Keeping the Trolls at Bay      Effective Legal Strategies for your BusinessDavid Snead                                    ...
Creating your user agreementDealing with “I want to talk to your lawyer”                 requestsWhat you should do BEFORE...
What is important to success?Information gathering• What exactly are you providing?• How much are you providing, and howmu...
What is important to success?Price?                   Expertise?              Support?Service Level            Who is your...
Contracting – Key Contract Terms•   What do words mean•   Preventative Contract Terms•   Enforcement Terms•   Incident Res...
360’ Contract Review                 Vendors                                         Customers•   Term                    ...
360’ Contract ReviewExample: Bandwidth overages   • What does your vendor contract say?   • How have you monitored?   • Wh...
Contracting – Key Contract Terms• Acceptance                  • Actual event• Term                        • Defined       ...
Contracting – Key Contract Terms• Billing disputes                  • Specific provision• Termination                     ...
Contracting – Key Contract Terms• Warranties           • Should you provide no warranties?                       • Underst...
Creating your user agreementDealing with “I want to talk to your lawyer”                 requestsWhat you should do BEFORE...
How to handle“I want to talk to your lawyer”   1. What is the Problem?
How to handle“I want to talk to your lawyer”   1. What is the Problem?   2. Do you need a lawyer to respond?
How to handle“I want to talk to your lawyer”   1. What is the Problem?   2. Do you need a lawyer to respond?   3. Avoid le...
How to handle“I want to talk to your lawyer”   1. What is the Problem?   2. Do you need a lawyer to respond?   3. Avoid le...
How to handle“I want to talk to your lawyer”   1. What is the Problem?   2. Do you need a lawyer to respond?   3. Avoid le...
How to handle“I want to talk to your lawyer”   1. What is the Problem?   2. Do you need a lawyer to respond?   3. Avoid le...
Creating your user agreementDealing with “I want to talk to your lawyer”                 requestsWhat you should do BEFORE...
What you should do BEFORE you get sued?“Anybody can sue anybody for anything. There is nothingthat you can do to prevent t...
What you should do BEFORE you get sued1. Have favorable agreements/contracts in place
What you should do BEFORE you get sued1. Have favorable agreements/contracts in place   a.Read them   b.Understand them   ...
What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy
What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. R...
What you should do BEFORE you get sued1.   Have favorable agreements/contracts in place2.   Develop Litigation Hold policy...
What you should do BEFORE you get sued1.   Have favorable agreements/contracts in place2.   Develop Litigation Hold policy...
What you should do BEFORE you get sued“… LegalZoom is not a law firm and is not a substitute foran attorney or law firm. C...
What you should do BEFORE you get sued1.   Have favorable agreements/contracts in place2.   Develop Litigation Hold policy...
What you should do BEFORE you get sued1.   Have favorable agreements/contracts in place2.   Develop Litigation Hold policy...
What you should do BEFORE you get sued1.   Have favorable agreements/contracts in place2.   Develop Litigation Hold policy...
What you should do BEFORE you get sued1.   Have favorable agreements/contracts in place2.   Develop Litigation Hold policy...
What you should do BEFORE you get sued1.   Have favorable agreements/contracts in place2.   Develop Litigation Hold policy...
Creating your user agreementDealing with “I want to talk to your lawyer”                 requestsWhat you should do BEFORE...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDNAT (Being Sued)    2. AS A PLAINTIFF (Filing Suit)
Strategies For Dealing With A Lawsuit    1. AS A DEFENDNAT (Being Sued)        a) Contact your litigation attorney right  ...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDNAT (Being Sued)        a) Contact your litigation attorney right  ...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDNAT (Being Sued)        a) Contact your litigation attorney right  ...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDNAT (Being Sued)        a) Contact your litigation attorney right  ...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDNAT (Being Sued)        a) Contact your litigation attorney right  ...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDNAT (Being Sued)        a) Contact your litigation attorney right  ...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDANT (Being Sued)        a) Contact your litigation attorney right  ...
Strategies For Dealing With A Lawsuit    1. AS A DEFENDANT (Being Sued)    2. AS A PLAINTIFF (Filing Suit)
Strategies For Dealing With A Lawsuit    2. AS A PLAINTIFF (Bringing Suit)        a) Contact your litigation attorney as e...
Strategies For Dealing With A Lawsuit    2. AS A PLAINTIFF (Bringing Suit)        a) Contact your litigation attorney as e...
Strategies For Dealing With A Lawsuit    2. AS A PLAINTIFF (Bringing Suit)        a) Contact your litigation attorney as e...
Strategies For Dealing With A Lawsuit    2. AS A PLAINTIFF (Bringing Suit)        a) Contact your litigation attorney as e...
Strategies For Dealing With A Lawsuit    2. AS A PLAINTIFF (Bringing Suit)        a) Contact your litigation attorney as e...
Strategies For Dealing With A Lawsuit    2. AS A PLAINTIFF (Bringing Suit)        a) Contact your litigation attorney as e...
Creating your user agreementDealing with “I want to talk to your lawyer”                 requestsWhat you should do BEFORE...
Cease and Desist Letter   It July 16, 2011 to our attention that your web site       has come      Dear Sir   contents loc...
Overall strategyDMCA        •   Register            •   Draft policy (OCILLA)            •   Post contact information     ...
Overall strategyNasty customers                  • Based on contracts                                 • Determine procedur...
Questions?David Snead                                       Jeffrey A. CohenAttorney + Counselor               Internet Bu...
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Keeping the Trolls at Bay: Effective Legal Strategies for your Business

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Many hosting companies are concerned about the time, effort and complexity involved in getting their legal house in order. Significant misconceptions about litigation, contracts and abuse often keep these businesses from taking even basic steps to protect their businesses. In this session experienced technology lawyers, David Snead and Jeff Gordon, will help companies learn how to create and structure their business in a way to minimize legal costs and enhance the value of their company.

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Keeping the Trolls at Bay: Effective Legal Strategies for your Business

  1. 1. Keeping the Trolls at Bay Effective Legal Strategies for your BusinessDavid Snead Jeffrey A. CohenAttorney + Counselor Internet Business Law AttorneyW. David Snead, P.C. Partner, COHEN & RICHARDSON, PC CEO, InternetLitigators
  2. 2. Creating your user agreementDealing with “I want to talk to your lawyer” requestsWhat you should do BEFORE you get suedStrategies for dealing with your first lawsuit Dealing with abuse issues
  3. 3. What is important to success?Information gathering• What exactly are you providing?• How much are you providing, and howmuch are your vendors providing?• How will you be compensated?• Do you need a lawyer?• What are your “hot button issues?”• How will you handle abuse?
  4. 4. What is important to success?Price? Expertise? Support?Service Level Who is your customer? Technical Fit?Agreement (SLA)?Cultural Fit? Measurability? Flexibility?Where are you selling? Who is the end user? In-House Capabilities?Current Corporate Time to Market? Strategic Advantage?Focus?
  5. 5. Contracting – Key Contract Terms• What do words mean• Preventative Contract Terms• Enforcement Terms• Incident Response Contract Terms• Risk of Loss Contract Terms• Warranties• Indemnities• Flow down• Product specific
  6. 6. 360’ Contract Review Vendors Customers• Term • Can you provide service during term?• Warranties • Carefully consider warranties• Intellectual property protection • IP is your most important asset• Fees • Can vendor raise fees?• Flow down provisions • Create integrated contract• Assignability • Keep in mind your exit Terms of Service SLA AUP Privacy Policy DMCA / IP SPAM Resources Customer Info
  7. 7. 360’ Contract ReviewExample: Bandwidth overages • What does your vendor contract say? • How have you monitored? • What do your termination provisions say? • Are you required to give a refund? • What liability do you have to your customer’s customers?
  8. 8. Contracting – Key Contract Terms• Acceptance • Actual event• Term • Defined • Controlled • Foreseeable• Early Termination • Minimum commitments • Penalties. Defined.• Price • Costs and increases spelled out
  9. 9. Contracting – Key Contract Terms• Billing disputes • Specific provision• Termination • Failure to pay • Certain events / notice • Violation of terms / AUP• Limitation of liability • Realistic figure • Understand consequences
  10. 10. Contracting – Key Contract Terms• Warranties • Should you provide no warranties? • Understand “make mutual” requests• Security • Differences between hosting types • Possible legislation • Define breach• Privacy • Contract provision • Flow through issues • European customers
  11. 11. Creating your user agreementDealing with “I want to talk to your lawyer” requestsWhat you should do BEFORE you get suedStrategies for dealing with your first lawsuit Dealing with abuse issues
  12. 12. How to handle“I want to talk to your lawyer” 1. What is the Problem?
  13. 13. How to handle“I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond?
  14. 14. How to handle“I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises.
  15. 15. How to handle“I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises. 4. Do you need this customer or not?
  16. 16. How to handle“I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises. 4. Do you need this customer or not? 5. Collect relevant documents, emails and names.
  17. 17. How to handle“I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises. 4. Do you need this customer or not? 5. Collect relevant documents, emails and names. 6. Best approach… (hard/soft)
  18. 18. Creating your user agreementDealing with “I want to talk to your lawyer” requestsWhat you should do BEFORE you get suedStrategies for dealing with your first lawsuit Dealing with abuse issues
  19. 19. What you should do BEFORE you get sued?“Anybody can sue anybody for anything. There is nothingthat you can do to prevent that. The questions are: 1) Howwell are you prepared to defend yourself and 2) Ultimatelywhat will be the outcome and cost.” Jeffrey A. Cohen ~ InternetLitigators
  20. 20. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place
  21. 21. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place a.Read them b.Understand them c.Know them d.Use them
  22. 22. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy
  23. 23. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation
  24. 24. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation4. What to do with email/backup
  25. 25. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation4. What to do with email/backup5. How to choose counsel
  26. 26. What you should do BEFORE you get sued“… LegalZoom is not a law firm and is not a substitute foran attorney or law firm. Communications between you andLegalZoom are protected by our Privacy Policy, but are notprotected by the attorney-client privilege or work productdoctrine. LegalZoom cannot provide legal advice and canonly provide self-help services at your specific direction…” ~ LegalZoom Home Page - 2011
  27. 27. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation4. What to do with email/backup5. How to choose counsel
  28. 28. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation4. What to do with email/backup5. How to choose counsel6. Insurance
  29. 29. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation4. What to do with email/backup5. How to choose counsel6. Insurance7. Investigation
  30. 30. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation4. What to do with email/backup5. How to choose counsel6. Insurance7. Investigation8. Offers of settlement
  31. 31. What you should do BEFORE you get sued1. Have favorable agreements/contracts in place2. Develop Litigation Hold policy3. Records preservation4. What to do with email/backup5. How to choose counsel6. Insurance7. Investigation8. Offers of settlement9. Should you sue first?
  32. 32. Creating your user agreementDealing with “I want to talk to your lawyer” requestsWhat you should do BEFORE you get suedStrategies for dealing with your first lawsuit Dealing with abuse issues
  33. 33. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) 2. AS A PLAINTIFF (Filing Suit)
  34. 34. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away
  35. 35. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction
  36. 36. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy
  37. 37. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications
  38. 38. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications d) Notify your insurance company
  39. 39. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications d) Notify your insurance company e) Begin collecting/segregating relevant docs/email
  40. 40. Strategies For Dealing With A Lawsuit 1. AS A DEFENDANT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications d) Notify your insurance company e) Begin collecting/segregating relevant docs/email f) Start thinking about possible “business solution”
  41. 41. Strategies For Dealing With A Lawsuit 1. AS A DEFENDANT (Being Sued) 2. AS A PLAINTIFF (Filing Suit)
  42. 42. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible.
  43. 43. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant
  44. 44. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email
  45. 45. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email d) Determine Jurisdiction, Statute of Limitations, Amount in Controversy
  46. 46. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email d) Determine Jurisdiction, Statute of Limitations, Amount in Controversy e) Adjust your expectations
  47. 47. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email d) Determine Jurisdiction, Statute of Limitations, Amount in Controversy e) Adjust your expectations f) Consider alternatives to Litigation
  48. 48. Creating your user agreementDealing with “I want to talk to your lawyer” requestsWhat you should do BEFORE you get suedStrategies for dealing with your first lawsuit Dealing with abuse issues
  49. 49. Cease and Desist Letter It July 16, 2011 to our attention that your web site has come Dear Sir contents located the proprietor(s) of all copyright in a web content/ personal I am representing at example.com is publishing to Name’s copyrighted presentations work originated by [Name]. It has come to our correspondence/public Work and personal information including email, home address and phone number. publishing to Name’s attention that your web site contents located at example.com is copyrighted Work and personal information including email, home address and phone number. Permission was neither asked nor granted to reproduce The Work and the content terms of an injunction against the continued infringement, as well an In entitled to the Copyright Statutes, Name is entitled to as ttherefore constitutes infringement of Name’s rights. In terms of the Copyright Statutes, injunction against the continued infringement, as well as Name is o recover damages from the infringing conduct. to recover damages from the infringing conduct. Further the site forum administrator and associated parties have engaged in conductThis of distributing harassingthis criminal harassment about Name and her family. They that and libellous materials which harmful and is to inform of organized conduct is seriouslyresulted in endangering the have taken parthave life and the welfare of a minor.of criminal threats of bodily seriously harmful resulted in the receipt This is to inform that this conduct is harmto Namehave resulted in the receipt of criminal threats of bodily harm to Name family. and family. We demand that We assist us immediately This is written without prejudice to you demand that you assist us immediately This Name’s rights, all of which are hereby expressly reserved. I am attaching below the is written without prejudice to Name’s rights, location of the copyrighted work. all of which are hereby expressly reserved. I am attaching below the location of the copyrighted work.
  50. 50. Overall strategyDMCA • Register • Draft policy (OCILLA) • Post contact information • Check complaintTrademark • Draft policy • Determine procedure up front • Understand differences between trademark and copyright • Look for trademark complaints in DMCA clothingOther IP • Draft policy • Determine procedure up front • Determine whether CDA applies • Look for IP complaints in DMCA clothing
  51. 51. Overall strategyNasty customers • Based on contracts • Determine procedure up front • Don’t rely on disclaimer of liabilitySubpoenas and Warrants • Review, Verify, Schedule, Comply • Relationship with law enforcementNasty grams • Sniff test works best • Base analysis on facts • A letter from a lawyer isn’t scarier • Don’t rely on disclaimer of liability
  52. 52. Questions?David Snead Jeffrey A. CohenAttorney + Counselor Internet Business Law AttorneyW. David Snead, P.C. Partner, COHEN & RICHARDSON, PC CEO, InternetLitigatorsdavid.snead@dsnead.comTwitter: wdsneadpc Jcohen@corichlaw.comBlog: TheWHIR (310) 469-9600 News | Blog | Articles | Member Services InternetLitigators.com

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