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Archive for the ‘Internet Law’ Category

Before the advent of the Internet, when a person passed away or became incapacitated, family members or the executor of the Will would located the decedent’s personal and financial information in folders other tangible records found throughout the home. Photographs, letters, account information, etc. were all located physically in print. Today, you are more likely to find personal effects on the decedent’s social media accounts, like Facebook. Does your family know your password? In most cases, they do not.

While Facebook has terms of use for these situations, they may not accomplish what the decedent’s desires. As a result, people are now writing what is being called a Social Media Will which outlines the ownership (or deletion) of online information about them after their death. This can also be accomplished through your regular will or trust. As more and more people move their personal and financial information online protecting digital assets is becoming increasingly important. It is not only important for your family – we’ve all heard of cases where a “friend suggestion” of a deceased person pops up reopening the hurt, but also the risk of personal financial information to be obtained by hackers – this is especially likely when the information is no longer being monitored because of the owner’s death.

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On March 15, 2011, the FTC reported that it entered into the first settlement agreement under the new FTC Guidelines prohibiting fake reviews. Essentially, the Guidelines provide that when someone posts a positive review of a service or product and that person is either connected to the seller receives some sort of compensation for the positive review, the “material connection” between the reviewer and the seller of the product or service must be disclosed. In this case, Legacy Learning, a company which provides guitar lessons on DVDs, had an affiliate review program which compensated bloggers and other online publishers for posting positive reviews about its program. The company agreed to pay a $250,000 penalty for its actions.

I wonder if the FTC is monitoring amazon.com. I was just reading recently about an author who was artificially inflating his sales ratings by buying his own book and posting fake positive reviews. Not only is this morally reprehensible, but it also violates the “new” FTC Guidelines which went into effect in December 2009. I wonder how many businesses engage in this conduct – posting fake reviews on sites like angieslist.com and urbanspoon.com?

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Here is one for my under 30 years of age readers. I am looking for comments (and enlightenment). I will give my view in a later post. According to an article in the New York Times, a 14 year old girl in New Jersey was arrested for child pornography because she posted a sexually explicit picture of herself on MySpace. In response to the number of criminal charges being brought against minors for “sexting,” several states have passed legislation removing this conduct from felony status. A federal court of appeals recently prevented a Pennsylvania prosecutor from bringing child pornography charges against some 12 and 13 year old girls who took some risqué photos at a slumber party. It seems that teenagers like to take and send photos of themselves in various states of undress. The problem is possessing and distributing these photos is considered child pornography in many states – a felony, with jail time, and the obligation to register as a sex offender. Clearly, the lawmakers did not anticipate this new trend. It also appears that there is a wide range of “sexting” activities from sexually suggestive to explicit.

Essentially, there are three situations which need to be addressed when those under 18 engage in the following activities: (1) posting or sending a sexually explicit photo of yourself to someone under the age of 18, (2) posting or sending a photo of yourself and another person which is sexually explicit, and (3) republishing a sexually explicit photo that someone else sent you privately. Do any of these activities warrant a felony charge? Do any warrant a misdemeanor charge? Should any be addressed in the juvenile justice system? Should any be decriminalized? How should these situations be handled from a legal perspective?

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In Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009) Conde Nast is seeking to identify the people who hacked into their computer system and republished pages from the December 2009 issue of GQ magazine on a blog hosted by Google’s Blogger Service. The complaint alleged a violation of the Computer Fraud and Abuse Act (CFAA) for the hacking, and copyright violation for the republishing without permission of copyrighted materials belonging to Conde Nast. The court agreed to issue a subpoena to discover the identity of the hackers and republishers because (1) Conde Nast had alleged sufficient facts to bring an action under both the CFAA and the Copyright Act, (2) the identity of the hackers could be overwritten if not discovered soon, and (3) Conde Nast has no other way of obtaining this information. If you were the Judge, what other conditions would you add before granting a subpoena to identify computer hackers? Would your answer be any different if this was just copyright infringement?

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As most of you know, I usually have a strong opinion on the cases I review. This time, I want to give my readers the opportunity to comment on the future of the Americans with Disabilities Act as it applies to websites. In National Federation of the Blind, et al. v Target Corporation, No. C 06-01802 MHP (N.D. Ca., Sept. 5, 2006), Target was sued because its retail website, Target.com, was not accessible to the blind allegedly in violation of the ADA. Although the organization’s motion for a mandatory injunction to require Target to make their site accessible was denied, the court indicated that the Federation could proceed with its lawsuit. In 2008, Target agreed to settle by paying $6,000,000 to the Federation and agreeing to modify its website with the input of the Federation. Although this case was decided in California and may not set a national precedent, it does seem consistent with the Justice Department’s previous position, although inconsistent with previous court decisions. The questions I am looking for input on are: Are all websites public accommodations? If not, are websites public accommodations if they are integral to a business which serves the public, such as a retailer? What is the cost of making a website accessible? Does making a website accessible reduce its visual appeal? What other issues with websites do people with disabilities encounter? It is my understanding that, in addition to being accessible to those with visual impairments, websites with a “universal design” are more apt to display properly on handheld devices like the iPhone. I am wondering if instead of additional legislation and lawsuits, there is a way to encourage website accessibility in a way that is both cost effective and useful.

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In the case of Blockowicz v. Williams, 2009 WL 4929111 (N.D. IL 2009) Blockowicz sued the Williams for defamatory posts that he made on a number of sites, including the Ripoff Report website. Because Williams did not take down the offending material per the court’s order, the plaintiffs filed a motion to get the Ripoff Report to remove the posts. Ripoff Report opposed the motion alleging that the court did not have authority to force a non-party to the lawsuit to comply with an injunction. The court ruled that the only time a non-party can be forced to remove the materials is if such nonparty acted “in concert” with the defendant in the defamation. Because the court determined that the Ripoff Report did not act in concert with the defendant and had a policy indicating that they will not remove any material for any reason, the court would not order the removal by the Ripoff Report of the defamatory material.

This case brings up a curious issue. There are two statues which provide some immunity to the providers of internet services: The Communications Decency Act of 1996 (CDA) and the Digital Millennium Copyright Act of 1998 (DMCA). The CDA applies to torts, while the DMCA applies to intellectual property. What this case shows is how differently these two statutes treat the issue of immunity. Although the court in Blockowicz did not rely on Section 230 of the Communications Decency Act, Section 230 states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Assuming that the Ripoff Report is sheltered from liability by Section 230, the question becomes why can you force an ISP to take down infringing materials but not defamatory materials? The DMCA provides that Internet Service Providers can be shielded from liability arising out of copyright infringement if they comply with the procedures set forth in the act and remove the material. So although you may not hold an ISP liable under the DMCA; if you believe you have been infringed upon you can get the ISP to remove infringing material. However, if you are defamed you cannot force the removal of the materials under the CDA. The provider is shielded from liability whether or not they remove the offending material. Interesting.

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