related to creating fan fiction, fan art, and slash fiction. It’s going to be so much fun!

  I hope I get to see you at one or all of my talks!

  April 30, 2012

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  Ruth Carter

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  Employment Law, Intellectual Property, Legalities of Blogging

  Blogging, Carter Law Firm, Co+Hoots, Copyright, copyright law, Copyright lawyer, Fair Use, Gangplank, Internet Law, Internet lawyer, legalities of blogging, National Labor Relations Board, NLRA, Phoenix, Phoenix Comicon, Ruth Carter, Social media policy, trademark law basics

• Call Your Representative to Oppose CISPA

  

  The U.S. House of Representatives could be voting this Friday on the Cyber Intelligence Sharing and Protection Act (CISPA). It’s important that you call your representatives today and let them know that you oppose CISPA, and they should too.

  CISPA is the government’s latest attempt to invade our privacy. They say the law’s purpose is to prevent and counteract cyberattacks. This law will let private companies and the government ignore every privacy law and share your personal information. All they need to have is a “good faith” belief that they’re doing it for cybersecurity purposes, which sounds like they’re allowed to manipulate the way they describe a situation  to manufacture a good faith belief.

  The proposed law has had a few amendments aimed at protecting our civil liberties, but I’m not convinced. The amendments will still let agencies like the National Security Agency have “unfettered access to information about Americans’ internet activities and allow those agencies to use that information for virtually any purpose.”

  

  The Electronic Frontier Foundation has a great resource that gives you your representative’s phone number and a script you can use when you call them to urge them to vote against CISPA. I called my representative, Ben Quayle, and I was shocked to learn that he’s a co-sponsor of the bill. I told his office that he should stay out of my computer (and my vagina for that matter).

  Here’s your to-do list:

  • Use EFF’s website to call your representative and tell them to oppose CISPA
  • Sign up for the EFF’s email list to stay informed about future legislation that affects your privacy and civil liberties
  • Like the Stop CISPA page on Facebook
  • Tell everyone you know to call their representative oppose CISPA too

  The government will always try to overstep the limits and invade our privacy. It’s our job, as the people who hired them, to keep them in check and tell them what to do.

  April 26, 2012

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  Ruth Carter

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  News

  Ben Quayle, CISPA, Cyber Intelligence Sharing and Protection Act, cyber security, Electronic Frontier Foundation, Internet Law, Internet privacy laws, Invasion of Privacy, Ruth Carter

• 8 Questions to Ask Before Posting a Blog

  

  I taught a class this week at Gangplank, an awesome collaborative co-working space in Chandler, on some of the legalities of blogging. It was part of Gangplank Academy. As I was going through my notes in preparation of this class, it occurred to me that there are some critical questions every blogger should ask themselves before publishing a new blog post.

  1. Is all the information in your blog verifiable?

  2. Is every statement that isn’t verifiable indisputable?
  Statements like “My knee hurts like it’s going to rain tomorrow” and “My favorite color is blue” may not be verifiable, but there’s no one who can say those statements aren’t true.

  3. Do you accuse anyone of committing a crime?
  It’s one thing to say, “My neighbor gives me the creeps,” but you might get sued if you say, “In my opinion, my neighbor’s a pedophile.”

  4. Are you sharing any information that you learned in confidence?
  When you break up with your partner, don’t write a blog post sharing all the personal information you learned during the relationship like their weird fetishes and habits.

  5. Are any of your statements misrepresentations or half-truths?

  6. Do any of your statements insinuate anything that isn’t true?
  If you write a blog about how you don’t like seeing drug users in the park and you include a photo of a person lying in the grass with their eyes closed, they may be unhappy and sue you if they’re not a drug user but were only taking a nap.

  7. Is all your information public? Are you writing about a topic where your subject might have an expectation of privacy?
  Your neighbor has no expectation of privacy in how he looks naked if you saw him at a public nude beach. He does if you had to creep up to his house and peer through the cracks in his closed blinds to see him.

  8. Is all your information from reputable sources?
  If you copy or repeat someone’s defamatory statement, even if you didn’t know it was false, you might get sued for defamation.

  I love bloggers who push the envelope and sometimes it’s hard to know when you’re crossing the line. When in doubt, consult a lawyer who is a media expert and always follow my rule: “Never put anything online that you wouldn’t put on the front page of the newspaper.”

  March 29, 2012

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  Ruth Carter

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  Geek Law, Legalities of Blogging

  Blogging, Defamation, defamation lawyer, Gangplank, Gangplank Academy, Gangplank Chandler, internet defamation, internet defamation lawyer, Internet Law, Internet lawyer, internet libel, Invasion of Privacy, invasion of privacy lawyers, legalities of blogging, online defamation, Ruth Carter

• Courts Split on Shield Laws

  

  There is an ongoing debate in the state courts about whether bloggers can be protected by the “shield laws.” These are the laws that state that a reporter does not have to reveal the identity of an anonymous news source. The purpose of these laws is to encourage the dissemination of information.

  Shield laws are enacted at the state level and are in place in 40 of the 50 States, including Arizona. If you’re a blogger who is sued and you want to use a shield law to protect your source, you usually have to rely on the shield law in the state where you’re being sued, which is not necessarily the state where you live.

  So far, the courts in California and New Hampshire ruled that bloggers are protected by their States’ shield laws and the courts in Oregon and Illinois ruled that bloggers are not protected by their States’ shield laws. The verbiage for each State’s shield law is different, and some laws may be worded so narrowly that a court could fairly say that the law cannot apply to bloggers. It is interesting to note that the judge in the Illinois case ruled that bloggers aren’t protected by the shield laws in Illinois or California, and this ruling came down after a California court held that bloggers are protected by the California shield law. We’ll see if the blogger in the Illinois case appeals that ruling.

  In general, if you are a blogger who engages in the same activities as a journalist, then you should be protected by the shield laws the same as a journalist. If a person knew of insider trading at a Fortune 500 Company and he gave interviews to the Wall Street Journal and a blogger with a verbal agreement that the writers would not reveal the source of the information, why should a shield law protect the writer from the Wall Street Journal and not the blogger just because the blogger self-publishes?

  The courts should not make blanket judgments about whether all bloggers are protected by a shield law. Instead they should make a case-by-case analysis to see if a particular qualifies for protection. Many of the shield laws require regular publication. Based on that requirement, a blogger who only publishes sporadically may not be protected by a shield law.

  Arizona has a shield law that states: “A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.” I could see a blogger arguing that their blog is reportorial work. The challenge would be convincing a judge or jury that the law should extend to electronic publications, and not just newspapers, TV, and radio.

  A court may accept an argument that you’ve made a commitment to protect the anonymity of your sources. There was a case in Maryland in 2009 where a judge did not force a website to reveal the identities of anonymous commenters unless the plaintiff provided evidence to support its claims first. If you have a policy on your blog that states you’ll protect contributors’ anonymity, a court consider that in deciding whether you have to disclose your information source.

  The debate over whether bloggers qualify as journalists is not going away anytime soon, and since this is a state law issue, we may remain in this situation where some states protect bloggers under the shield law and others do not. Given that bloggers are accessible everywhere, this issue is likely to get more complicated in the future.

  February 2, 2012

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  Ruth Carter

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  Legalities of Blogging

  Arizona, Blogging, California, Illinois, Internet Law, law, New Hampshire, Oregon, Ruth Carter, Shield Law

• Bloggers Beware: Lessons from the Crystal Cox Case

  

  This post was originally published on The Undeniable Ruth in December 2011. 

  Many of us got into blogging because we like having a proverbial soapbox we can jump on to share our thoughts with the universe. The recent Crystal Cox case has made me wonder how many bloggers know the legal risk they take when they share their views.

  For those of you who missed it, Crystal Cox is an “investigative blogger” in Montana who writes a blog called Bankruptcy Corruption. In one of her posts, she called Kevin Padrick, an attorney in Oregon, “a thug, a thief, and a liar.” Padrick sued Cox for defamation and won . . . $2.5 million!

  The interesting thing for bloggers to note is that Cox lives and writes in Montana but she was sued in Oregon and Oregon law applied to the case.

  If you write about other people, you open yourself up to the possibility of being sued for defamation or invasion of privacy. These cases are generally based on state laws. The good news is that there isn’t much variation between the laws. The bad news is that there are exceptions.

  The really bad news is that the person who claims to have been injured by your blog gets to sue you in the state where they were injured, which is usually their home state. And it’s their home state law that applies. So, if you’re a blogger in Mississippi, and you write about someone in Alaska, and they sue you for defamation, you have to go to Alaska to defend yourself and hire an attorney who can defend you in Alaska. (Another lesson from the Crystal Cox case: don’t be your own attorney!)

  Let’s look at the shield law, one of the laws Cox tried to use to defend herself. This is the law journalists invoke to prevent a court from forcing them to reveal an information source. There isn’t one national shield law. There are 40 different state shield laws, and some states don’t have a shield law. Cox tried to use the shield law to defend herself; and in another state, her argument may have held water. But unfortunately for her, the Oregon shield law specifically states that you can’t use the law as a defense in a civil defamation case.

  Another challenge surrounding the legalities of blogging is that sometimes the laws are old, really old, as in the-internet-wasn’t-invented-when-the-law-was-written old. In a lot of these cases, the court has to decide how the laws apply to these new situations didn’t exist before we had the internet. You and the other side can propose your interpretation of the law, but there’s no guarantee that the court will accept your interpretation. And you might get really lucky and get a judge who barely knows how to turn on their computer and has no concept of what a blog is.

  Someday the laws will be updated to account for the internet and blogging practices. Even when that happens, we will still have to be conscientious of the fact that each state has its own laws, and that we run the risk of being sued in any of the 50 states depending on who and what we write about.

  January 25, 2012

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  Ruth Carter

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  Geek Law, Legalities of Blogging

  Blogging, Crystal Cox, Defamation, Internet Law, Invasion of Privacy, law, Personal Jurisdiction, Ruth Carter, Shield Law