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SmartPhone Liability for Employers

amy — Wed, 01 Sep 2010 20:57:19 +0000

Blackberrys , iPhones, Palms, Droids… the list goes on. Smartphones are becoming a staple in everyday life and in many industries it is virtually expected by your customers that your employees will be able to access their email during the day regardless of whether they are in their office or not. Furthermore, it is often assumed that workers will have access to their email after hours, on weekends, on holidays and even when they are on vacation.

In the world of employment law there was a time when the claims De Jure typically involved issues surrounding work breaks, lunch breaks, travel time and expenses. Increasingly, however, plaintiff’s lawyers are looking at PDA usage as fodder for their latest claims strategy. We see this issue as particularly important for Internet and technology companies to pay special attention to because the level of employee connectivity tends to rank well above other industries.

The issue involves non-exempt, hourly employees and whether you have established a company policy that requires your employees to check their emails and/or respond to them in their off hours. Such a policy could open your company up to liability for this new brand of employment claim. One solution is not issuing PDAs to hourly employees at all. Another might be altering your employment manual to make it clear that checking and/or responding to emails after hours is purely voluntary and is not required by the company.

Regardless, we expect to see new litigation claims presented on this issue and eventually new legislation to deal with the issue.

Jeffrey A. Cohen is the founder of InternetLitigators and a partner in the El Segundo, California office of Cohen & Richardson, LLP. Mr. Cohen can be reached at JCohen [at] InternetLitigators.com. Mr. Cohen’s practice is focused upon the representation of Internet and technology companies. The reader is cautioned that the information contained herein is not legal advice and is not a substitute for legal advice. There is no attorney client relationship created by this information.

How to Deal with Online Content Theft

Mitch Keeler — Tue, 01 Sep 2009 10:00:02 +0000

Author: Mitch Keeler

Content theft is something that happens to everybody. Having been a target of these thieves myself, as well as being one who has studied up on how to deal with them, I thought I would share some tips with you on how to reclaim ownership of your content.

Under copyright law, anything that you have created is automatically copyrighted by you, as the creator. Just because you distribute your articles, artwork, photography and more for free online does not give anybody else the right to steal it.

So what should you do first? Try to find a way to contact the thief, either by using the contact information on the web site or looking up their contact information via a domain name WhoIs search.

Next, write up a professional e-mail to them asking for them to please remove your content from their website(s). Do not be rude or abusive about it. Just make sure you point out the source of your work, where they are plagiarizing your work, and give them a reasonable time frame to remove it (5 to 7 days should work).

This should take care of the issue nine times out of ten. If it does not, then you might want to look into other options, such as contacting their advertisers, a cease and desist order, or requesting that the various search engines around the Web ban them for duplicate content.

For more help on copyright, content theft and plagiarism, please check out these resources:

Just remember, do not be afraid to fight for your content if it is being used by somebody else. That is your creation, and you should defend your rights when somebody else is stealing it.

Lunar Legal – Read it Before You Sign it

Jeff Cohen — Thu, 18 Jun 2009 16:37:02 +0000

It sounds obvious. However, as the economic downturn begins to show signs of a turnaround, the frequency of Internet transactions is on the rise. The downturn created some major changes in the market, but companies have become more efficient than ever. The market downturn also restructured the workforce significantly and has (in some instances unwillingly) created thousands of new Internet entrepreneurs seeking either to supplement their income effected by lower raises or bonuses or in many instances replacing jobs that were eliminated as the result of layoffs and restructures.

Increased Complexity in Transactions
The world of Internet content development, marketing, traffic and lead generation is entering its adolescence, and as a result deals in these areas are becoming more and more mature and complex. For example, our office is seeing a larger than ever increase in the number of unrepresented companies on the opposite side of deals and transactions. This means that these unrepresented parties are being placed at a greater and greater disadvantage.

Read Every Word
We are constantly surprised by how many, thus far very successful business owners are so willing to simply sign an agreement without spending the time and effort to either review it closely themselves or have it reviewed by an attorney with their best interests in mind. Our advice this month hopefully serves as a reminder more than any earth-shaking new advice. That is that in any business transaction that you enter into, read what you sign carefully before you sign it, and ask questions about anything that is not perfectly clear. Where possible, form a relationship with a qualified attorney familiar with the Internet and with your company so that you have efficient and immediate access to someone that can answer your questions and suggest alternatives on a moment’s notice.

Raise only Appropriate Issues
Just as dangerous to themselves is the unrepresented party that makes a far bigger deal out of a term in an agreement than is necessary. Almost as if these individuals feel that they cannot sign a document without making some sort of fuss to make them feel as though they have accomplished something, they argue a point that needs no arguing and wind up signing a document that includes a difference with no distinction from the original. Having business counsel can avoid this situation and the extra expense and delay that arises by wasting everyone’s time – not to mention the actual loss of reputation that is created for these individuals when everyone else realizes what has occurred. The party develops a reputation for being difficult and the changes he or she proposes in the future begin to lack credibility.

At a minimum, read what you are signing and ask questions about the terms that you do not understand. By this we mean read it – not skim it to see if anything jumps out – actually take the time to sit down and read every word. There have been very few agreements that we have ever approved without any change or correction.

About: Jeffrey A. Cohen is a partner in the El Segundo, California office of Cohen & Richardson, LLP. Mr. Cohen can be reached at JCohen [at] InternetLitigators.com. The reader is cautioned that the information contained herein is not legal advice and is not a substitute for legal advice. There is no attorney client relationship created by this information.

Lunar Legal – Starting your Internet Business in the Current Economy

Jeff Cohen — Thu, 24 Jul 2008 14:38:05 +0000

This month InternetLitigators has seen a significant increase in membership applications from new Internet businesses. Given the current state of the economy, this development seems contrary to the common understanding of good business practice; however, upon closer examination this development is more closely tied to a shift in focus than an economic barrier to entry into the Internet business.

Many of the applications that we have received for our membership program over the past month have had a common thread. The applicants are primarily businesses focused on addressing the needs of those affected by the current economy. We have seen an increase in applicants with businesses targeting consumers seeking assistance with job hunting, consumer debt, self employment, and consumer loans, among other areas.

In general, the legal issues involved in starting an Internet business do not change significantly with the economy. In addition to the business issues one must consider when starting a new business, some of the legal issues that any potential Internet business owner must consider include the following:

1 Business Name
This may or may not be the same as your domain name. Consider any prior use of the name nationwide and for Internet operations, world-wide. You must also consider the use of product names, trademarks, trade names, and logos related to the name of your business, and their use and protection. Commencement of your operations is an excellent time to consider these details because it is typically the time when it is easiest to make changes in strategy.

2 Business Form
Corporation, LLC, Partnership, or Sole Proprietorship? Not making a conscious decision about the form of your business is making a decision in itself. You should not only include legal analysis in the decision but also consult your tax professional, as your choice can have significant tax effect down the road.

3 Insurance / Risk Evaluation
Insurance is often left off the list. Difficult economic times can lead to an increased likelihood of litigation. Be sure that you consult with a business insurance agent that is familiar with the type of coverages that you may need for your particular operations. Also, speak with your attorney about ways in which you can potentially reduce your risk of liability.

4 Contracts
Consider the agreements that you will need for your designers, developers, programmers, service providers, employees and customers. Written agreements take on increasing importance in down economic times because businesses are less likely to take write-offs or waive their rights. Often clients are so excited in the initial stages of a new business that taking the time to consider the nature of the documents that are being signed, or even whether there are documents being signed at all, seems to be a luxury. Disagreements about expectations in relation to these documents are one of the common and largest sources of litigation we encounter. A little time spent up front can help you understand your obligations and avoid problems down the road.

5 Financing
Financing your new business in the current economy raises issues that are unique and in many ways unprecedented. Down economic times makes financing new internet companies a more creative process. Consider how your potential investors will be impacted by the economy and focus on the aspects of your business that speak loudest to potential investors about why your business is well positioned to weather the down times. Consider innovative financing options such as www.gobignetwork.com and www.breadstreet.com.

Based upon the number and nature of new client applications the current economy may not be as daunting as some economists would have you believe. Consider how you can use the current perception of the economy to your advantage and adjust your business strategy and marketing accordingly.

Lunar Legal – Using DMCA to Protect Your Content

Jeff Cohen — Mon, 23 Jun 2008 15:55:47 +0000

This month at InternetLitigators we have had a number of questions arise concerning the use of copyright protected material on the Internet. While issues of copyright and the proper use of information on the Internet can be quite complicated there is one tool that every website owner and content publisher should be familiar with: the takedown requirements of the Digital Millennium Copyright Act.

Website operators publishing the transitory content of others are faced regularly with the dilemma that arises when a customer, blogger, advertiser, or other content provider posts content on the website operator’s website. This is a very common occurrence, particularly in the Web 2.0 environment of social networking and shared content, where often the Website Operator has no control over the information and images being published on its website. Any website operator that wishes to avoid liability for copyright infringement arising out of either taking down a customer’s material that should have properly been left online or improperly leaving up material posted by a customer that should properly have been taken down will eventually become familiar with the DMCA.

The DMCA has several components. The most relevant portion to this article, however, is the Safe Harbor Provisions Section 512(c) which sets forth the procedures that Website Operators must strictly follow in order to successfully avoid this dilemma and remain within the liability limitations known as the Safe Harbor Provisions. Website Operators must follow these requirements strictly in order to remain within the protection of the DMCA Safe Harbor Provisions. The fact that these requirements must be so strictly followed can be used to the advantage of a content owner in the effort to protect its content. At InternetLitigators, we often assist our website owner clients in setting up compliant DMCA policies and procedures and in many situations serve as the registered Agent for the receipt of any DMCA notices. This DMCA policy together with a proper Terms of Service and Privacy Policy are often the first and most important documents for the establishment of a new Web based business. This document tells anyone with a copyright complaint as to information on your website how to contact you and what is required.

As a content owner, if you find your content (typically images or written material) posted on the Internet, you can contact the website operator and request that the information be removed. In order to trigger the requirements of the DMCA you must include substantially everything that is required under the act to constitute a proper “takedown notice”.

In most instances, the Act requires that a valid takedown notice include the following:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In order for the website operator receiving a notice in substantial compliance with the above requirements to remain within the Safe Harbor Provisions they will in most instances be required to remove or disable access to the identified material “expeditiously” and notify the customer that the information has been removed or that access has been disabled. The customer that placed the material on the Internet then has the opportunity to provide a “counter notice” to the Website owner which would then require the website owner to replace the material within 10 – 14 days following receipt of the counter notice.

A proper counter notice under the act must contain the following information:

A physical or electronic signature of the subscriber.
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Upon the re-posting of the information, the person submitting the initial take down notice may notify the Website operator that it has filed a court action seeking an order restraining the infringing activity.

There are many exceptions to these general requirements. If you have specific questions about how the DMCA may apply to your particular situation you should seek guidance from competent legal counsel familiar with the Internet. In general, a good basic understanding the DMCA Safe Harbor (take down) provisions is important to the operation of any successful website involved in publishing the transitory content of others. The DMCA Safe Harbor provisions also serve as an important tool for any content owner seeking to protect its right to content.

Lunar Legal – Commercial Email Rules Under the CAN-SPAM Act of 2003

Jeff Cohen — Fri, 30 May 2008 15:59:41 +0000

This month we decided to make a brief review of what you need to know before engaging in the practice of commercial email advertising. The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) sets the requirements for commercial mailers and establishes the penalties for those that fail to comply.

The Act primarily covers email which has, as its primary purpose, advertising or promoting a commercial product or service, including content on a Web site. In general, the Act requires the following:

False or Misleading Header Information – the to, from and originating domain name and email address must be true and accurate enough to identify the sender.
Deceptive Subject Lines – The subject line must accurately portray the content of the message.
Opt-Out Method – You must provide a method for the recipient to request that you not send further commercial emails and you must implement procedures to honor such requests within 10 days.
Advertisement Designation – you must identify each commercial email as an advertisement. You must also include your physical postal address in the message.

Violations of any of the above can result in penalties of up to $11,000.00. Additional penalties may also apply to any individual that harvests email addresses without authority, generating random email addresses, registering for multiple email accounts for the purpose of sending SPAM, and relaying SPAM through another network without permission.

There are other rules that apply to commercial email, which carry their own requirements and penalties. We recommend that you be certain that your commercial messages are cleared through your legal department or your Internet Attorneys before sending anything you are concerned might violate the CAN-SPAM Act.