Dozier Internet Law, by John W. Dozier

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Dec. 1 Effective Date of New FTC Regulations on Online Advertising, by John W. Dozier

October 14, 2009

At Traverse Internet Law, we have seen a gradual, and now more pronounced, shift towards creating liability on the advertiser when an affiliate acts up and breaks the law. There has always been liability if the affiliate marketer is acting as an agent. But that is hard to prove. In the CANSPAM act an affiliate's misconduct can be imputed through to the business for whom he is marketing if the business "consciously avoided" acquiring knowledge of the spammer's misconduct. Now with the new FTC Guidelines coming into effect December 1 the Federal Trade Commission expects businesses (advertisers) using third parties (affiliates or publishers) to "monitor" blogger compliance with new advertising disclosure laws...or else.

We have been recommending for years a three pronged approach to managing the risk that arises with third party marketer misconduct:

1) Conduct Due Diligence on the affiliate in advance of acceptance.

2) Establish clear guidelines and performance standards in your affiliate contract.

3) Implement a compliance/audit program to assure compliance.

That's really what the FTC is talking about when it uses the term "monitor".

Be careful out there.

[admin]

Webhost Hit With $32.4M Judgment For Hosting Site, by John W. Dozier

October 15, 2009

At Traverse Internet Law, we counsel web hosts on how to handle trademark and copyright claims. That's become an even hotter topic in recent weeks as a jury in California returned a $32.4 Million Judgment on behalf of Louis Vuitton against a web hosting company for hosting a website that was allegedly selling knock-offs. The judgment is not surprising and the principles of law nothing new. But you would have thought the sky was falling.

The consumer rights groups and their fanatical followers are all over the web expressing outrage. It's as if they do not understand the laws of copyright and trademark infringement. So I will reiterate what I have been telling clients for many years: if you receive notice of a trademark infringement you had better act decisively and make a decision about whether you want to defend yourself in court or drop the customer.

It really is that simple. Now, if you want to make it complicated and confusing, start reading the free speech and anti-intellectual property lawyers online. They'll encourage you to do otherwise. But I guarantee you if they were representing you they would mirror my advice. If these public interest lawyers and professional professors had to stand behind the absurd "advice" they spew in their blogs and answer to their malpractice insurance carrier their advice would change overnight.

And that wrong-headed advice...that's truly the big fraud that victimizes the typical netizen and can trigger cataclysmic events. And I can think of 32 Million of them right now.

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Google Embraces Reputation Management Techniques, by John W. Dozier

October 20, 2009

John W Dozier Jr, author of Google Bomb with Sue Scheff, highlighted extensive reputation management tactics to counteract Google's biased search results. Now, for the first time, Google has officially approved and is now encouraging the use of reputation management as a defense to false and defamatory search results. The Dozier Internet Law advice in Google Bomb goes much further than the Google guidance and advice and there are some problems with their suggestions since merely asking a webhost or website owner to pull down content, as Google suggests, can itself create more problems in search results. Rather naive advice. But Google does, for the first time, expressly encourage reputation management by the publication of complimentary information to offset the defamatory information. That's a big step. Now if the powers to be at Google can fix the logic they use in generating search results we'll really be making some headway.

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Six Get Prison For Website Harassment, by John W. Dozier

October 26, 2009

Each will get from one to three years in prison for violation of the AETA and cyberstalking.

Traverse Internet Law has commented on the recent Federal appellate court decision rejecting free speech and constitutional challenges to convictions of six animal rights activists. You can read about the convictions on the www.google-bombs.com website. This is a significant victory for those fighting online personal terrorism and could be the map for legislators to follow as laws are drafted trying to address the mobosphere attacks that have become so prevalent online.

Expect an appeal to the Supreme Court of the United States, and then an opportunity for the Supremes to send a message to the scofflaws of the online world that this type of coordinated online attack can get you in serious trouble. Like one to six years in prison.

[admin]

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.

[admin]

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.)

[admin]

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.

[admin]

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?"

[admin]

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.