- What is Copyright?
- What is Trademark or Servicemark?
- What is Domain Name?
- What is E-commerce?
- What is Internet Defamation?
- What is Cyber Law?
- What is Internet Marketing?
- What is Unauthorized Access & Hacking?
- What are Website Terms & Conditions?
- What is Fair Use?
- What is a “Wrap” Agreement?
- What is an E-Signature?
- What is a Digital Signature?
- What is Crowdfunding?
- What is Cloud Computing?
- What is Search Engine Optimization?
Copyright is a form of protection provided by the laws of the United States (Title 17, United States Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability.
One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled "Basic Facts about Trademarks".
A domain name is the address of a web site that is intended to be easily identifiable and easy to remember, such as atrizadeh.com, copyright.gov or uspto.gov. These user-friendly addresses for websites help connect computers - and people - on the Internet. Because they are easy to remember and use, domain names have become business identifiers and, increasingly, even trademarks themselves, such as amazon.com. By using existing trademarks for domain names - sony.com, for example - businesses attract potential customers to their websites. (See www.wipo.int).
Domain name disputes arise largely from the practice of cybersquatting, which involves the pre-emptive registration of trademarks by third parties as domain names. Cybersquatters exploit the first-come, first-served nature of the domain name registration system to register names of trademarks, famous people or businesses with which they have no connection. Since registration of domain names is relatively simple and inexpensive - less than $100 in most cases - cybersquatters often register hundreds of such names as domain names.
As the holders of these registrations, cybersquatters often then put the domain names up for auction, or offer them for sale directly to the company or person involved, at prices far beyond the cost of registration. Alternatively, they often keep the registration and use the good name of the person or business associated with that domain name to attract business for their own sites.
Why so many disputes?
There is no agreement within the Internet community that would allow organizations that register domain names to pre-screen the filing of potentially problematic names. The reasons vary, ranging from allowing easy registrations to stimulate business, to the practical difficulties involved in determining who holds the rights to a name, to the principle of freedom of expression. Furthermore, the increasing business value of domain names on the Internet has led to more cybersquatting, which results in more disputes and litigation between the cybersquatters and the businesses or individuals whose names have been registered in bad faith.
For more information please visit the World Intellectual Property Organization (WIPO) website at http://www.wipo.int/.
E-commerce is described in the American Heritage Dictionary, as “Commerce that is transacted electronically, as over the Internet.” Simply put, e-commerce is the online transaction of business, featuring linked computer systems of the vendor, host, and buyer. Electronic transactions involve the transfer of ownership or rights to use a good or service. Most people are familiar with business-to-consumer electronic business (B2C). Common illustrations include Amazon.com, llbean.com, CompUSA.com, travelocity.com, and hotels.com.
E-commerce can be divided into:
- E-tailing or "virtual storefronts" on Web sites with online catalogs, sometimes gathered into a "virtual mall"
- The gathering and use of demographic data through Web contacts
- Electronic Data Interchange (EDI), the business-to-business exchange of data e-mail and fax and their use as media for reaching prospects and established customers (for example, with newsletters)
- Business-to-business buying and selling (B2B)
Disputes are inevitable in the course of the life of a business, whether online or offline. The business disputes which the enterprise may encounter include the following:
A) Contractual disputes
- Disputes between the enterprise and the Internet Service Provider (ISP) or web-hosting services provider, including disagreements over interruptions in service, breach in data security etc.
- Business-to-business (B2B) disputes between the enterprise and its suppliers such as non-performance of contractual obligations, misrepresentations, and complaints from customers regarding services provided by suppliers.
B) Non-contractual disputes
These are the common kinds of non-contractual disputes that may arise in an online enterprise.
- Copyright - The enterprise might be liable for copyright infringement if it uses copyrighted material in excess of fair use, and without permission.
- Data protection - The enterprise may be liable for sharing or revealing confidential data on customers, as discussed in the segment on Privacy.
- Right of free expression - The enterprise may be subject to defamation suits for defamatory material posted online.
- Competition law, Domain name disputes - The enterprise may be subject to trademark infringement suits if it infringes a registered or otherwise legally recognized trademark. If the enterprise has registered a domain name which corresponds to a registered or common law trademark, it may be subject to a complaint under ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP), or the U.S. federal Anti-cybersquatting Consumer Protection Act.
Sites Where Dissatisfied Consumers May Report Internet Fraud
- United States Federal Trade Commission (FTC) at www.ftc.gov for international e-commerce disputes. Consumers from any jurisdiction may file complaints involving fraud and similar activities involving online transactions with foreign companies.
- United States Securities and Exchange Commission (SEC) at www.sec.gov.
See "Internet Fraud: How to Avoid Internet Investment Scams" (October 1998) at http://www.sec.gov/consumer/cyberfr.htm.
An online complaint form is provided for online securities fraud. Go to http://www.sec.gov/investor/pubs/cyberfraud/tellus.htm
- National Fraud Information Center, Internet Fraud Watch of the National Consumers League. A U.S. nationwide toll-free hotline for advice on telephone solicitations and how to report telemarketing fraud. The Internet Fraud Watch section provides tips and information on how to avoid fraud, protect privacy, and surf the Internet safely at http://www.fraud.org
Defamation is statement that harms the reputation of someone else. Internet Defamation is an online statement that harms the reputation of someone else (e.g., statement made in an email, on a blog, through chatting or other online communication system).
Courts have to balance the reputation of one person with the free speech rights of the other. Statements have to be repeated to at least another third person and must have caused damage. There are two forms of defamation: Libel and Slander.
Libel involves the publishing of a falsehood that harms someone. Slander is the same doctrine applied to the spoken word. Collectively, they are referred to as defamation. Both fall under the jurisdiction of individual states, which usually require the falsehood to be intentional.
Definition of libel in California:
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
Slander is a false and unprivileged publication that is orally uttered. See below
Statutes: California Civil Code Sections 45, 45a and 46 define defamation as follows:
Section 45. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
Section 45a. A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.
Section 46. Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
(1) Charges any person with crime, or with having been indicted, convicted, or punished for crime;
(2)Imputes in him the present existence of an infectious, contagious, or loathsome disease;
(3) Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
(4) Imputes to him impotence or a want of chastity; or 5. Which, by natural consequence, causes actual damage.
Section 47. A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, "physical evidence" means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
(d) (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued. (2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following: (A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct. (B) Breaches a court order. (C) Violates any requirement of confidentiality imposed by law.
(e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.
Finding Anonymous Message Posters
Most people will not know who is posting the anonymous messages. The Law Office of Salar Atrizadeh knows how to find out that information. We can file the complaint even before knowing the name of the defendant, and then use the court's subpoena powers to get the information we need. The Statute of Limitation for defamation is just one year, so it is important to file the complaint before the deadline, even if the identity of the perpetrator is still unknown.
Cyber law is a term that encapsulates the legal issues related to use of communicative, transactional, and distributive aspects of networked information devices and technologies. It is less a distinct field of law in the way that property or contract are, as it is a domain covering many areas of law and regulation. Some leading topics include intellectual property, privacy, freedom of expression, and jurisdiction.
Our firm's expertise and accomplishments in these fields include:
- Preparing royalty agreements for companies engaged in online training to establish the standards by which online content providers can assure ownership, distribution rights, copyrights, and trademark and copyrights to content.
- Negotiating strategic marketing agreements with America Online for the provision of online impressions and cooperative cross-marketing of goods and services over the Internet and the parties' Web sites. This agreement addressed Internet-specific issues such as the creation, maintenance and ownership of Web site content, hyperlinks, Web site aesthetics and functionality; online advertising issues such as quantity, quality and placement of online impressions; brand names; consumer privacy; government regulation, and standard financial and legal terms and conditions.
- Working with website developers, Internet service providers, and entrepreneurs so to obtain and protect domain names and website content.
- Providing information about recently enacted Domain Name Dispute Policies and the Rules adopted by the World Intellectual Property Organization ("WIPO") for the implementation and enforcement of policies.
- Providing information as to the Anti-cybersquatting Consumer Protection Act (“ACPA”). ACPA is also known as the Trademark Cyberpiracy Prevention Act and is codified under Title 15 U.S.C. § 1125(d). It relates to trademark infringement and Lanham Act violations.
- Preparing Website disclaimers and "click-wrap" licenses to assist clients to protect their intellectual property and avoid costly disputes.
Internet marketing also referred to as i-marketing, web marketing, online marketing, or e-Marketing, is the marketing of products or services over the Internet. The Internet has brought media to a global audience. The interactive nature of Internet marketing in terms of providing instant response and eliciting responses is a unique quality of the medium. Internet marketing is sometimes considered to have a broader scope because it not only refers to the Internet, e-mail, and wireless media, but it includes management of digital customer data and electronic customer relationship management (ECRM) systems. (See http://en.wikipedia.org/wiki/Internet_marketing).
Internet marketing ties together creative and technical aspects of the Internet, including: design, development, advertising, and sales.
Internet marketing also refers to the placement of media along different stages of the customer engagement cycle through search engine marketing (SEM), search engine optimization (SEO), banner ads on specific websites, e-mail marketing, and Web 2.0 strategies.
Disputes may arise as to any of the above-referenced services and products. Our law firm is designed to protect you against foreseeable disputes and events. We have experience with disputes regarding the World Wide Web, E-commerce, and other technologies.
Hackers continuously break into computers and damage or steal information. Our law firm has a substantial amount of knowledge and experience in identifying and pursuing the responsible person or parties for hacking, theft of data, cyber-trespassing, and unauthorized access to computers and networks. Whether it is your competition, a previous employee or data thief, my legal team has the specialty to assist you in these matters.
There is also a federal statute which prohibits hacking and unauthorized access. The federal Computer Fraud and Abuse Act (the "CFAA") is set under Title 18 U.S.C. Section 1030 (See http://www.law.cornell.edu/uscode/18/1030.html).
It is a criminal statute that also allows for private lawsuits upon violations. If someone has compromised the security of your system, or if you are accused of unauthorized access, you need to be aware of this law.
Every time you enter a website there are certain terms and conditions accompanied with its usage. Terms and conditions regarding ownership, website use, age/responsibility, account access, privacy, warranties, limitations on liability etc. Usually, the website owner or webmaster includes a link that displays certain terms and conditions associated with usage such as disclaimers, agreements, terms, and prohibitions.
It is important for a person or entity to understand and comply with the terms and conditions as long as they are within the general standards of the Internet and associated state or federal rules and guidelines.
If you have questions about your legal rights and duties, my law firm can be of assistance. Moreover, if you or your company is involved in a legal dispute that arises from website terms and/or conditions, my law firm can assist in its resolution.
Also, please see our online blog on this website or by accessing http://internetlawyerblog.com where we provide our readers with related and updated information.
Fair use is a way of using a protected intellectual property without having to pay or seek permission from its owner. This can apply to trademarks or copyrights, with different requirements. Trademarks, for example, may be used nominatively (e.g., comparative advertising) and determining fair use may include factors such as the likelihood of confusion.
For copyrighted material, fair use is determined by balancing the purpose of the work (e.g., commercial or non-commercial), nature of the copyrighted work, economic impact of the new work, and amount of the protected work taken by the third party. Ultimately, this latter example of fair use tends to be complicated and difficult to predict without proper legal analysis.
Wrap agreements, like clickwraps and browsewraps, both derive their origins from “shrinkwrap” agreements, where opening the shrink-wrapped product qualified as agreeing to the enclosed terms. However, these agreements rely on digital actions, either by continued use, or progression to a certain area on the website in browsewraps, or by clicking on a checkbox in case of clickwraps.
Electronic signatures, or e-Signatures, are signatures for contracts you may execute on the web in order to indicate assent to a contract. This may be accomplished by using a check box or requiring an individual to type his/her name.
Digital signatures are more complex e-signatures, relying on a form of encryption to ensure that the individual signing the contract is indeed that individual. It does so by creating two “encrypted keys,” one for the individual signing, and another for all other individuals.
Crowdfunding is a way of obtaining funds from other individuals, without going through accredited investors. This can be achieved through equity crowdfunding or non-equity crowdfunding.
Equity crowdfunding is a new form of crowdfunding approved by the JOBS Act. It allows an entity to sell equity (e.g., corporate shares) to others. The JOBS Act then would allow unaccredited investors with lower income to invest a small percentage of their income in private companies. It also caps funding at one million dollars per year.
Non-equity crowdfunding is a form of crowdfunding where no equity in a company is given, but instead there are gifts or other non-monetary rewards for funding. This is commonly seen on Kickstarter or IndieGoGo.
Cloud computing makes use of remote servers for processing and storage needs that individuals or companies may have as opposed to using local servers. The advantages of using cloud computing, include, data protection from local hardware failures, lower costs for data storage and management, and the ability to access files from anywhere.
There are few disadvantages associated with cloud computing, such as, limits on bandwidth which can be problematic when using the cloud for video and audio. The security of any data stored in these remote servers is in the hands of the service provider, which poses a major concern because sensitive information is unlawfully accessed more frequently these days.
Search engine optimization (a/k/a “SEO”) refers to a process where websites are made easier to find and ranked higher in various search engines. This marketing strategy makes use of information on how people use search engines, website coding, and a number of other things to increase a website’s visibility without paying for improved rankings.