Legal IM Questions -Round 4

mont7071

mont7071

WF Premium Member
Feb 10, 2009
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Portland, OR USA
Back by popular demand, I figure I'll open up another round of "random legal questions for an Internet lawyer." Still working on a book, but I'd like to see what new questions are out there that should be addressed.

As before, same rules apply. Check here , here then finally here for those rules AND to see if your question has already been asked and answered.

General legal questions only please, you probably know the rules by now, so fire away.....

*Anything I say is just one attorney's opinion. Nothing should be construed as official legal advice, nor create an attorney/client relationship.*
 


I have a quick one.

I'm UK based, and UK businesses aren't allowed to reveal private details to a third party. This is illegal under the data protection act, the third party in question would require legal intervention by a court.

Could a third party request a US based company (such as a hosting provider) to disclose such information or are there similar protections to those in the UK?
 
Mikesev said:
I have a quick one.

I'm UK based, and UK businesses aren't allowed to reveal private details to a third party. This is illegal under the data protection act, the third party in question would require legal intervention by a court.

Could a third party request a US based company (such as a hosting provider) to disclose such information or are there similar protections to those in the UK?
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Depends on the data and who is asking, a subpoena can be legaly binding. For example, if a gov't agency subpoenas an ISP for the customer records of someone hosting child pornography, and the ISP refuses on the grounds that they would be revealing private data...well, the data may be private, but the government has a vested and legitimate interest in learning that data. ISP is looking at some serious problems if they refuse.

Usually, where the third-party is a private citizen/company, they don't have much, if any "authority" to force another party to reveal data. Basically, the standard is usually a "compelling public interest" (as in the child porn example) and that standard is seldom met in private party scenarios. The wording of the various statutes is different, but the underlying "rules" are pretty similar between the US and the UK.

Good Q
 
How many days do I have to sue someone in (small claims and superior) court after a breach of contract has occurred?
 
joevis said:
If one of my affiliates spams Facebook, am I liable?
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hmm...that's the million dollar question now, based on Facebook's suit against MaxBounty :)

I mentioned in an earlier thread's post here my concerns that technically, under a strict reading of the law, a network or merchant COULD end up liable for the bad actions of a rogue affiliate, even if they honestly didn't know what the affiliate was doing and had taken reasonable steps to limit their behavior. On the other side of that, obviously the courts don't want to allow a network or merchant to be knowingly profiting from all kinds of fraudulent behavior their affs are doing, but then claim "hey, the aff did that not me, i'm not responsible for their actions, etc"

I will probably need to do a whole write-up on the Facebook vs. MaxBounty suit one of these days. It will probably be covered in my book if I can fit it in, the case is very unique in the IM law world. If you want a glimpse at the real-life legal scenarios happening in the IM world today that will affect a lot of us, you can see the FB vs MaxBounty case here
 
sarafina84 said:
Whats the status of your IM legal handbook?
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Coming along, slowly. ;)
Its a lot of work, and I feel like I've barely scratched the surface, even with outside help. I'm shooting for a December finish date. Probably also going to try to setup some kind of website for further resources, forms and FAQs, and maybe referrals to qualified IM attorneys in different practice areas and jurisdictions.
 
Thank you, really appreciate the response.

mont7071 said:
Depends on the data and who is asking, a subpoena can be legaly binding. For example, if a gov't agency subpoenas an ISP for the customer records of someone hosting child pornography, and the ISP refuses on the grounds that they would be revealing private data...well, the data may be private, but the government has a vested and legitimate interest in learning that data. ISP is looking at some serious problems if they refuse.

Usually, where the third-party is a private citizen/company, they don't have much, if any "authority" to force another party to reveal data. Basically, the standard is usually a "compelling public interest" (as in the child porn example) and that standard is seldom met in private party scenarios. The wording of the various statutes is different, but the underlying "rules" are pretty similar between the US and the UK.

Good Q
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Someone signs a contract for web dev + ad work.

Tries to get you to do the work before the check clears

Then pulls the money out of the account before the check clears

Check bounces.

You contact them saying "your check bounced", we can't finish until payment for services rendered.

They respond back, we know we want you to do it for cheaper we pulled the money out of the account on purpose.
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EVERYTHING is in writing.

How do you proceed?
 
What is the rule re: pen names. Lets say I make $x,xxx in 7 days or drop 20 lbs in 2 weeks. Can I sell a product and mention MY experiences but use a pen name/persona? This is not a flog, a straight sales page a la clickbank.

Is it ok to use a pen name then put a disclaimer to the effect : based on my experiences, names changed for privacy etc.
 
Soupyone said:
Someone signs a contract for web dev + ad work.

Tries to get you to do the work before the check clears

Then pulls the money out of the account before the check clears

Check bounces.

You contact them saying "your check bounced", we can't finish until payment for services rendered.

They respond back, we know we want you to do it for cheaper we pulled the money out of the account on purpose.
--------------------------------------------------------
EVERYTHING is in writing.

How do you proceed?
Click to expand...

Yep, I saw this post the other day and thought it was a classic example of the kind of legal issues IMers face all the time.

Personally, I'd sue that guy for breach of contract (in my home state, hopefully he lives there too) in a heartbeat if I was you. That is a pretty straight-forward contract claim case. As was already pointed out in the original thread, you guys had a contract, he can't "renegotiate" it after the fact in that manner. Proof looks relatively easy, he issued the e-check for the full amount, so it would likely be pretty simple to prove the amount that was agreed to, what the terms were, etc.

Based on the details you shared, and assuming there isn't another side to the story, that is the exact kind of contract case judges like to stick it to the other guy on. Whether you'll actually be able to collect might be another matter. The big issue to me is that if you now do the uncompleted work, it could be argued that you were "agreeing" to the new rate (called "accord and satisfaction" in legal jargon) and thus were stuck with it. Ultimately, I'd have a hard time completing ANY work for a person like that, I'd probably stop all work, file a civil suit, serve him, and shoot for a default judgment that I could later use against him to collect if I knew his bank details, employer, etc.

In the real world, depends on how much time and effort you want to spend vs. just writing it off and focusing on making money, but that kind of behavior just screams out for "punishment", and I'd probably encourage you to follow up legally.
 
mont7071 said:
Yep, I saw this post the other day and thought it was a classic example of the kind of legal issues IMers face all the time.

Personally, I'd sue that guy for breach of contract (in my home state, hopefully he lives there too) in a heartbeat if I was you. That is a pretty straight-forward contract claim case. As was already pointed out in the original thread, you guys had a contract, he can't "renegotiate" it after the fact in that manner. Proof looks relatively easy, he issued the e-check for the full amount, so it would likely be pretty simple to prove the amount that was agreed to, what the terms were, etc.

Based on the details you shared, and assuming there isn't another side to the story, that is the exact kind of contract case judges like to stick it to the other guy on. Whether you'll actually be able to collect might be another matter. The big issue to me is that if you now do the uncompleted work, it could be argued that you were "agreeing" to the new rate (called "accord and satisfaction" in legal jargon) and thus were stuck with it. Ultimately, I'd have a hard time completing ANY work for a person like that, I'd probably stop all work, file a civil suit, serve him, and shoot for a default judgment that I could later use against him to collect if I knew his bank details, employer, etc.

In the real world, depends on how much time and effort you want to spend vs. just writing it off and focusing on making money, but that kind of behavior just screams out for "punishment", and I'd probably encourage you to follow up legally.
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I'll seek the legal route.

Some people need to be simply taught a lesson. He also runs one of those loan modification companies where they charge upfront without guarantee of satisfaction.
 
Another web site has stolen content from my site twice now. I am referring here to 90% of the user-submitted content on my site.

I submitted a DMCA to the web host the first time, and another DMCA the second time. In both cases, the stolen content got removed.

However, how many times can they do this? The DMCAs aren't being taken seriously because they are simply re-uploading everything they removed a few months later.
 
wickedDUDE said:
Another web site has stolen content from my site twice now. I am referring here to 90% of the user-submitted content on my site.

I submitted a DMCA to the web host the first time, and another DMCA the second time. In both cases, the stolen content got removed.

However, how many times can they do this? The DMCAs aren't being taken seriously because they are simply re-uploading everything they removed a few months later.
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Unfortunately, that's all the hosting company has to do to comply with the "safe harbor" provisions of the DMCA to avoid liability on their part. You might want to include an additional note of "hey, BTW, these guys have done this X number of times, how about suspending their account and saving us both the trouble?" with the next one , but there isn't much legal recourse as long as they take it down each time you send in DMCA takedown notice. That is one of the limitations of DMCA, there is no real method for enforcement of future transgressions or forcing a ban or service cancellation.
 
sarafina84 said:
What is the rule re: pen names. Lets say I make $x,xxx in 7 days or drop 20 lbs in 2 weeks. Can I sell a product and mention MY experiences but use a pen name/persona? This is not a flog, a straight sales page a la clickbank.

Is it ok to use a pen name then put a disclaimer to the effect : based on my experiences, names changed for privacy etc.
Click to expand...


Hmm....I've actually never come across that before, but I can't think of any "rule" that would prevent use of a pen name in that regard, especially if you included a disclaimer of "names changed to protect privacy", so in that regard I don't see any problem. People "ghost write" entire books under pen names all the time.

Your two examples scare me for different reasons however. The first is an "earnings claim" according to the FTC, which has very specific disclaimer requirements. Google "16 CFR 436" for the specifics. Basically, you have to disclose if its not typical income, how many and what % of clients met those figures, etc.
Also, any claim to lose more than 2 lbs per week w/o behavior changes is a "red button" issue for the FTC as well, you can't say it even if you had 1000 users who really did. The diet pill arena is one of their most heavily-enforced in the last 3 years, tread carefully.

Good Q
 
^ Thanks for that link I'll take a look.

1.Now I understand it would apply if I said "I made x,xxx in 7 days and you can too" but does that also apply if Im only recounting my own factual experiences and don't directly tell people that they could earn the same? Same as losing weight example? Like if I put wording to the effect "this happened to me, no guarantee you'll get same results" - would there still be a need for me to provide typical results since I have made no claim of results a person can get in the first place. Just depicted my results.

2.I'm in Canada and I understand in a previous thread you said having a tie to the US gave the FTC jurisdiction. I want to revisit that. Could these be considered ties:

- Being in google.com serps
- being in google.ca serps (because Google is US)
- Using paypal even if they have a Canadian division

Does having a tie to the US i) give ftc full juridiction to pursue or ii) simply give them an avenue they can shut down?

3. If I am not actively promoting to the U.S. (lets say my site ranks in serps and I do no paid ads) Can I put something in the terms & conditions that essentially makes everybody who agrees to a purchase waive the FTC jurisdiction and be under Canada jurisdiction if they complete the purchase?

I have seen this in places where by going ahead, you agree to do a lawsuit in X jurisdiction so I'm wondering if I can do the same.
 
Can i register an LLC in USA from outside of USA (Asia) and can sell physical/online products in USA? Secondly, am i legally liable for the damages/other charges against my business?

Another question, I got fucked over by big G about a year back when they banned my "nonsense" account with over $50000+ in it. I didnt take any legal action, but is it even worth it considering i will be dealing with one of the biggest corps in USA. i can't even do a small claims coz this is a big amount, can you recommend a way to recover this money?
 
mont7071 said:
Coming along, slowly. ;)
Its a lot of work, and I feel like I've barely scratched the surface, even with outside help. I'm shooting for a December finish date. Probably also going to try to setup some kind of website for further resources, forms and FAQs, and maybe referrals to qualified IM attorneys in different practice areas and jurisdictions.
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Legal books become outdated before they hit the shelves. You should set-up a membership-only legal forum with something like a 3-tiered payment system. Anybody offering legal advice or services pays one price, affiliate/ad networks pay another price (they will want to do reputation control, trust me), and anybody that is there just to ask legal questions pays another price. Allow guests to view parts of the forum but not post or PM without paying.

You should be able to charge a nice fee to the lawyers that will want referrals from the site, and a lot of people are more comfortable working with a lawyer that is in their geographic area so there is room for you to market it to a lot of law firms as a way for them to advertise their services. Use VBulletins reputation system so that people can gauge the quality of the past responses. Should be a lot less work, a lot more dynamic, make you more money, and probably give you some real clout in the industry.
 
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