Dozier Internet Law, by John W. Dozier

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New "Red Flag" Law Coming May 1, by John W. Dozier

April 08, 2009

New Data Transfer Laws that were originally set to go into effect Oct. 1 of last year. The date was moved to May 1, 2009. Traverse Internet Law reviewed the new laws as they might be applied by the Federal Trade Commission to the online world of affiliate marketing. But all e-commerce websites (and even passive sites capturing and transfering data) need to take a fresh look at the new landscape.

One of the things Traverse Internet Law has noticed is the potential ambiguity of the definition of covered parties. The analysis is convoluted and complex for some online sites, particularly affiliate marketers.

Seems like a good time to be reviewing privacy policies, data transfer practices, and legal compliance. I'll be speaking in Boston at the Internet Retailer conference in June on data loss and risk management. It's becoming a very hot topic. And with good cause.

[admin]

Domino's Pizza Video Outrage, by John W. Dozier

April 17, 2009

Every Internet lawyer has a take on the video some Domino's Pizza employees made in which they were tainting food for customer consumption. Public Citizen and Paul Alan Levy are at it again, this time criticizing the legal tool used to get it off the web. Public Citizen believes it should stay up for "fair use" reasons, once again ignoring the property rights of a business and failing to understand the basics of product disparagement and defamation.

The video is another sad example of harm a couple of derelicts can cause in the online world. While Public Citizen calls for a repeal of the DMCA, which is the copyright law used to get the video off of Youtube, as an Internet lawyer and not a biased, free speech expansionist, I suggest this is just another example of the out of control influence individual scofflaws can assert. Domino's has been harmed to the tune of hundreds of millions of dollars in all likelihood.

Amend Section 230 of the Communications Decency Act today. You can read about my thoughts on this issue of Section 230 changes in my upcoming book set to be released soon...."Google Bomb".

[admin]

Spam Liability for Affiliate Misconduct, by John W. Dozier

April 19, 2009

There is an article making the rounds in the affiliate marketing world written by someone who is not an attorney. Traverse TraverseInternet Law usually just ignores legal advice coming from non-lawyers. But this one caught our attention because the subject was liability of the advertiser for "affiliate spam", something Traverse Internet Law is actually litigating as we speak and something we have dealt with for many years.

The author explains that CAN-SPAM requires that the advertiser either know of the spam, or that the advertiser "should have known". The former is actual knowledge, and the later standard is constructive knowledge.

But that is definitely not what the law says. There is no constructive knowledge provision in the act. Liability arises when an advertiser is guilty of knowing, or "consciously avoiding" knowing, of the spam. The bottom line is that it is possible, even if an advertiser did not act reasonably and in accordance with standards of ordinary care, to avoid liability for affiliate spam. Negligence alone, which is required for constructive knowledge to arise, may very well exist, but it likely does not rise to the level of scienter (guilty knowledge) required by CAN-SPAM under many circumstances. Absent some intent to avoid learning of spam an advertiser knew, or at least should have known, was occurring, the advertiser is home free.

Back when the law was being passed, there was a battle about trying to get constructive knowledge into the language but Congress would not agree. So the watered down version requiring more than negligence and less than actual knowledge arose.

It still is amazing to me how many Internet industry publications and conferences have business people telling the industry what the law is. I guess that is part of the problem. Not part of the solution.

[admin]

Copyright Lawyer on Pirate Bay Convictions, by John W. Dozier

April 20, 2009

Just a quick comment from a copyright lawyer on the Pirate Bay convictions in Sweden. After gaining support from the Silicon Valley pundits, the video "search engine" aimed at making it simple to locate stolen (technically copyright infringing) movies and the like seemed to thumb its nose at the laws.

And the law fought back. The four individuals involved with Pirate Bay have been sentenced to a year in jail and fined over $3 Million.

I am sure the defendants will all appreciate the quality copyright lawyer advice which came their way from the law professors and liberal anti-intellectual property groups in Silicon Valley and San Francisco as they serve out their prison terms.

[admin]

Defamation of The Dead on NPR Monday, by John W. Dozier

May 05, 2009

Internet Lawyer John W Dozier Jr. will be on National Public Radio's "All Things Considered" Monday. Tune in to learn about defamation of the dead...and how to deal with social network profiles of the deceased...interesting and timely topics. No doubt that the complexities of living life in a connected world are growing.

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Defamation Lawyers' Top Ten Scofflaw Blogger Personas, by John W. Dozier

May 17, 2009

As defamation lawyers, we handle numerous situations in which attacks have been visited upon victims in many different ways. Sometimes the tool is defamation, hacking, stalking, intellectual property infringement, privacy violations, or spam. These attacks emanate from all corners and from all types. We've put together a list of the top ten blogger personas of those involved in defamation and related misconduct and we get a lot of requests for this list.

You can find it at our defamation lawyers page. Spiced with a bit of humor, the list is an easy read for those trying to figure out the motivation behind attacks and attackers. When faced with an online defamation problem, consider consulting our defamation lawyers page with an eye towards gaining a better understanding of the source of your problems.

Defamation Lawyers for Web Business

Defamation Lawyers: Top Ten Blogger Personas: The Mobosphere Unveiled

Ever since Congress passed Section 230 of the Communications Decency Act giving immunity to interactive service providers for publishing the defamation of others, a wide range of characters has arisen and infiltrated the mainstream blogosphere. Instead of becoming a source for obtaining reliable information, the blogosphere, and user generated content, is at risk of becoming a less credible information source. Cybertriallawyer.com Internet Law defamation lawyers are constantly battling these “black hat” forces and over the past several years we have acquired quite an insight into this underworld; an anonymous and covert society bent on terrorizing businesses. These are our internal thoughts on the matter, and not scientific analyses. We are not psychiatrists; just defamation lawyers and trial lawyers trained for almost fifty years to figure out the human nature of clients, witnesses, and juries.

All too often blog attacks are simply protection rackets and extortion schemes in disguise. We have been working on documenting the organizational structure and operational methodologies used by these racketeers. For now, let’s take a look at the entire panoply of characters we seem, as business defamation lawyers, to run into. For those businesses under attack, it is essential that you first identify the publisher’s persona and motivation before beginning to identify the proper strategies for addressing his often seemingly legitimate posts. We don’t go into details on how we work with clients to deal with each type of personality, but the tools vary considerably from being passive, to utilizing SEO services, to implementing reputation management initiatives, to pre-litigation and lawsuit actions.

Defamation Lawyers Pursue Bloggers

1. Pickpocket

This is the guy who used to wait on street corners for elderly ladies to pass. He enjoys attacking defenseless people and stealing covertly using deception. This type of blogger will steal your copyright protected content, have the search engines push your prospective clients to his site, and then run ads and otherwise direct the traffic to your competitors. He could be an affiliate marketer for a competitor getting a share of the revenue, or he could simply be running Google or Yahoo ads on his site. Pickpockets also take great pleasure in stealing your trademarks…surreptitiously using your mark in hidden tags, meta tags, hidden redirect pages, or through a myriad of search engine optimization techniques, all in the hopes of re-directing your prospects to a competitor and taking money from you.

2. Wacko

We usually identify a wacko situation quickly. There are distinctive characteristics of his communications. The wacko is usually a “follower”, someone looking to gain attention and recognition, but escalates what may have started as fair criticism into more and more outrageous claims. Most sophisticated business people immediately view the poster as a “nut case”, particularly when an excessive amount of time or energy disproportionate to the merits of the subject is expended. But it is not easy for the typical browser on the web to see the pattern, usually spread over multiple web properties.

3. Druggie

Or, maybe “liquid courage” would be more appropriate. This guy is exactly what comes to mind. During the day this blogger is a normal guy, but at night he returns to the sanctity of his home, gets drunk or high, and goes out on the web looking for “hook-ups” and blogging on his “hang-ups”. This guy is hard to detect as a fraudster, and sometimes won’t recall what he said online the next day while under the influence. He posts aggressive, false and arbitrary attacks on whatever issue of the day (or night) catches his fancy.

4. Alien

No, not from another world. But from overseas. In a far, far away place, without any treaty with the US, in a country without an effective legal system and no notion of business or personal property ownership rights. Many of these types operate out of certain Russian provinces, but the blogs, postings and communications appear to be from the customer down the street. This individual usually has an ulterior motive, often working with the criminal discussed below. He has no fear, until he takes a vacation to Turkey and US federal agents grab him for extradition, which is exactly what happened on a case in the not so recent past.

5. Nerd

This is the guy who is scared to talk with a girl, but behind the keyboard, all alone, morphs into a Casanova. This empowerment of anonymity creates an omnipotent persona, and for the first time the nerd feels the effect of power and control, gets an adrenaline buzz when he exercises it, and he exercises it often, usually creating or perpetuating a volatile situation in which he feels he can outsmart the “opposition”. There is no principle involved. His blog postings are all about the adrenaline. It is hard to know if you are dealing with this type online…his posts are intelligent and on their face credible. But, once you identify the nerd blogger, he cowers and goes away, usually forever.

6. Rookie

Enjoy debating a thirteen year old? They are out on the net acting like adults, posting statements and play-acting like a grown-up. The challenge, of course, is that most people reading the posts have no idea these are coming from a kid. The tip off can be the utter immaturity of the posts, but most often the kids can sound credible criticizing, for instance, a CPA’s method of calculating RIO on REIT holdings, because they can mimic earlier posts. There is no insidious motive here; just kids having fun as the hormones kick in. But the readers of the blog posting don’t know that.

7. Sadist

This person attacks others, causes pain, and revels in the results in ways not worthy of mention. He loves to create, direct, control, and unleash a firestorm of criticism about a company just to create pain and damage. This type of person may often by the prime instigator of the online attacks, and tightens the noose by escalating the attack rapidly, almost as if in an obsessive state. You will find a sadist going to many sites and blogging, and he usually lets you know it was him because he uses his real moniker. He has characteristics of a stalker, and he is most likely to be the one that starts recommending direct physical violence against the executives of a company. This person is not motivated by money, but by the pure enjoyment of pain being visited upon innocent parties.

8. Bankrupt

No, not morally bankrupt. Actually bankrupt…no money, no assets, no prospects for work, and nothing to lose. These bloggers post without fear of the consequences or any regard for the truth because you “can’t get blood out of a turnip”, you “can’t get water from a rock”, and all these other sayings handed down, we surmise, through his generations. This is usually not a smart guy, but his postings are damaging and inflammatory. Many will own and control blogs without any concern about the consequences of liabilities that might arise through the perpetuation and “enhancement” of posts, and sometimes will post to their own blog and act like it was from a third party.

9. Criminal

Career criminals, no less. Like the convicted felon running a sophisticated extortion scheme against a very prominent business. Or the owner of an open blog avoiding service of process with guard dogs protecting his compound. The thieves and crooks of the world are online today; and the criminals often have both an organization and a highly effective and surprisingly coordinated operational plan in place to target a business. Rumors of $500,000 a year payoffs seem to promote this problem, which emanates from more of a “mobosphere” than the blogosphere.

10. Mis-Leader

This person is in no manner a leader. This blogger has a hidden agenda, but he just makes it sound like he is a totally objective commentator. He can create an appearance of authority and the casual visitor to his blog does not question the legitimacy. This type of persona is hard to figure out. One of the most pervasive practices is to control a blog and allow negative posts against all except his generous advertisers. Another common technique involves omission; not disclosing conflicts of interest or the existence of a business or personal relationship because the readers of the blog would totally discount the commentator’s posts as unreliable and biased.

Internet Law Defamation Lawyers

In closing, most of the blogosphere is legitimate, offers honest opinions and comments that add value to an open dialogue, and is an excellent example of the exercise of constitutionally protected free speech. As business defamation lawyers, we seen another side. The “mobosphere”, on the other hand, operates outside of the spotlight and often uses reckless, irresponsible, false and defamatory statements for personal or professional gain, all too often focused on self gratification and pecuniary benefits. As businesses attempt to leverage user generated content (“UGC”) into a valuable tool in the Web 2.0 environment, the proliferation of the scofflaws interrupting the free flow of credible speech in the online world puts at risk the reputation and integrity of UGC and raises the very real risk that consumers will begin viewing web content with disdain and suspicion.=

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Golf Lesson: Ten Things You Never Want To Hear On The Tee, by John W. Dozier

May 18, 2009

It's early in the golf season, and my driver is suffering. Here are the top ten things I came up with that you never want to hear after you tee off. Thought I would divert from a serious tone for a moment or two in honor of the Spring golf season.

10) You're still away.

9) That's a worm burner.

8) I've never seen anyone there before.

7) I think it opens up over there.

6) Want a mulligan?

5) You should hit a provisional.

4) It's just beyond the white stake.

3) I think it made it to the other fairway.

2) Your problem is that you are standing too close to the ball after you hit it.

1) Have you considered tennis?

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MySpace Suicide Case Dismissal, by John W. Dozier

May 19, 2009

First, if you click on the "MySpace Suicide" category link to the right you can see what has been said about this case. You can see where Dozier Internet Law has been speaking out for almost two years about the problems with the Computer Fraud and Abuse Act. And as far as I can tell, Dozier Internet Law was the only legal voice online to not come out and attack this prosecution. Given the law as it exists today, though, the conviction makes sense.

At sentencing yesterday for the conviction, the Judge delayed it until July 2 and is considering dismissing the charges and overturning the convictions. Here is what Dozier said last year when the case was being tried:

"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."

The Judge has now expressed concern over the impact of this conviction on the masses and the possibility of criminalizing the conduct of the masses who violate website terms and contracts. This is another example of legislating from the bench. The Judge is correct to be concerned. But the change to the law must come from Congress, not the Judiciary. Judicial activism may be popular among the liberal left wingers, but it is not the right thing to do, particularly in this case.

And the reason is clear. If Judges can decide whether laws are good or bad and change them at will, then we have a real problem with the balancing of powers. What power really remains with Congress, or the state legislatures or even city councils? Not much in the end. And from a practical standpoint, if Congress elects to change the hacking statute (which I have been calling for them to do for years) then you can bet that Congress will come up with some legislation to address this type of misconduct visited upon the young girl in this tragic case. Perhaps establishing liability by requiring a digital signature be placed on user agreements, or another law that is focused on these types of abusive uses, will be forthcoming. But that is up to Congress.

Not a California Judge.

An intellectually honest Judge with a conscience is a great thing. But everyone must know their bounds of authority and responsibility. Judges interpret the law. Congress and the executive branch make it.

The fix will certainly require modifying the existing law or adding new law. That's something Judges cannot do. And that is why judicial activism is fundamentally wrong. I'm not criticizing the Judge. I'm criticizing a fundamental philosophy. The present law was last amended in the Patriot Act passed just after 9/11. It's time for Congress to revisit the issue and make sure that the issue the Judge faces today will not be an impediment to future convictions of online scofflaws and miscreants intent upon visiting harm to netizens through gross misconduct or, in a broader sense, online terrorism.

Dozier's book on online attacks, "Google Bomb", is coming in September. You'll appreciate the need for strong legislative action once you learn about the underworld of the web, the attacks of the mobosphere, the virtual Hydra, the Streisand Effect, and the Google Bomb.

[admin]

Google Bomb Book Coming September 1, by John W. Dozier

May 23, 2009

Google Bomb, the book, will be in your favorite bookstores September 1, 2009. Google Bomb is the story of Sue Scheff and legal commentary from John W Dozier Jr.

Google Bomb, the book, will change the way you think about the web. The text follows:

Next up, Google Bomb, the book. The dramatic story of Sue Scheff as she takes the reader through her journey to an $11 million dollar court judgment against online attackers who turned their rage on Ms. Scheff and her business. John W Dozier Jr, a veteran of the Internet bubble as founder and Chairman of the Board of a venture backed e-commerce company, a top rated, preeminent attorney and internet law expert, surveys the landscape of online attacks, explains what happened to Sue, and what can happen to you today in the new world order. From hacking to spam impersonations, from defamation to cyberstalking, from copyright infringement to trademark theft, and from privacy invasions to the unleashing of Google bombs, Mr. Dozier takes you into the bowels of the online underworld, the mobosphere. You'll learn about the personalities of attackers, how to set up an early warning system, and the Top Ten steps you need to take today to protect yourself, your business, and your loved ones. Google Bomb is really a call to action, destined to be a turning point in the fight against online personal terrorists. Published by HCI, renowned for the chicken soup line of books. Available in bookstores by September 1, 2009. Pre-order it today on Amazon. And visit Dozier Internet Law for more information about the law of the web. Are you a victim of an online attack? Relief is coming. September first. It could be the first day of the rest of your life. God bless you and be safe out there.

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Physicians Have Rights Too, by John W. Dozier

June 03, 2009

Any defamation lawyer with an expertise in online cybersmears knows how difficult navigating through a veritable mine field can be. Many of those who fight for online free speech insist that anyone being defamed can respond in our open marketplace of ideas and communications. But for doctors, that just isn't so. Because a federal law known as "HIPAA" prohibits them from discussing clients and their treatment. When a doc calls us, and wants to respond in a quality way to a prominent online complaint that is full of lies, it is hard to justify having to tell the doc as an online defamation lawyer with expertise in Internet defamation that he cannot respond.

It is an outrageous situation that needs to be corrected. Where is the marketplace of ideas if only one side can speak? If you are a physician, consider using a well crafted, customized patient non-disparagement provision in your treatment contract. Remember that HIPAA privacy provisions can be waived by contract. So when you call that defamation lawyer you'll at least have some leverage in negotiating a resolution with the patient or website. But be careful out there...some contracts are so one sided that the courts will likely not enforce them. A careful balance to protect yourself from online false attacks could be the cure.