•Sex, Lies... And a Dumb Mistake Your Blog Website Can't Afford
Copyright © 2009 Chip Cooper
Does your website incorporate a blog, forum, or listserv -- where users may post text or files? If so, are you liable if your users post defamatory materials about someone else?
In 1996, Section 230 of the Communications Decency Act (Section 230) came to the rescue of "interactive computer services" by overruling prior case law that would hold websites liable. But Section 230 is not bullet-proof. Interactive websites may still be liable as the May, 2009, Ninth...
•Is Your SaaS Agreement The Only Website Legal Document You Need?
? Copyright © 2009 Chip Cooper
I'm often asked questions about SaaS (Software as a Service) agreements. What I have to prompt SaaS webmasters to ask is - "Is my SaaS agreement the only website legal document I need?"
To most Saas site webmasters, the answer may be surprising.
What Is a SaaS Agreement?
A SaaS Agreement is a customer agreement, and for this reason, it's usually the focal point for webmasters of SaaS websites. However, they're rarely called a "customer agreement" or even a...
•SaaS And Ecommerce Sites - Don't Miss the May 1, 2009 Deadline
Copyright © 2009 Chip Cooper
On March 20, 2009, the Federal Trade Commission (FTC) published its latest guidelines for the Red Flags Rule entitled "Fighting Fraud with Red Flags Rule: A How-To Guide for Business". These guidelines significantly broadened the scope of the applicability of the Red Flags Rule.
Many SaaS and ecommerce websites may now be surprised to learn that they are covered by the Red Flags Rule - and as a result they may face substantial liability for failure to comply.
If...
•SaaS And Ecommerce Businesses -- Are You Liable For Failure To Bind Your Service Providers?
? Copyright 2009 Chiup Cooper
If you've been following legal developments on the Web in the last couple of years, you know that there is significant concern regarding privacy and data security. This concern is driven by consumers' fears over identity theft.
The Life Is Good Case - 5 Data Security Safeguards
In a well-known case filed against Lifeisgood.com, the Federal Trade Commission (FTC) announced in a press release dated January 17, 2008, that Life Is Good agreed to implement the...
•Ecommerce Websites -- 3 Tips To Avoid Liability For Actions of Your Online Resellers
Copyright 2009 Chip Cooper
Recent case law confirms once again: if online agreements are presented properly to end-users, they're legally enforceable.
This continuing trend is good news for websites that contract with registered users though SaaS Agreements, Membership Agreements, Subscription Agreements, Terms of Sale, Content License Agreements, and the like.
Why? Among other things, this means that important legal disclaimers and limitations of liability are legally enforceable.
But...
•3 Tips For Your General Audience Site To Avoid Tripping The COPPA Trap
Copyright 2009 Chip Cooper
If you think that the Children's Online Privacy Protection Act (COPPA) applies only to websites that target children under 13, you're uninformed. Sony found out the hard way, and as a result Sony has agreed to pay a $1 million fine in settlement of a case brought by the Federal Trade Commission (FTC). You can avoid falling into this trap with your general audience site if you follow 3 simple tips.
COPPA or COPA?
In January, 2009, the US Supreme Court refused to...
•Your Privacy Policy: Plan Ahead Or Your Opt-In and Customer Lists May Be In Jeopardy
Copyright © 2009 Chip Cooper
I talk to clients all the time about not falling into the trap of believing that their privacy policy is really nothing but a lot of fluff, filled with vague, self-serving statements such as "we respect your privacy".
It's actually way more than that; it's viewed as an enforceable contract by the Federal Trade Commission (FTC), and as such it may be construed against you and subject you to substantial liability.
It's critical that you plan ahead... anticipate...
•Use of a Competitor's Mark In Keyword-Triggered Ads - Legal Summary As We Begin 2009
Copyright © 2009 Chip Cooper
In the last four years or so, cases involving keyword-triggered ads have been hotly litigated. As we begin 2009, it's a good time to look back to see if the law has settled a bit.
The stakes regarding keyword-triggered ads are high-both for trademark owners and their competitors alike, and also for search engines. Companies spend significant sums on Internet advertising -- sums that routinely surpass even optimistic projections.
Google Modifies Keyword Policy in...
•2009 Resolution -- Give Your Site a 10-Point Legal Check-Up
It's early in the year, and it's time to fulfill your resolution to give your site a quick legal check-up.
Online businesses are now highly regulated, and there's substantial liability if you site's not legally compliant. In addition, your customers are becoming more Internet savvy, and a site that's not legally compliant is not going to be trusted.
So, let's get started.
Use This Checklist If You Already Have The Basic Site Documents In Place
1. Copyright Notice. Check Your Copyright...
•"Red Flag" Identity Theft Alert -- Is Your Site In The Cross Hairs?
? In October 2008, the Federal Trade Commission (FTC) announced that it is delaying enforcement of the Red Flag rules six months to May 1, 2009.
The reason for the delay is uncertainty over who is covered. Just who is covered (and therefore liable for failure to comply) is still somewhat confusing. However, if you're not sure you're covered, particularly if you're a SaaS site, you'd better check out the rules carefully in order to avoid liability for failure to comply.
What Are The Red Flag...
•Website Copy: Beware of Unintended Warranties If You Write Your Own Product Descriptions
If you're like most small ecommerce businesses, you'll write your own product/service descriptions. In doing so, you will encounter a legal pitfall unknown to most... you may be creating unintended warranties that could result in substantial liability.
How can this be? How can you unwittingly create a warranty for which you will be held legally liable?
Uniform Commercial Code Warranties
The Uniform Commercial Code (UCC) is a collection of state laws that are relatively "uniform" from state...
•Website Terms of Use: Are Yours Enforceable? Does It Matter?
Website Terms of Use: Are Yours Enforceable? Does It Matter? Clients frequently ask me, "click-wrapped", "browse-wrapped" -- what do these terms mean? Are they the typical legal mumbo jumbo?
Your Customer Agreement (often called a Subscription Agreement, Membership Agreement, or SaaS Agreement) is a so-called "click-wrapped" agreement because your customer indicates agreement by clicking on an I AGREE button. For this reason, click-wrapped agreements are usually legally enforceable...
•Your Privacy Policy: Can It Improve Your Conversion Rates? You Bet!
Your Privacy Policy: Can It Improve Your Conversion Rates? You Bet! I've always been a stickler for advising my clients to comply with applicable laws regarding the posting, maintenance, and amendment of their privacy policies and related regulations regarding data security. The reason... because there's substantial exposure to liability if you don't.
Recently, however, I've been advising clients to do these things for another reason -- to improve their conversion rates. That's right!...
•The Computer Fraud And Abuse Act -- Effective Weapon Against Disloyal Employees?
? Employers have typically used several legal theories in actions against disloyal former employees -- copyright infringement for copying copyrighted code, trade secret misappropriation where the employee misuses or discloses confidential information or trade secrets, and possibly breach on a non-competition covenant.
Now, there's another theory derived from the federal Computer Fraud And Abuse Act -- a claim based on unauthorized access to the employer's computers or network. Do these claims...
•Shrink, Click, Browse-Wrapped Agreements -- What Does It All Mean?
? The terms -- "shrink-wrapped", "click-wrapped", and "browse-wrapped" -- are in widespread use. They describe certain types of contracts, past and present. Originally, these agreements were used solely for the licensing of PC software. Now, they're used for a wide range of online transactions.
What do these terms mean, and what's their legal significance?
Manifestation of Assent
The key to understanding these terms is understanding a key term in contract law -- "manifestation of assent"....
•Website Behavioral Ads May Be Cool But Beware Of Privacy Concerns
If you're a small ecommerce business, you know that virtually anything that provides significant increases in conversion rates will get a lot of attention.
Behavioral ads promise just that -- higher conversion rates than conventional contextual ads -- so they've been getting a lot of attention lately.
If true, this could be a very good thing for ecommerce sites looking to boost revenues. But the buzz over behavioral ads has also raised the concerns of privacy advocates, and recently even the...
•User Generated Content (UCG) Presents Big Advertising Oppoutunity For Small Online Businesses
User Generated Content (UCG) Presents Big Advertising Oppoutunity For Small Online Businesses User generated content (UGC) is a rapidly growing phenomenon on the Internet. Popular social networking sites that rely on UGC for content include YouTube, MySpace, Facebook, Friendster, just to name a few. Generally, UGC refers to various kinds of media content produced by regular, every-day people (as distinguished from traditional media producers).
But UGC is not just for social networking...
•CAN-SPAM Act Updates -- New Email Rules For Multiple Senders, Opt-Outs, And "Send-To-A-Friend"
Commercial email is one of the most significant -- if not the most significant -- marketing tool of small ecommerce websites.
For this reason, it's a good idea to stay current with the CAN-SPAM Act's email rules. In May, the Federal Trade Commission (FTC) approved several new rules for purposes of clarifying CAN-SPAM's requirements.
Here's an easy-to-read summary of these important developments that affect all ecommerce websites.
Multiple Senders And Email Marketing Campaigns
One issue...
•Website Advertising: 2 Legal Traps To Avoid When Writing Your Own Copy
If you're like most small ecommerce businesses, you're likely to write your own marketing copy. Be aware that this is a highly regulated area that could result in substantial liability. I've boiled most of the regulations into 2 basic traps you must avoid.
What is Marketing Copy?
Wikipedia defines "copy" as written material, in contrast to photographs or other elements of layout, in a large number of contexts, including magazines, advertising, and book publishing. In advertising, web...
•CAN-SPAM: "No Harm, No Foul" -- 4th Circuit Passes on Trivial Violations
The federal CAN-SPAM Act permits the sending of unsolicited email advertisements under certain conditions. One condition is that header information in the email should not be "materially false or materially misleading". What does this mean, and if you make a "technical" mistake in an email header, are you strictly liable under CAN-SPAM?
The Vacation Spammer Case
In November, 2006, the 4th Circuit Court of Appeals commented in the case of Omega World Travel v. Mummagraphics, Inc.(sometimes...
•Intellectual Property: Why "Borrowing" Web Content Is A Really Bad Idea
We've all been there before.
There's some graphics or content (or even website legal documents) on the web that you like... there's no copyright notice associated with it.
You'd like to take it and incorporate it into your site, right?
It's so tempting, but DON'T do it!
Copyright Infringement Issues
Under the US Copyright Act, there is a principle some refer to as the "rule of automatic copyright". This rule provides that once an author or artist:
* creates a work of authorship (text,...
•Ecommerce Sites: Beware of 3rd Party Cookies - Are Google Analytics Users In Privacy Breach?
? To be successful, ecommerce sites require information about site visitors.
What sites are the top referrers? Which search engine produces the most traffic? How long do visitors remain on-site, what is their pathway through the site, and what pages do they exit from?
One method of collecting this information is often referred to as using 3rd party cookies. If you use 3rd party cookies, are you aware of the privacy concerns, and will you be liable for a privacy policy breach?
What's A...
•SaaS, Membership, and Subscription Agreements -- How To Avoid Unenforceable Amendments
If you're like most small ecommerce businesses, you'll need to amend your Customer Agreement from time to time. You might want to add a new membership option... or add a clause for a money-back guarantee, just to name a couple of examples.
Note that your Customer Agreement may go by any one of several names -- such as SaaS Agreement, Membership Agreement, Subscription Agreement, Terms of Sale, Content License Agreement, etc.
Will your amendments be effective? That's the question you should...
•Do You Own - And Control Your Domain Name? You May Be Surprised!
Do You Own - And Control Your Domain Name? You May Be Surprised! All too often, website owners are lax in nailing down ownership and control of valuable domain names, and as a result, are often required to litigate these issues costing them thousands. The case of Dawson v. Brandsberg illustrates these costly mistakes and how to avoid them.
Dawson v. Brandsberg - The Facts
The dispute was between a website operator and developer regarding rights to a domain name that consists of the...
•Email Marketing: Are You Liable For Your Affiliates' CAN-SPAM Violations?
? How you build and use your email list involves the federal CAN-SPAM Act of 2003 (CAN-SPAM). CAN-SPAM applies to essentially all businesses in the United States which send commercial email, which is defined as any email message "the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)".
Nearly any business email is covered by CAN-SPAM, including email newsletters as...
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