Dozier Internet Law, by John W. Dozier

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Dozier Internet Law Federal Court Report, by John W. Dozier

September 04, 2008

At Dozier Internet Law we monitor the Federal Courts everyday and once a month prepare summaries of the most important and interesting lawsuits filed. You can imagine the number of lawsuits I personally go through each month. It's enlightening to see what the trends and latest and greatest theories of recovery are in the Federal Court.

You can get the complete lawsuit off of the Pacer system. But, we do not provide copies of the lawsuits to third parties. At Dozier Internet Law we'll give you a heads up, and I spend a lot of time each month authoring the Dozier Internet Law Federal Court Report. One day all of the state courts will be online and we'll be able to add the lawsuits filed around the country in the state court systems to our report.

The Ronald J. Riley lawsuit will be available online shortly.

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Ronald J. Riley and Inventored.org Sued, by John W. Dozier

September 05, 2008

Dozier Internet Law has filed a lawsuit in the Circuit Court of the County of Henrico, Virginia against Ronald J. Riley and a total of eleven of his businesses and fictitious names. In response to recent legal action by this law firm against Riley, he is attempting to convince the blogosphere that this lawsuit is an attack on his free speech rights. Just the opposite is true. Ronald J. Riley's misconduct includes his attacking bloggers and blog and forum moderators with threats of getting IP addresses of anonymous bloggers and then tracking them down. Ronald J. Riley is not at all what he seems to be.

The Dozier Internet Law lawsuit resulted from a year long investigation of Ronald J. Riley and took us from interviews with Harvard Law School to Nobel Prize Winners. The discoveries about Mr. Riley along the way are troubling, and as he attempts to continue his attacks on his critics, a well rounded understanding of who Mr. Riley is and how he operates will be profoundly revealing and educational.

Update: The Dozier Internet Law lawsuit is available online now. You may also be interested in the blogosphere's take on Ronald J. Riley and news coverage of Ronald J. Riley from the hometown of the Nobel Prize Winner referenced in the lawsuit.

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$400,000 Judgment For Using Competitor Name, by John W. Dozier

September 18, 2008

Dozier Internet Law often deals with situations in which a competitor is using another competitor's name, and while this area of law is clearly evolving, the Courts are beginning to understand the nuances associated with the power of this practice for SEO purposes, and reacting appropriately.

An excellent court decision crossed my desk about the August 28, 2008 First Circuit Court of Appeals opinion confirming a judgment for over $400,000 against a small business. The "offense"? Trademark infringement. In particular, the defendant used a competitor's name in its "metatags", and in the content of the site in white lettering with a white background, obviously for SEO purposes. And that is all that was proven. Both the US District Court that awarded the judgment and the First Circuit agreed that both uses infringed on the plaintiff's trademarks.

My guess is that the defendant took the advice of some of the commentators you see online and I suspect, given the other facts of how the case was handled, assumed the Court would conclude there was no trademark infringement. The end result was a judgment for all of the net profits of the Defendant's entire business for the last three and a half years, which was $230,339, plus attorney fees of $188,583, and to add insult to injury, another $7,500 in costs.

Eric Goldman blogs about how "wrong" this decision is. He claims that "metatags don't matter from a technology perspective", citing to his own blog post in which he claims, well..."metatags don't matter". Dozier Internet Law and the Courts, on the other hand, know they do. But this case was also about using a competitor's name in the content, something Goldman missed, I guess.

First, metatag descriptions are used by Google and Yahoo and most search engines. Metatag keywords are used by meta search engines, and other search engines. Anyone with even a passing understanding of search engine optimization would understand that Goldman's off base here and he really does not seem to grasp how SEO and the algorithms of search engines function.

Now, with respect to using competing trademarks in your content, the search engines use those terms to decide when to return a result. So, if someone is searching for Sears, and Walmart repeatedly, and with search engine optimization principles in mind, uses the Sears name on a page of its site, Walmart will come up in the search results when someone is looking for Sears. And thus the problem. If Walmart uses the Sears trademark in the coded title of the page, in an HTML header, repeats it three times, and uses anchored hypertext links with the name to mislead the search engines into believing that a Walmart page is a Sears page, then it becomes more and more apparent what is going on, and the Walmart result will move higher in searches seeking "Sears". There are many other SEO techniques surrounding the Sears name that could be employed, which I won't discuss here. Suffice it to say that the Courts, both the US District Court and Circuit Court, got it right.

By the way, I use Sears and Walmart as an example only. I don't know of any information that suggests either one of these companies is doing this...for what should be obvious reasons to everyone who REALLY understands the law and business of the web.

Obvious, according to the Court decision, even to the Defendant in this case...the Courts found that the defendant "admittedly took these actions because he had heard that Venture's marks would attract people using internet search engines to the McGills website."

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Dozier Internet Law v. Ronald J. Riley, et. al., by John W. Dozier

September 27, 2008

Well, at Dozier Internet Law, enough is enough. Anyone who knows Ronald J. Riley seems to know about his "antics" online. And from the response we have received from what seems to be all corners of the country, a lot of people are very upset with Riley. Businesses and people want us to represent them and sue Riley on a broad range of claims. The allegations against Ronald J. Riley continue to evolve. Just check out comments about Ronald J. Riley on Techdirt . The Dozier Internet Law lawsuit is here: Ronald J. Riley lawsuit.

Since we decided to move forward with a lawsuit exposing what we believe is an extensive pattern of misconduct, Ronald J. Riley has been working hard to try and get us. Let's follow what he has been doing:

1) His webhost pulled his sites down for violations of terms of use. Riley countered by buying "sucks" domain names of the webhost. From what I understand, he threatened to sue the webhost.

2) His second webhost terminated his account. He then moved his sites to a third webhost as of today. I suspect he will also be terminated by this webhost very soon. Perhaps the hosts simply don't want to risk being tied up in litigation and risk potential "aiding and abetting", "conspiracy", and "contributory trademark infringement" claims as defendants and witnesses in the pending and future litigation and investigations, but my guess is that they just don't like what Riley has been doing, either.

3) Riley went out and "bumped" forum posts and blogs he has published critical of our firm, mostly on free speech sites that disagree with our ongoing efforts to encourage the proper policing of the web, and posted "spam" comments, which is the same cut and paste craziness he has been using for many months, obviously trying to get his negative attacks presented as results on the first page of Google results when someone searches "Dozier Internet Law".

4) Riley opened a number of blogs and tried using our name in posting his canned spam comment critical of our firm. Just as quickly as he was opening these and launching the blogs, the blog owners like Google (blogspot) and others were unilaterally terminating his accounts for what they considered terms of use violations.

5) Riley opened up forum subjects on "fraud" websites trying to make this lawsuit look like a free speech issue and exhorting the masses to assist him by launching "sucks" sites against our firm and specific attorneys within our firm. It looks like someone took him up on it for a day or so, and then probably figured out the truth about Riley and promptly pulled it down before we even found it. No one else has taken him up on it, and most of the websites have removed his posts.

6) Ronald J. Riley appears to have taken at least one old article from the web and posted it in a forum as if the article was brand new, under the apparent guise of a submission from the true author, in an effort to once again get what he clearly perceives as "negative" search results showing. The site promptly pulled the article and forum posting down.

7) Riley has been trying mightily to "rally" the free speech expansionists and Dozier Internet Law has seen some rather childish efforts by a very few commentators to defend Riley. In fact, the Ronald J. Riley Techdirt.com article referenced above was begun as a defense of Riley, but commentators from all over the web used it as a forum to lay out in details the alleged widespread misconduct of Ronald J. Riley.

8) There is a Ronald J. Riley Blog that lays out in detail allegations against Riley, and the owner of the blog claims that Riley copied the blog, placed it on his own server on his own site, and is trying to get Google to see both as "duplicate content" and "sandbox" the blog far down in search results so people won't see it when researching Riley. Now the owner is claiming that someone has hacked into his site and embedded an html code in his site code that prevents search engines from indexing it.

9) Riley is using other Search Engine Optimization techniques to attempt to increase the popularity of his negative posts in the hopes of getting these to be displayed more prominently.

10) Within a couple days of the Dozier Internet Law lawsuit being filed, we saw a post on about Ronald J. Riley on techdirt.com defending Riley, and the blogosphere quickly claimed, with some pretty strong evidence, that it was from Riley using an alias. The response? New and more aggressive rounds of criticism of Riley, even by some who had the knee-jerk reaction to initially defend Riley.

Now I am hearing, although I have no way of confirming this right now, that Riley was asked to leave the membership of the Young Inventor's Group, which is a nationwide group for children to submit their inventions for acceptance, publication and awards...because he was stealing their inventions. Ronald J. Riley stealing kids' inventions? I find that a bit hard to believe, even for a fellow like Riley. I did get a link to the court decision about the lawsuit that Riley's daughter's teacher filed against him after he launched a site attacking her. Interesting read.

I guess Riley thinks that he can carry on as he always has and hide behind some perceived blanket of protections. But reality is otherwise. And if he thinks we don't know what he is doing, how he is doing it, and how to deal with him, then he is mistaken, clouded in his limited wisdom and judgment by his misperception of reality.

The fact is that there is a small percentage of scofflaws out there on the web creating problems for the blogosphere as a whole. And the blogosphere understands that unless it "self-regulates", we will all be subject to formalized government and legal regulatory mandates that will be much more burdensome and create far more numerous and serious problems than exist in a self regulated environment. So, the blogosphere is policing Ronald J. Riley. Good for the blogosphere and the online industry!

[admin]

US Senate Passes Pro-IP Bill, by John W. Dozier

September 29, 2008

At Dozier Internet Law, we represent a lot of businesses in protecting their intellectual property. On the other hand, we represent a lot of businesses accused of intellectual property infringement and theft. So unlike the IP owner special interest groups, which are always going to support stronger IP laws, and the "public interest" groups, which are always going to oppose stronger IP law enforcement, we don't have a preconceived agenda to push, except to try and encourage smart and thoughtful legislation and enforcement decisions.

There is always a balancing act to legislating, of course. In my lobbying days in the 1980s and 90s, I was always impressed by state and congressional legislators' willingness to listen to objective and fair advice. But keep in mind that this bill is being pushed by both sides, Republicans and Democrats, with the support of the RIAA and business concerns, and the support of the AFL-CIO and labor concerns. So, that is a formidable combination unlikely to be defeated.

That being said, the bill, which is headed to the President for his signature, is pretty broad and potentially expands beyond reason the parties and penalties subject to the US Intellectual Property laws. There is going to have to be a lot of prosecutorial restraint exercised to avoid very unpleasant and cataclismic unwarranted and unjustified damage to businesses involved in E-commerce. Dozier Internet Law will give a more detailed review of the law once the President signs it. But vesting greater power in prosecutors to pursue IP theft/infringement and seize associated assets is not a good practice. Because, unfortunately, the "greater power" gives the prosecutor far greater discretion. And it seems to me, from what we are seeing, that broader prosecutorial discretion in complex IP and IT cases is a recipe for disaster.

I cannot forget our ISP client being sued for spam and ending up in bankruptcy, even though they were likely not liable. I cannot ignore the "mistake" made by the Connecticut state police in getting the IP address of our client wrong, raiding his house, seizing his work computers, and then dropping all charges without as much as an apology. I still recall the the FBI raiding our business client's two offices for "hacking"...falsely reported to them by a competitor, or the Utah police taking out criminal charges for what was obviously a "standard fare" civil intellectual property dispute, or a pending prosecution for posting something on Craigslist that is blatantly unconstitutional on its face. Being pro-business does not always mean being biased or prejudiced, or even inclined, towards the protection and prosecution of IP. We handle matters on both sides. But it does mean supporting smart, well conceived, understandable, and fair laws and the attendant prosecution of those laws.

And that is the problem with discretion. Government can put a business out of business using their own "judgment" and "expertise". Just look at last week's seizure by Kentucky of the domain names of alleged gambling sites under the guise that the domain names are an instrumentality of illegal gambling without notice to anyone! This is a complex issue. Litigate first, then obtain the remedy second. But don't go out and shut down businesses because you think you have an argument that you might be right. That is the problem with prosecutorial discretion in a subject matter that mixes technology and the business of the web with unclear laws.

How did we get here? Well, the RIAA tactics of suing first and asking questions second, according to public interest groups, is savage and merciless, they say. The public interest groups are likewise pretty aggressive in explaining how to get rid of evidence of true illegality, representing scofflaws for free, and dishing out legal guidance that is just plain wrong, but gives the "mobsophere" a false sense of security that leads to more brazen misconduct.

Self policing and self regulation did not work. Public interest groups like Public Citizen, Electronic Frontier Foundation, the ACLU and the like did not use appropriate restraint and reasoned judgment, but instead fostered IP problems by fighting for the rights of the "maligned", but really just promoting a false sense that stealing the IP of others is quite alright.

Now we have Congress over-reacting, as so often happens. The pendulum has now swung too far off center. It is caused, indeed, by the inability of the public interest groups to see the bigger picture. And it is not good for the public, it is not good for web businesses, and it is not good for the online world as a whole. And just watch how many stay legislators decide that this type of law would be good for their state. It is only going to get uglier for everybody.

One day, Congress and state legislatures may realize they went too far, and the pendulum will swing back. Let's hope next time it swings back to the middle with a fair and balanced solution. And the RIAA and the IP owners will likely be to blame if that happens for having been too aggressive in their enforcement efforts. My gut tells me, however, that the business interests and IP owners (RIAA included) may know a good thing when they see it, use very measured self-restraint, and ride this law for a long, long time.

The public interest groups could learn a thing or two about self-restraint and good judgment if that happens.

Update: The public interest blogosphere is full of claims that the President will veto this bill. Unfortunately, the vote passing it out was far in excess of 2/3 in support, which means the bill is "veto proof".

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MySpace Suicide Case Dismissal Coming?, by John W. Dozier

November 21, 2008

We've been involved in quite a few "hacking" and unauthorized computer access cases on both sides of the issue. Several years ago Dozier Internet Law convinced a Judge, after the prosecution had rested, to dismiss a criminal case much like the MySpace suicide case going on in LA right now. We've also used Terms of Use provisions to convince the FBI in a couple of serious cases to abandon its plans for prosecution. In this case, reports indicate the defendant did not set up the account and never read the terms of use. Defense counsel are therefore arguing that the US Attorney cannot prove she accessed the MySpace site without authorization.

This does raise a number of issues...how could she know that she was violating the terms of use if she never read them? Well, there is caselaw to support holding a user of an account responsible for abiding by the Terms of Use of a site even if they were not read. Otherwise, all one would have to do is have a friend open an account and give you the password and you could never be liable for violating the rules. So that argument isn't very convincing. MySpace has its Terms of Use linked on the bottom of pages, so it was available whether you sign up or not. Many sites don't require an independent, conscious acknowledgement by a user of the terms of use and simply link to them on the pages, but most believe they are legally binding. An analogy in the offline world would be the printed language on an unsigned invoice. I've tried that case dozens of times, and the Courts regularly recognize those terms as binding.

Dozier Internet Law was lead counsel in a two week civil trial in which the US District Court (in the 9th Circuit which covers California) found that accessing a site, even when there were no terms of use on the site at all, was unauthorized access. But in that case the party accessing the site had been told not to do so. Now if we look to the equivalent state statutes, they are most often referred to as "computer trespass" laws. And if we think about trespass in the traditional sense, land that is "posted" with "no trespassing" signs is all that is necessary to establish a lack of permission to enter upon the land. Even when the typical defense arises that "I didn't see the sign", and "I entered in between two signs and did not see them", those aren't defenses.

On the other hand, a requirement of proving the elements of "intentional access without authorization" isn't necessarily as clear. The best interpretation, it seems to me, is that the "intentional" requirement relates to the volition involved in the act of accessing a computer, and the "authorization" means affirmative permission to do an act. So, this may be more of an issue of whether the party accessing a computer obtained permission, as opposed to whether that party actually new it did not have permission (didn't read the terms of use). This is clearly new ground being explored.

But here is reality...the prosecutors have reportedly given the party who opened the account and actively participated in some of the mischief complete immunity. My instincts tell me that this will impact the Judge's perception of the legal issues, and given the high burden of proving a criminal offense, this could lead to the conclusion that a jury could not find "beyond a reasonable doubt" a lack of authorization. Case Dismissed! If the Judge really considers the issues, I think the case will go forward, he will allow the defense to put on their case, and let it go to the jury. If the Jury convicts, then the Judge is going to have to make a really hard call on this.

And if there is a dismissal, the decision won't really address the key issue being followed, which is whether you can sign up for a website and then get charged criminally when you violate the terms of use and cause the requisite damages. Also overlooked is the fact that while this prosecution is being brought for an alleged violation of Federal law, there are many states with similar laws on the books (and frankly much easier to prove up).

One thing is for sure. We are a long, long way from defining the law of "computer trespass", no matter how this case comes out.

FINAL COMMENT: It remains clear, though, that this prosecution has never been, as Public Citizen, Electronic Frontier Foundation, and the ACLU types would have you believe, outrageous and unjustified prosecutorial abuse. Trust me that this case is really just standard fare for attorneys who actually deal with these issues on a regular basis. And whatever the decision, First Amendment extremists can rest assured that the Internet will not be disrupted, the foundation of E-Commerce will not collapse, and the sky will not fall. But it doesn't really help a Judge to be offering up "Chicken Little" legal briefs. Try something new-cut him some slack and don't attack him personally in the press and online if he does not agree with your view of the law or the world.

UPDATE (Monday 11/24/08): Prescient? (No, but a good guess!) The motion to dismiss was taken under advisement by the Judge. Judge Wu indicated Monday he might not rule on the dismissal motion until after a jury verdict.

[admin]

MySpace Hacking Case, by John W. Dozier

November 25, 2008

Dozier Internet Law has been involved in many, many civil and criminal hacking cases and legal matters arising under the Computer Fraud and Abuse Act, the statute under which the prosecution of the MySpace Suicide case is proceeding. First, the reaction from the legal blogosphere was to criticize the application of the statute in this case. Now, lawyers purportedly involved in cyberlaw have been commenting about how nobody, in their view, ever anticipated it would be used like this! It is a statute for hackers...those stealing passwords or using other means to act maliciously, they cry!

So, here is my post on this blog from a year and a half ago: Federal Hacking Laws. I point out, of course, exactly what those complaining now see. It is a statute (and states have similar laws) that is much broader than most think. But, I must disagree that no one saw this coming. Dozier Internet Law not only saw it coming, but we have been dealing with the same sort of claims made by private litigants in civil cases and US prosecutors and the FBI in criminal cases for years. And there are Circuit level civil court decisions that have been around for years (I argued one of the more prominent in the 9th Circuit). There is even a criminal prosecution appeal confirmed dealing with the statute in the 9th Circuit. While the Middleton case is distinguishable on its face factually...the principal of applying the statute to prosecute criminally is nothing new. I've tried two criminal cases myself dealing with the issue of unauthorized access under state laws.

So, for all of the late comers to the show, don't sit there and criticize the Judge, the prosecutor, or anyone else. The statute stinks to high heaven. That's reality. Surprised? These "cyberlaw experts" shouldn't be. It makes you wonder what area of law these so called "legal authorities" have been practicing.

Here is what I said a year and a half ago: "There is unauthorized access (similar to trespass) and then there is hacking (similar to assault and battery!). We need to get the legislators to understand the difference between the two, and pass some laws that are reflective of reality. Those that access a competing website by borrowing a roommate's password (like just about all college kids do) to see information thousands of others can see is likely trespassing, but he (sic) is not a hacker. Not by a long shot."

So, it is what it is. The law is on the books, strengthened even more in the post 9/11 Patriot Act, and even if Congress addresses the problem, similar laws now exist in many states subjecting those who violate a terms of use to criminal prosecution and civil liability. Indeed, at least four lawsuits were filed in the last 90 days in Federal Court asserting civil claims under the law. You can read about them at the Dozier Internet Law on Hacking blog.

I will say, however, that the facts of the MySpace Suicide case are ambiguous and complex, and I won't be surprised if the case is dismissed by the Judge post verdict or the jury returns a "not guilty" verdict. Don't take that as a statement that the law does not apply to those violating a terms of use on a website. In my opinion it clearly does apply. Now, let's get the new Congress to fix it like I suggested a year and a half ago.

[admin]

MySpace Suicide Case Media Coverage Revealing, by John W. Dozier

November 30, 2008

At Dozier Internet Law we try to maintain a balanced, objective perspective on things. It's particularly important that we have this mindset when advising clients. Not so for the media, though. When the news reports started filtering in about the MySpace conviction, I thought the defense had won.

Wired.com screamed "Lori Drew Not Guilty of Felonies in Landmark Cyberbullying Trial" and went on to characterize the jury decision as a "slap-on-the-wrist verdict". Similar headlines streamed from the online media. Needless to say, I was a bit surprised to then find that the jury had convicted Ms. Drew of three misdemeanors for unauthorized access, which appear to be computer hacking statute convictions, which carry up to three years in jail and a $300,000 fine. Here is what the headline might have said:

"Jury Verdict Guilty: Suicide Mom Faces Three Years Behind Bars and Almost a Half Million Dollar Fine"

Then the article could have gone into the reality of the situation and the implications of such a court decision. Drew will likely have to sell her assets to cover fines and costs and lawyer fees. Her reputation is ruined. She will be forever considered in the minds of the public as a heinous figure. Her name will be associated with cyberbullying, she'll get her own Wikipedia page, she'll have laws named after her, and this entire process will be available online in perpetuity for her children, her grandchildren, and her grandchildren's granchildren to see. This is a scarlet letter on her name forever. And what employer would ever hire someone convicted of a computer crime relating to personal data and information theft? Job prospects are dim, to say the least. All of this, topped with a serious threat of incarceration in jail. Hardly the victory Wired.com paints.

No, this is no victory for anyone. At Dozier Internet Law we have to ask how much influence the liberal "information yearns to be free" online media contributed to Drew's misunderstanding as to what is, and what is not, acceptable online conduct? When the "authoritative" citizen journalists and recognized online news sites constantly place a biased perspective on permissible online conduct right in the faces of the moms and dads and brothers and sisters living all across our country, are we surprised that Drew misunderstood the rules?

So, for all of the purported "legal experts" wary of these charges, there is a place to get laws changed. It's the legislative branch! It's not the courts. And it certainly is not the court of public opinion. In your shaping of public opinion on this issue, do you provide guidance, support and encouragement for naive netizens to place their livelihood and reputations at risk for generations to come? Yes, you do.

The online world is a long way from self policing and self regulation. Industries that don't embrace those concepts get regulated by laws. Online commentators, journalists and so-called experts need to stop fostering and encouraging lawlessness. Try to establish and promote good, honest, moral, ethical and legal conduct. You'll find that this self regulation and self restraint will preserve many of the rights and liberties today enjoyed by your constituencies. But keep up your misinformation, and you'll find that this case is just the beginning volley of a battle that is brewing over personal misconduct online.

[admin]

Top Five Tips For Start-Ups To Protect Assets, by John W. Dozier

December 04, 2008

The calls come into Dozier Internet Law regularly...even during this economic downturn. "I want to start up a new web business and I need to make sure it is legal" is a typical inquiry. That's likely impossible, I respond, unless you are going to be so passive as to be non-competitive. No one knows where all of the lines are drawn yet, and everyone who is competitive learns to stay away from "blackhat" and clearly illegal activities but at the same time not limit tactics to "white hat" and clearly legal activities. If you operate in a clearly illegal arena there is a small (but not insignificant) chance of getting in a lot of serious trouble, and if you operate in a very safe manner, there is a high probability your business will be non-competitive and fail. So most online businesses operate in the gray area.

That's a fact. That's reality. And therefore a successful online business (there are some exceptions, of course) carries with it inherent risk to your body, mind, soul, spirit, reputation, money and freedom.

If you are young, carefree, and think you have nothing to lose, then your appetite for risk could be high. If you have a family, are moving towards retirement, have some savings and a reputation, then your risk profile might be very low...you don't want to assume much risk. If you are in the later category, consider these five tips from Dozier Internet Law:

1) Incorporate in Nevada or Wyoming. In Nevada you can hide your identity (like a mob controlled Casino front-man) and both states offer strong protections for an individual owner of a corporate entity.

2) Move to Florida or Texas. Both states have generous "homestead exemptions" that will usually allow you to hold onto your house if you have to hide from creditors or file bankruptcy.

3) Move all of your assets into either your wife's (or husband's) name or make sure property (real and personal) is held as a joint tenancy with the rights of survivorship (tenants by the entirety) so your share cannot be taken. And while you are at it, consider opening overseas bank accounts in some select countries that have a particularly strong view on privacy.

4) Consider leaving the US and operating overseas from a country that will offer you strong protections.

5) Establish business relationships with partners outside the US and not subject to subpoenas or extradition so they cannot be forced to testify against you....Caribbean and Central America are popular options this time of year, but certain anti-US Russian states are best.

Or, get a really, really good Internet law lawyer, and use his guidance to help you navigate through the minefields. And when someone comes along and says that Dozier Internet Law is crying wolf and trying to scare people into hiring a lawyer, just the opposite is true. For the great majority of new start-ups on tight budgets being started by mature professionals whose careers have been interrupted by tough economic times, I'm suggesting you find an off-line business idea. A lower risk investment. Like mortgage backed securities...

Capice???

[admin]

Dozier Internet Law on How to Use a Competitor's Name To Drive Sales, by John W. Dozier

December 08, 2008

Each month we are the editor and publisher of the Dozier Internet Law Federal Court Report. Lately we've seen a remarkable increase in Federal lawsuits over the use by someone of a business or product name of a competitor. This is a revealing development. But while the lawsuits are new, the rampant use of competitor names is not.

For years, online businesses and affiliate marketers and the like have known that visitor traffic is the key to success. And if you can have your site return high in the natural or organic search results, then traffic, sales, commissions and profits will follow. And in order to do that, Search Engine Optimization (SEO) techniques are used. It didn't take long to figure out that if your business could present a result when a competitor was searched, that would be great for generating highly qualified traffic. So the less scrupulous online industry started figuring out ways to use competitor's names so that Product X would be presented when Product Y was searched. And that's what the lawsuits are about.

This will be the first in a series of exposes surrounding the surreptitious and illegal use of competitor's names. For businesses out there that are potential victims, pay careful attention to the guidance Dozier Internet Law will offer up so you can see if a competitor is ripping you off. For marketers, publishers, and those looking for more effective ways to drive traffic, please ignore our commentary (of course we strongly discourage using the information we provide as a training manual but putting this information out there is the only way to educate the online business world about the rampant illegalities existing today). And for you "Fair Use" and "Free Speech" lawyers who follow every comment we publish and constantly attack our positions, either you do not understand the business of the web and SEO enough, or you do and just elect to openly encourage these tactics. I suspect ignorance is the most likely culprit, but one must wonder whether your fundamental abhorrence to the protection of property rights of businesses is your motivation. Today, the Dozier Internet Law expose begins with a short list that we'll explore as we move along.

1) Product Reviews: Traditionally protected by "fair use ", many product review sites are surreptitiously owned by a competitor or a marketer. For some reason your business is always getting negative reviews and the competing products are always getting positive reviews!

2) Comparative Advertising: A competitor is openly comparing your product on its website. If the information is false, it is easy to deal with. If it is true, it still can be illegal since the site may have published trivial and irrelevant information and optimized your business or product's name inordinately for SEO purposes.

3) $ucks Sites: Many "sucks sites" are commercially motivated. Can you imagine Sears launching a "sucks site" of comments from Walmart's disgruntled customers and, after it gets indexed high when someone is searching for Walmart, running their own advertising on it? Groups like Public Citizen and Electronic Frontier Foundation and the ACLU think this practice is just fine and dandy. Of course it is illegal.

4) First Sale Doctrine: A competitor of yours goes out, buys one of your products, advertises your products on its site, and then captures prospects searching for you. Funny thing, though. As much as you have tried to figure it out, you have no idea who his source is for your products. That could be a long search. That's because...well, there is no source. They bought one, and don't plan on getting rid of it, so they price your product at an exorbitant level and the customers opt for your competitor's product. Some will argue this is permitted by the "First Sale Doctrine". No, it's not...and on two separate grounds. Not even close.

5) Directories: We caught a Fortune 500 company at this one. Whenever someone searched for a local business by name, the results for the directory listing would come up. Funny thing, though, is that our client did not remember paying for the listing, and he didn't remember ever getting referrals from it. It turned out that when a consumer went to the site, was presented with the details of the company, and requested someone to contact the consumer, the lead was captured and sold to a competitor. There are many ways for directories to use your name legally. This clearly is not one of them.

6) Keyword Stuffing: Or spamdexing. Basically, a competitor uses your name on its site. It could be in the URL, in meta data, behind images in alt tags, in colors your eyes cannot see, or surreptitiously in the html code of the site in such a way that it is indexed by the search engines but never presented as words on the page. Obviously you'll see their site coming up high in search results.

There is one consistency in these situations. When approached about it, the perpetrators always plead ignorance. All of a sudden these skilled search engine optimizers don't even know what "SEO" is, have never heard of a "meta tag", and may have a slight recollection of the existence of a search engine called "Google", but they are not sure (at least according to their lawyers).

At Dozier Internet Law we'll continue to add to the list. Let's expose these practices for what they are!