Dozier Internet Law, by John W. Dozier

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MySpace Postings Net Criminal Conviction, by John W. Dozier

October 29, 2009

Traverse Internet Law protects the reputations of professionals and businesses online, so we do our best to keep up with the latest developments about social media comments. This case was handed down this summer. In US v. Voneida the Third Circuit Court of Appeals upheld a jury conviction for postings by the defendant on his MySpace page.

There is a federal law that prohibits the transmission in interstate commerce of any communications containing any threat to injure another person. In this case, the Defendant made generalized threats that the Virginia Tech students got what they deserved and stated his support for the shooter in various ways. The appellate court held that the statements, taken as a whole, could have constituted a serious intention to inflict bodily harm, and that a communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. The court reasoned that the comments were reasonably perceived as threatening bodily injury.

At Traverse Internet Law, we continue to see greater efforts by prosecutors to clean up the web by pursuing criminal charges in the most egregious situations. This is one of them.

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US Senate Slams Online Marketers, by John W. Dozier

November 19, 2009

At Traverse Internet Law a good majority of our law practice deals with online marketing. It seems our days are spent working on compliance issues, structuring contracts and litigating advertising related disputes. Needless to say, given the evolving interest in this space by the FTC and Congress and the Department of Justice and the State Attorneys General, this is a growth industry for an Internet lawyer.

Now comes the following from the US Senate:

Affinion, Vertrue and Webloyalty use aggressive sales tactics intentionally designed to mislead online shoppers. These three companies exploit shoppers‘ expectations about the online purchasing process to charge millions of consumers each year for services the consumers do not want and do not understand they have purchased. Hundreds of e-commerce merchants – including many of the best-known, respected websites and retailers on the Internet – allow these three companies to use aggressive sales tactics against their customers, and share in the revenues generated by these misleading tactics. While Congress and the Federal Trade Commission have taken steps to curb similar abusive practices in telemarketing, there has not yet been any action to protect consumers while they are shopping online.

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Edward Heyburn Attacks His Former Employer, by John W. Dozier

November 19, 2009

Traverse Internet Law deals with sucks sites and gripe sites all the time for clients. I even spent a chapter on the issue in the Google Bomb book.

So, here is the situation. A disgruntled lawyer who got fired five years ago from Levinson Axelrod launches a sucks site about the firm and it becomes the coveted and valuable first result in Google when the law firm is searched. It probably comes as no surprise that the lawyer, Edward Heyburn, handles personal injury in New Jersey and reportedly directly competes against his old law firm for clients.

So, if Sears launched a sucks site against Walmart and it became the first result when Walmart is searched on Google, isn't the trademark infringement clear?

Mr. Heyburn claims he is motivated by truth and justice. Right. It is obvious this is trademark infringement. Anyone who understands online marketing knows the commercial nature of the use of the former law firm name. Expect the site to disappear and Mr. Heyburn to be offering up a heartfelt apology very soon. Unless he is as off-kilter as his little commercial enterprise suggests. And if he keeps fighting, prospective clients have to wonder what gives with this character.

I hate it when lawyers pull this crap. Bring on the lawyer jokes. His name is Heyburn. Edward Heyburn. THAT is free speech, Edward Heyburn.

(And thankfully I don't know anyone involved in this dust up in Jersey.)

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Free Lawyers for Citizen Journalists, by John W. Dozier

November 20, 2009

At Traverse Internet Law we face off against the likes of the ACLU, Electronic Frontier Foundation and Public Citizen often. These groups provide free lawyers to crooks and scofflaws and miscreants when they are caught in all kinds of, shall we say, compromising situations. Now we have a new entry.

Thanks to Harvard and its Berkman Center for Internet and Society, the Legal Assistance Network for Online Journalists has just launched. Basically, it offers pro bono (free) lawyers to defend citizen journalists and tries to maintain anonymity for the scofflaws who attack the reputations of others by publishing lies. Their press release calls it a "legal safety net" for online "journalists" (which is just about anyone these days who has a blog or comments online).

Does anyone care about building a "legal safety net" for the families and small businesses of America? Doesn't look that way. At traverse Internet Law we see the pain and hardship and helplessness every day. And for most, there is no safety net to catch their collapsing fortunes brought about by the publication of online attacks and lies from the very people these groups protect.

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Section 230 Protections Eroding, by John W. Dozier

November 20, 2009

First, we previously commented on the suggestion by a Harvard professor that Section 230 changes should be considered. Then ran headlong into a free speech debate about whether the new Federal Trade Commission guidelines creating liability for false advertising could be an exception to Section 230 immunity. The fact that Section 230 "scholars" disagree is enough to convince me that the FTC may just not like the limitations it arguably (albeit not convincingly) must abide by in enforcing online consumer fraud.

Now comes a new bill filed by Rep. Paul Kanjorski, a Dem. from Pa., which would flat out amend Section 230 immunity in cases in which an ISP knows or should know of financial securities misrepresentations by someone using its services and make ISPs liable for all resulting damages incurred by the Securities Investor Protection Corporation.

There is clearly a move afoot. Is it that we are just realizing how overly broad Section 230 really is?

I can hear it now...in the hearing rooms, offices and halls of Congress, when they finally realize the grossly overbroad scope of the immunity granted by Congress to scofflaws and crooks and miscreants.

These Congressmen and Congressmadams will look at their legal counsel, tilt their head, and ask innocently and inquisitively the following:

"We did what?"

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Competitor Keys AdWords Off Lawyer Partner Name, by John W. Dozier

November 20, 2009

The Internet Law Federal Court Report is the monthly report of key Internet lawsuits filed each month. Plenty of AdWords trademark infringement lawsuits have been filed each month. Now one comes with a slight twist.

Cannon and Dunphy, a personal injury law firm, starting keying its adds off the personal names of the very unique name partners of a big competing law firm. The firm targeted was Habush, Habush and Rottier. Cannon is alleged to have keyed ads on Google off of each personal name.

In Wisconsin there is apparently a law prohibiting the commercial exploitation of someone's personal name. Seems pretty open and shut. But it is likely also trademark infringement since the name partners might have common law trademark rights, both state and federal, in their names.

This will be an interesting case to follow.

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Google Launches Law Search Engine, by John W. Dozier

November 21, 2009

Wow is all we can say at Traverse Internet Law. Google has just launched a robust index and search engine for legal decisions in the US. You can search by jurisdiction, subject, etc. and it will return results by relevance. It's called Google Scholar.

Law firms have paid for research tools that generate this information over the years. Now everyone can research in a quality way the court decisions and other legal commentaries on the issue you face in the locality you live. This is groundbreaking and, as Googlers state on their blog, a real benefit to the everday man and woman on the street who simply did not have the visibility into the volumes upon volumes of caselaw buried in law libraries around the country.

You should too.

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Strongest Cyber-Bully Law in US Passes, by John W. Dozier

November 25, 2009

Effective next week, the North Carolina legislature has passed, and the Governor has signed, what appears to be the strongest and broadest CyberBullying law in the US.

The following conduct intended to intimidate or "torment" a minor is now illegal and criminal in North Carolina:

1) Building a fake website or social network profile.

2) Posing as a minor in a chat room, in an email, or in an instant message.

3) Following a minor online or into a chat room.

4) Posting private or personal or sexual information about a minor.

5) Posting a doctored image of a minor online.

6) Publishing any statement, whether true or false, tending to provoke any third party to harass a minor.

7) Signing up a minor for a porn site.

8) Signing up a minor for email lists.

At Dozier Internet Law, we expect to see the free speech expansionists challenge the constitutionality of the law. But it is a dramatic move in the right protection.

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New FTC Online Marketing Rules Effective Today, by John W. Dozier

December 01, 2009

Effective Dec. 1, 2009, the FTC has changed the playing field for online marketing. Mandatory commercial interest notices, new rules for endorsements...regulations and laws are just beginning to catch up to what had become standard business practice abuses.

If you haven't had your lawyer review your content, assist you with the legal notices now required, and explain the expanded liability that now comes with using affiliate marketers, you may want to do so today. Or contact Traverse Internet Law and we would be happy to discuss the landscape. These changes are huge to most of the online marketing world.

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FTC Regs Apply to LeadGen Industry, by John W. Dozier

December 02, 2009

We've been working hard the past month at Traverse Internet Law getting clients compliant with the new FTC rules on online marketing that became effective December 1, 2009. Many businesses in the online lead generation industry have apparently been taken in by some bloggers claiming, unfortunately in error, that the new regs do not apply to lead generation. "Unfortunately in error" because...most lead generation activities are, indeed, covered by the new affiliate marketing rules.

Now, a lead generation business might ask...how that could be? We are not affiliate marketers. We earn our own keep, go out as entrepreneurs and generate an asset that is then capable of being sold in the marketplace. And if that was the case, then the business would likely not be operating as a marketer at all, but as an industrious producer of information that is then sold.

But in reality, what is happening in the online lead generation industry is often something very different. Leads are being pursued, developed, concatenated, segmented, and packaged per the requirements of acquirers. In other words, lead generation is often just the filling of an order for the purchase of personally identifiable information, sometimes (often?) complemented by aggregating multiple data sources to meet defined customer specifications.

If you are generating mortgage leads, your purchaser has often defined the data requirements for qualified leads it will buy from you. In effect, then, you are really acting like an affiliate marketer acting on behalf of a third party. And you are going to be subject to the new FTC regulations requiring certain clear and conspicuous notifications of financial connections. Even an expectation of compensation or consideration from a third party with whom you do not have a written or express forward flow agreement will likely be adequate to bring you under the new rules.

Lead generators then have to give the notice that the communication (blog, website, tweet, social network profile, video, email, etc.) is from a business with a financial interest (material connection notice). And that is so even if your content does not include a specific reference to the identity of the end consumer of information (the party to whom you sell the lead).

The reference to new rules for endorsements is just part of the new FTC regulations. Don't be fooled into thinking that as long as you don't use endorsement you are in compliance. Are there some lead generators that are not subject to the rules? I am sure there are. But I bet it is less than 1% of the marketplace, and that would comprise only those who truly create leads without regard to the requirements of end users, don't have a forward flow purchase expectation, and will actually take the lead and open up the sale to a competitive market. And that doesn't sound like a very likely, or attractive, business model for most lead generators.

At Traverse Internet Law we recognize that lead generation may not be seen without the industry as affiliate marketing. But if you read the new FTC guidelines, you'll see that our big brother government sees things a bit differently.