Essentials Of Cyberspace Law Cal Bar Cyberspace Commt

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California Bar Cyberspace Committee presentation on the essentials of cyberspace law focusing on user generated content, privacy and online advertising. President by Committee Co-Chair Bennet Kelley, Vice Chair Robert Hawn and Committee member Nicole Ozer.

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Essentials Of Cyberspace Law Cal Bar Cyberspace Commt

  1. 1. Business Law Essentials Series Essentials of Cyberspace Law User Generated Content, Privacy, and Advertising California Bar Cyberspace Committee January 27, 2010
  2. 2. A Presentation of the Cyberspace Law Committee Essentials of Business Law Series January 27, 2010
  3. 3. Where Used Websites SaaS Services Skype Delivery Research Other Social Networking
  4. 4. Legal Issues Enforceability Modification Provisions
  5. 5. Enforceability Best Practices Notice is Key Require Consent “I agree” buttons Required scrolling Does Use Indicate Consent?
  6. 6. Enforceability Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) (lack of notice vitiates consent) Register.com Inc. v. Verio Inc. 126 F.Supp.2d 238 (S.D.N.Y. 2000), aff’d 356 F.3d 393 (2nd Cir. 2004) (post-download notice on (post- repeated downloads constitutes notice) Southwest Airlines Co. v. BoardFirst LLC (N.D. Tex 2007) (home page legend provides sufficient notice for binding contract) Ticketmaster LLC v. RMG Techs. Inc. (C.D. Cal. 2007) (in preliminary injunction matter, terms of use enforceable where court believed that defendants would be shown to have been notified of and assented to terms)
  7. 7. Modification Douglas v. U.S. District Court for the Central District of California 495 F.3d 1062 (9th Cir. 2007) (customer was not bound to revised contract terms because the customer had not received notice of, or assented to, the changes) Harris v. Blockbuster Inc. 622 F. Supp. 2d 396 (N.D. Tex 2009) (unlimited unilateral ability to modify or terminate renders contract illusory, citing Morrison v. Amway Corp. 517 F.3d 248 (5th Cir. 2008) and distinguishing In re Halliburton 80 S.W.3d 566 (Tex. 2002)
  8. 8. Modification Notice is Key Best Practices Establish Modification Right Initially and Clearly Highlight all Material Changes Collect and Retain Evidence of Assent Create An Opportunity for Rejections Use Common Sense
  9. 9. Provisions Contract Language Situational General Entire Agreement Privacy Policies (A.V. v. iParadigms 544F.Supp.2d 473 (E.D. Va. 2008)(browse wrap terms unenforceable when not incorporated into click through license) Modification Process Social Networking Specific Provisions Copyright Infringement Notices (DMCA) Content Limitations Redistribution Rights Indemnification Right to Remove Posting and Terminate Account
  10. 10. ALI Principles ALI Principles of the Law of Software Contracts, May 19, 2009 Modification requires consents after notice of the modification and termination requires reasonable notice Disclaimable implied IP infringement indemnification obligation Nondisclaimable warranty of no hidden material defects
  11. 11. ECPA and the Impact of Outdated Privacy Law Essentials of Cyberspace Law January 27, 2010 Nicole A. Ozer Technology and Civil Liberties Policy Director ACLU of Northern California www.aclunc.org/tech nozer@aclunc.org
  12. 12. The 4th Amendment clearly protects your data… • At home or on a device in your possession – Judicial search warrant (probable cause) – Notice at time of search • BUT much weaker if in another’s hands – Couch (accountant) – Miller (bank) – Smith (telephone company)
  13. 13. Congress tried in ECPA (1986) For the person or business whose records are involved, the privacy or proprietary interest in that information should not change. Nevertheless, because it is subject to control by a third party computer operator, the information may be subject to no constitutional privacy protection . Thus, the information may be open to possible wrongful use and public disclosure by law enforcement authorities as well as unauthorized private parties. - Senate Judiciary Committee (1986)
  14. 14. Federal communications privacy laws • Wiretap Act or “Title III” (part of ECPA) – interception = getting content of communications in real time (in transit) • Pen register and trap-and-trace statute – addressing data of communications in real time • Stored Communications Act (SCA) (also ECPA) – access to stored communications, records of communications, subscriber data
  15. 15. Always complex and getting worse • “famous (if not infamous) for its lack of clarity” – Steve Jackson Games v. U.S. Secret Service (5th Cir. 1994) • “fraught with trip wires” – Forsyth v. Barr (5th Cir. 1994) • “a fog of inclusions and exclusions” – Briggs v. American Air Filter (5th Cir. 1980)
  16. 16. Just a few things have changed since 1986: Cloud computing 2006: Google docs launched Rise of social networking 2004: Facebook launched Internet search 1998: Google founded 1994: Yahoo & Amazon founded The beginning of everything 1990: World Wide Web created Cell phones … VOiP … Online book search …
  17. 17. ECPA challenges today • It’s confusing and outdated – ECPA defines service providers in language that does not make sense in today’s technological world. – Different levels of protection can apply to the same piece of communication over it’s lifetime. – It clearly applies to public providers, like hotmail. But what about a nonpublic provider like a university? • New technologies are left behind – It’s not clear if or how it applies to modern digital services, like cloud computing, social networking, or Internet search history.
  18. 18. Lifecycle of an email Unopened < 180 days Warrant > 180 days Opened Subpoena or 2703(d) with notice Header info Subpoena Basic subscriber or 2703(d) info (name, address, NO notice req’d connection records, etc)
  19. 19. That’s confusing. And email was one of the specific technologies that existed in 1986 and that ECPA was intended to protect. What about newer services that didn’t exist in 1986? How does ECPA protect them?
  20. 20. Search Location-based services Cloud Computing
  21. 21. A campaign to educate and activate the public, businesses, and policy makers to upgrade privacy laws and keep pace with our modern online world.
  22. 22. Updates… www.aclunc.org/tech www.aclunc.org/techblog www.dotRights.org nozer@aclunc.org
  23. 23. 24
  24. 24. 25
  25. 25. 26
  26. 26. TM Use Limited to Search Term 27
  27. 27. TM Use Limited to Search Term 28 J.G. Wentworth SSC Ltd v. Settlement Funding LLC, 2007 WL 30115 (E.D. Pa. Jan. 4, 2007) (granting motion to dismiss).
  28. 28. TM Use Limited to Search Term 29 Morningware, Inc. v. Hearthware Home Products, Inc., 2009 WL 3878251 (N.D. Ill. Nov. 16, 2009)
  29. 29. 30
  30. 30. Initial Interest Confusion 31 Use of another trademark “in a manner calculated to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion.” Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999). B Tal
  31. 31. Rationale 32 • Improperly Benefits From Goodwill of Trademark • False Detour From Information Super-highway – Analogy to false detour sign directing consumers to take wrong exit. “Unable to locate West Coast, but seeing the Blockbuster store right by the highway entrance, they may simply rent there.” Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1062 (9th Cir. 1999). • Bait and Switch – “Initial interest confusion can be viewed as a variation on the practice of ‘bait and switch.’” 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 23:26 (4th ed. 2003).
  32. 32. Initial Interest Confusion Territory 33
  33. 33. Counterpoint 34 Not a Detour, Merely a Lane Change Web surfers are accustomed to false starts and are unlikely to be dissuaded when they end up at the wrong site. Chatam Int'l v. Bodum, Inc., 157 F.Supp.2d 549, 559 (E.D. PA 2001). No different than supermarket placing products. store brand next to branded products FragranceNet.com, Inc. v. FragranceX.com, 493 F. Supp. 2d)(E.D.N.Y 2007) Legally Significant Confusion? “The [District] court’s refusal to enter the ‘initial interest confusion’ thicket is well taken given the unlikelihood of ‘legally significant’ confusion.” Hasbro Inc. v. Clue Computing, Inc., 232 F.3d 1, 2 (1st Cir. 2000).
  34. 34. 35
  35. 35. Cyber Squatting Remedies 36 ICANN’s Uniform Domain Name Dispute Resolution Policy Establishes arbitration process for bad faith domain registration 2329 cases filed in 2008 Only remedy is transfer of domain Anti-Cyber Squatting Consumer Protection Act (15 U.S.C. § 1125(d)) Lanham Act remedies for bad faith registration of domain name
  36. 36. 37
  37. 37. Dealing with Gripe Sites 38 Trademark Claims Absent commercial use no TM violation or cyber squatting Copyright Fair use defense Defamation First Amendment and SLAPP protection Third-Party postings Website immune under Communications Decency Act
  38. 38. Dealing with Gripe Sites 39 Trademark Claims Absent commercial use no TM violation or cyber squatting Copyright Fair use defense Defamation First Amendment and SLAPP protection Third-Party postings Website immune under Communications Decency Act
  39. 39. 40
  40. 40. CAN-SPAM Act of 2003 41 CAN- CAN-SPAM IS . . . CAN- CAN-SPAM DOES NOT . . . anti- An anti-fraud and disclosure “Can Spam” – except for statute wireless spam Applies to an email where Include a “Do Not Email the “primary purpose” is Registry” commercial advertisement or promotion of a product or service Impose an “ADV” labeling requirement Non profits are not exempt No volume requirement Create a general private right of action
  41. 41. CAN-SPAM Principal Requirements 42 From line must identify initiator Subject line must not be deceptive. Adult Messages must provide notice. UCE must be identified as “advertisement” Requires Working Opt-Out Mechanism for Advertiser Postal Address for Advertiser
  42. 42. CAN-SPAM Plaintiffs 43 FTC State AGs Internet Access Service Provider (IASP) Adversely Effected by Violation Cannot be faux-IASP No Consumer Private Right of Action
  43. 43. Preemption of State Law 44 CAN- CAN-SPAM PREEMPTS ALL STATE REGULATION OF EMAIL EXCEPT STATE LAWS: Regulating falsity or deception in email Not specific to email, including State trespass, contract, or tort law; or Other State laws to the extent that those laws relate to acts of fraud or computer crime
  44. 44. 45
  45. 45. FTC Disclosure Guidelines 46
  46. 46. The Offer 47 * *Earnings Disclaimer - Your level of success in attaining the results claimed in our materials depends on the time you devote to the program, ideas and techniques mentioned, your finances, knowledge and various skills. *By submitting this form you request that your account be activated and give your authorization to immediately charge your credit card $2.98 for access to the Business Kit for Google. After the 7 day trial you will be billed $89.90 each month for continued access to the Business Kit for Google. Your Business Kit access will continue each month until revoked by you. You may cancel at anytime by writing to 230 West 400 South, Suite 100 Salt Lake City, UT 84101 or calling 1-800-497-4988 or International customers please call 00-1- 646-205-0230
  47. 47. Landing Page 48
  48. 48. Transaction Page 49 ALSO NO REFERENCE TO CHARGE ON FIRST PAGE
  49. 49. Transaction Page (con’t) 50
  50. 50. FTC Complaint 51 FTC v. Infusion Media, Inc., Civil Action No. 09-CV-01112 (D. Nev. 2009)
  51. 51. FTC Advertising Guidelines 52 Advertising Dot Com Comparative Advertising Disclosures: Information Statement of Policy Regarding About Online Advertising Comparative Advertising [PDF] Deception FTC Policy Statement Advertising and Marketing on on Deception the Internet: The Rules of the Road Deceptive Pricing FTC Guides Frequently Asked Advertising Against Deceptive Pricing Questions: A Guide for Small Business Dietary Supplements Dietary Joint FTC/FCC guides on Long Supplements: An Advertising Distance Advertising [PDF] Guide for Industry Advertising Substantiation FTC Staff Comment on Draft FTC Policy Statement Report of the Commission on Regarding Advertising Dietary Supplement Labels Substantiation FTC Staff Comment on FDA Bait Advertising FTC Guides Proposed Rule on Statements Against Bait Advertising Made for Dietary Supplements
  52. 52. FTC Advertising Guidelines (con’t) 53 Endorsements and Testimonials Food Advertising Enforcement FTC Guide Concerning the Use Policy Statement on Food of Endorsements and Advertising Testimonials Jewelry Guides for the Jewelry, Precious Metals, and Pewter Environment FTC Guides for the Industries Use of Environmental Market Claims (Green Guides) Unfairness FTC Policy Statement on Unfairness Eye- Eye-Care Surgery FDA/FTC Joint Letter on PRK Vocational and Distance Education Schools Guides for Private FTC Staff Guides on Refractive Vocational and Distance Education Eye Surgery Schools [PDF] Use of the Word "Free" FTC Weight- Weight-Loss Products Red Flag: Guide Concerning the Use of Bogus Weight Loss Claims Web Site the Word "Free" Red Flag: Bogus Weight Loss Claims Brochure
  53. 53. About the Internet Law Center 54 The Internet Law Center is dedicated to helping businesses navigate the evolving legal standards for today’s digital economy, while also contributing to the development of the policies of tomorrow. The firm serves a diverse client base that includes startups and public companies both online and offline across North America and Asia. The professionals of the Internet Law Center possess years of practical experience as lawyers and entrepreneurs with internet companies and have played a leading role in shaping Internet law and policy. This unprecedented combination of business, legal and policy experience makes the Internet Law Center uniquely qualified to provide the professional advice needed to address emerging issues of internet law in an uncertain economy. Sign up for the Cyber Report – our award winning newsletter which was named one of the Top 100 Internet Law Resources. It is also available on our blog (along with other materials) at www.ilccyberreport.wordpress.com. .
  54. 54. About Bennet Kelley 55 Bennet is one of the nation’s leading Internet attorneys and founder of the Internet Law Center. He is Co-Chair of the California Bar Cyberspace Committee and a frequent speaker on the latest developments in Internet law at conferences throughout North America. Bennet also is a regular guest on Webmaster Radio’s “InBoxed”. Bennet has played a leading role in shaping Internet law and policy having testified and lobbied on Internet issues in Washington and Sacramento, winning praise from a key Congressional committee for his contributions to federal spyware legislation. In addition, the Internet Law Center’s newsletter, Cyber Report, was named one of the top 100 Internet law resources and recognized by the LA Press Club.
  55. 55. 56 Contact Bennet Kelley Internet Law Center 100 Wilshire Blvd, Suite 950, Santa Monica, CA 90401 (310) 452-0401 bkelley@internetlawcenter.net www.internetlawcenter.net Twitter: InternetLawCent / SlideShare: InternetLawCenter
  56. 56. Business Law Essentials Series Essentials of Cyberspace Law User Generated Content, Privacy, and Advertising California Bar Cyberspace Committee January 27, 2010

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