Internet Law

Hack Attack - New Iowa Law Governing Data Security Breaches

Matthew McKinneyMatt McKinney is an attorney at BrownWinick Attorneys at Law

From Iowa State University and P.F. Chang's to your town's smallest businesses, hackers are indiscriminate when it comes to attacking computers and networks to access and obtain sensitive consumer data.

Against this very alarming and real backdrop, it is important for businesses of all shapes and sizes to not only take steps to proactively protect consumer data, but also understand the legal requirements and ramifications if they do not act timely and properly following a data security breach.  

On April 3, 2014, Iowa Governor Terry Branstad signed into law a new breach notification requirement (amending a prior law) that includes a provision requiring businesses to not only timely notify consumers whose data was accessed as part of a security breach, but it also requires businesses to notify the Iowa Attorney General's office when just 500 or more Iowa residents are impacted by the security breach. Of particular note, failure to comply with Iowa's new breach notification requirement can result in significant monetary and non-monetary penalties being levied against the business.  Considering how often these breaches occur, the indiscriminate nature of the attacks, as well as the relatively low threshold under Iowa's new law to trigger legal requirements and liability, it's not surprising that many savvy businesses (large and small) are now consider policies, procedures, or protocols for how to handle their affairs if they suddenly learn they suffered a hack attack. 

In short, while taking steps to protect and prepare yourself in advance of a data security breach is critical, it is just as important - if not more so - that following a data security breach your business promptly takes proper steps, including seeking trusted technical and legal advice, to determine the scope of a breach and what, if any, additional action your business must legally take.  If you have any questions regarding the issues outlined above you should contact a licensed attorney or certified security adviser.

Governor Signs Bill Authorizing Study on Online Gaming

An image of a person playing the poker varient...Image via Wikipedia

On May 26, Gov. Terry Branstad signed into law a gambling bill that, among other things, calls for a study on online gambling in Iowa. 

Senate File 526 requires the state racing and gaming commission to prepare a report “regarding the creation of a framework for the state regulation of intrastate Internet poker.” The report will look at the current state of unregulated internet poker play in Iowa, take into account consumer protection issues and explore responsible gaming measures. 

In other words, the report could explore questions such as: how might the state regulate online gaming? Through licensing? New or additional regulations? What might be the tax issues and implications? Should online gambling sites only be allowed to operate through an land-based casino in state - thereby ensuring it is Iowa casino businesses that benefit?

As reported by the, the bill “set[s] the stage for a full debate next year on legalizing Internet poker within the state’s borders.” Iowa businesses may want to keep an eye on this report, as the actions taken in response to it will impact local economy. 

In fact, local businesses may get involved earlier than that, by providing feedback for the study this year. The bill provides that in preparing the report, the administrator of the gaming commission may consult with licensed Iowa casinos and race tracks, potential poker-hub operators and anyone else potentially interested in the preparation of the report. 

Thus, the commission could potentially reach out to anyone from Web developers and designers, to information technology specialists, to e-commerce experts and so on.

Some argue online gambling has the potential to boost the economy. For example, allowing local casinos to launch online gambling websites would likely introduce new revenue streams and create jobs. Of course, others worry about the negative effects of gambling, such as addiction, money laundering, minors gambling and so on. 

In apparent recognition of the harms, Senate File 526 also requires the state department of public health to prepare its own report regarding the societal impacts of internet poker in Iowa.

This report will be incorporated into the racing and gaming commission’s report, which is due Dec. 1.

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Facebook Wants Your Employees To Tell Their Friends Where They Work

We’ve talked before about the importance of a company’s social media or technology personnel policies. In any blog post about employer policies, I’m quick to point out that there’s no one-size-fits-all policy. But here’s one simple issue for employers to consider. 

Facebook, as well as other social networking websites, offers its users pretty straightforward “fill in the blank” queries to share basic information about themselves. One of those queries is “Employer,” and asks, “Where have you worked?” Users often fill out a blank because it’s there; they don’t necessarily consider the implications of every piece of information they share. Employers should consider whether this very simple feature of social networking sites is something they want to address in their technology policies or social media guidelines.  FB screen shot 
Some employers worry that such a declaration may give the mistaken impression that an employee is speaking on behalf of her employer - usually based on the nature of the communications rather than the employer mention alone. There are a number of ways to think about the potential implications, but one suggestion may be to require employees to include a disclaimer in their profile that the communications are the individual’s personal viewpoints and do not reflect the views of his or her employer. If a company chooses this route, it may also be wise to point out to employees a disclaimer doesn’t insulate them from consequences for poor decision-making, and violating company policy may still result in discipline or termination. 

Some employers feel compelled to remind their workforce that once an employee mentions his workplace online, it becomes even more important for the employee to be mindful of the content he or she is publishing. Employers that want to prohibit employees from identifying their place of work altogether should think about whether such a policy might run afoul of FTC regulations requiring disclosure of material relationships in connection with certain communications that could be considered endorsements. 

Employers should consult their attorneys for guidance when drafting or updating personnel policies.

House Votes to Overturn FCC Network Neutrality Rules

Cable You may recall my post last December discussing the so-called “net neutrality” rules adopted by the Federal Communications Commission (FCC).

The concept of net neutrality boils down to the principle that Internet service providers (ISPs) should treat content providers equally (i.e., they shouldn’t give preferential treatment to their own content or hinder access to others’ content). The FCC adopted rules it believed would protect open access to the Internet. The rules, and net neutrality in general, have been vigorously debated. Both camps make some valid arguments, although I stand by my earlier declaration that "it seems the rules have done more to fuel the debate than to settle it.” 

Indeed, that’s still the case. 

Last week, the House passed a Republican-backed bill to repeal the FCC’s net neutrality rules, saying the FCC lacked authority to adopt the rules and, in any event, the government shouldn’t regulate the Internet. Though the resolution passed the House, it passed largely along party lines. It’s not expected to pass the Democrat-controlled Senate, and President Obama has threatened to veto the measure if it showed up on his desk. Thus, last week’s vote may have been more symbolic than anything else. 

What do you think about net neutrality? 

Planning: Social Media Policies for Employers

Many companies are considering whether and how to draft or update social media policies for their personnel.  I would encourage those employers to spend some time in the “planning” stage of that process. In working through this planning process, companies would be wise to (1) involve information technology, human resources, other company decision-makers and legal counsel; and (2) identify the company’s needs, goals and expectations of any new or updated technology policy. Hand-and-mouse

In walking through this early planning stage, please keep in mind that sample handbooks or personnel policies aren’t nearly as helpful to employers in this particular area as other areas.

For example, a sexual harassment policy generally delivers the same message to employees, regardless of the employer’s size, industry or business objectives. 

A technology policy, however, has to be tailored to the individual company’s unique business interests. Whereas one company may want to encourage its sales group to learn how to market the company on Twitter or Facebook, another company may be compelled to focus first on important privacy considerations. 

Ultimately, businesses have to identify the considerations driving the policy for the policy to be effective. Although model policies may offer some helpful tidbits, companies shouldn’t let samples distract them from their own distinct goals.

Choosing An Outside E-Discovery Vendor

Companies that face pending or reasonably anticipated litigation have an obligation to preserve all relevant communications, documents and information. Businesses will be required to produce this information throughout the discovery process.

Failure to properly preserve it can result in serious consequences. 

One way to proactively protect against difficulties in the discovery process is to ensure your company’s document retention policies are up to date now -- before you ever see litigation on the horizon! Be sure you raise and discuss your document retention policies, relevant electronic systems and  e-discovery questions with your lawyers. And be sure your lawyers have a good handle on these issues. Computer

Many companies find it beneficial, or maybe even necessary, to hire an outside vendor to lend a hand with electronic discovery or electronic document retrieval.

Here are a few considerations to help a businesses and their counsel choose an outside e-discovery vendor to help gather electronic documents and information:

  • Make sure company decision-makers work with information technology and legal counsel (inside and outside) in outlining the company’s needs and in making the decision.
  • Ask the vendor if it will be able to work with the quirks of your case.  Be sure to mention relevant discovery and court deadlines, and you may want to ask how they respond if deadlines change, as they often do. Particularly, if you have a potentially large case or suspect data recovery may be complicated, ask the vendor if it has the resources and capabilities to handle the complexities of your litigation.
  • Review the vendor’s policies carefully.  Be sure you and your lawyer understand, or negotiate, what happens with the information retrieved. For example, where is it stored? Exactly who will have access to the data? Does the vendor subcontract any step of its process? You may also wish to confirm your business retains ownership of the data retrieved.
  • How familiar is the vendor with the legal process? 
  • What steps does the vendor take to protect personal, confidential, proprietary or other private information?  (i.e., will confidential information be stored in encrypted form?)
  • A question that may be particularly helpful for your attorney to ask: what is the vendor’s availability outside of regular business hours? 

Litigation is never fun for businesses. But, in addition to maintaining good document retention policies, finding effective ways to manage the discovery process – particularly the challenges posed by electronic discovery – can help make the litigation process go much smoother for you and your lawyer.

FTC Endorsement Guidelines Address Online Communications

We recently began a discussion about the proliferation of Web 2.0 and how that posesBlog pic  various legal risks to business owners.  For example, in 2009, the Federal Trade Commission (FTC) issued its first update in almost 30 years to its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."  The updated guidance mandates disclosure of any “material connections” between a person endorsing a company, product or service, and the company/product/service being endorsed. 

One oft-cited example:  bloggers have to disclose any payments or in-kind donations, or “freebies," they receive in return for reviewing a product or service.  Employers may also incur liability if their employees engage in online communications promoting a product or service of the employer and the employees don’t disclose the fact they work for the business being promoted.  Significantly, the FTC suggests that an employer may help mitigate liability by instituting, and consistently enforcing, appropriate employee policies on social media and other online communications.

The FTC’s “Facts for Businesses” begins with a helpful explanation of the basis for the new guidelines:

Suppose you meet someone who tells you about a great new product. It performs exactly as advertised and offers fantastic new features. Would that endorsement factor into your decision to buy the product? Probably.

Now suppose you learn that the person works for the company that sells the product – or has been paid by the company to tout the product. Would you want to know that when you’re evaluating the endorser’s glowing recommendation? You bet. That common-sense premise is at the heart of the revised Endorsement Guides issued by the Federal Trade Commission (FTC), the nation’s consumer protection agency.

The Revised Endorsement and Testimonial Guides themselves offer employers a couple illustrations to help them understand the updated rules.  The FTC’s press release also offers some information.  The FTC also gives additional explanation of the guidelines for bloggers in its multimedia library about the endorsement guidelines.


*Update:  Thanks to Brett Trout for alerting me to my typo -- I inadvertently said the regs were effective last year, but they went into effect in 2009

The Social Media Revolution: Don't Overlook Legal Risks

After already scoring four Golden Globe Awards earlier this month, “The Social  Network,” a movie about the founders of Facebook, just received eight Oscar nods.  All the media buzz surrounding this week’s Oscar nominations – or more specifically, the buzz surrounding this movie – inspires me to make a couple points about social media and the law. 

First, all the excitement over this movie further illustrates that social media has become a truly colossal cultural phenomenon.  Our understanding of the Internet has truly shifted.  What was once thought of as a mere repository of information is now considered an interactive tool.  This idea of the Internet as interactive is sometimes referred to as “Web 2.0” – a term representing this changing trend in the way the Internet is used. 

But I would go even further.  Social media has changed more than just the way we understand the Internet.  As I have said time and again, social media – or perhaps Web 2.0 more broadly – has changed the way we understand information, technology and interaction in general.  Because Web 2.0 has introduced such fundamental changes, it’s necessarily influencing us in our personal lives and in our professional lives.

Companies are finding new and creative ways to use technology and social media to benefit business.  For some reason, however, many of these companies forget to keep an eye out for the potential risks that accompany each of those benefits.  The legal risks may arise out of countless factual scenarios, and may fall anywhere within a continuum of various areas of law, as well.  Just one area of law for business owners to consider:  employment law. 

The ability to be “connected” 24/7 means it’s easier for employees’ personal lives and work lives to become much more intertwined.  Many of us have used technology during the work day for personal reasons and/or have used technology on our personal time for work reasons.  Maybe you log on to Facebook via your desktop at the office to let your son know you’ll be late for dinner.  Maybe you get home and realize you forgot to check on a customer file, and use your personal laptop to remotely log into your online directory at work.  Whatever the case may be, there’s no doubt the ever-changing role of technology has led to a “spillover” between social-versus-professional realities.  The blurred lines created or exacerbated by technology have led to an environment that often poses new, different or changing risks to businesses in many different ways – including as employers, specifically.
Companies can safely assume a significant portion of their workforces are engaged online in one way or another.  Employers should be mindful of how this reality intersects with their own obligations, expectations, business interests, legal exposure and so on. 

Beware Online Scams

Scam Unfortunately, the Internet has greatly facilitated scammers in their preying on the unwary.  If you receive an email from the princess of Yemen saying her child has been abducted and she needs you to wire her $57,000 to help her find her son and rescue dolphins, you’ll probably pause before running to the local Western Union. 

But not all scams raise obvious red flags and may truly seem attractive at first blush. 

For example, in light of the current economic environment, many folks have been lured in by various work-at-home (i.e., “get-rich-quick”), “mortgage relief,” and advance-fee loan scams.  The Better Business Bureau’s list of Top 10 Scams and Rip-Offs of 2010 includes a number of Internet scams.  The New York Times has also recently warned readers to watch out for various online scams.

A few tips to keep in mind when reading through your inbox:

  • Be particularly careful of schemes asking you to pay something up front. 
  • Remember you may always check out businesses and websites at the Better Business Bureau.  You might also just run some general Internet searches to do a little investigating of your own before you conduct business with an online business.
  • For information about consumer protection and how to file a consumer fraud complaint, visit the Iowa Attorney General's web site.
  • You may find additional consumer protection information at the Federal Trade Commission's Bureau of Consumer Protection.
  • Think twice before doling out personal information online.  Is the web site reputable?  Is it secure?  Privacy Rights Clearinghouse offers information and resources for dealing with a security breach.

FCC Issues Net Neutrality Order

AT&T 'Picturephone' Mod II of 1972-73, -expose...Image via Wikipedia

The Federal Communications Commission (FCC) last week adopted rules regulating Internet access, or more specifically, regulating Internet service providers. 

The rules are meant to protect the openness of and unfiltered access to the Internet.  So-called “net neutrality” is the idea that Internet service providers (ISPs) should treat content providers equally, and that (1) ISPs shouldn’t be allowed to give preferential treatment to their own content, (2) content providers shouldn't be allowed to pay ISPs to prioritize their content, and (3) ISPs should not be able to hinder access to others’ content. 

The FCC adopted three basic rules to be applied with the complementary principle of reasonable network management:

  • Transparency.  Fixed and mobile broadband providers must disclose the network management practices, performance characteristics and terms and conditions of their broadband services;
  • No blocking. Fixed broadband providers may not block lawful content, applications, services or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and
  • No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

Net neutrality in general, as well as the Dec. 21 ruling and adopted rules specifically, have been hotly debated. Critics on both sides have been responding to the recent ruling. Some critics don’t think the Internet should be regulated at all, or they worry the FCC will try to gradually increase its regulatory jurisdiction over the Internet. 

Others complain the rules leave too many loopholes (especially in the wireless arena) and believe the FCC should have gone further to protect Internet users, consumers, small start-ups and entrepreneurs. 

While I’m not sure I’m ready to weigh in with an opinion myself, I will say it seems the rules have done more to fuel the debate than to settle it. 

The FCC’s press release on the net neutrality order may be found here and the report and order may be found here.

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Using Online Images in Your Blog: Tread Carefully

Copyright Many business bloggers like to include a nice visual along with their text – a common blogging practice.

But be aware. The seemingly innocuous act of adding an image to blog posts (particularly when that image was found online) potentially sets all kinds of copyright landmines for unsuspecting bloggers. Earlier copyright discussions would apply to the use of someone else’s image on your or your company’s blog – including fair use considerations, the difference between the “Internet” and the “public domain” as well as the assumption most works are protected, and the distinction between copyright infringement and plagiarism.

Drawing from those considerations and expanding upon the licensing discussion in my last post, let’s talk about a couple considerations or tips regarding online images.

Get permission! As I hope I’ve been emphasizing these last few weeks, to properly use someone else’s image or other work, a blogger should have permission to do so. Permission to use online works often comes in the form of licensing. You may also consider simply sending an e-mail asking the owner if you can use the image, describe how you’d like to use it and ask how the owner would like you to attribute it. You may want to save that e-mail and start a file where you can save your “permission” e-mails.

Google Images. Google has some advanced searching features many users don’t know about. One of those features is the ability to search for images with specific licensing information. The Social Media Law Student blog offers a tutorial on this entitled, “How to Use Google Images Without Getting Sued.”

Other Services.  Even when using advanced Google image searches, or a content suggestion service such as Zemanta, remain cautious. Zemanta, for example, represents that its images are "copyright cleared." But the service ultimately just displays the licensing information. The user must independently decide if the image is “license appropriate” for its intended use. Many of these services also include terms of use under which they disclaim any liability for infringement or other harm that may result from use of the service. 

Ultimately, the key to understanding these licensing issues is to ensure you grasp the distinctions among the specific licenses and make an independent determination as to whether your intended use fits within the scope of the rights granted under that license.

Get Creative! So what is the safest route for you bloggers out there who want to use a photo? Use one of your own pictures! This doesn't mean you can find an image online and edit it to make it your own -- because derivative rights belong to the copyright owner. I literally mean grab your camera (or heck, you can even grab your iPhone) and snap a good on-topic picture of your very own.

Licensing Intellectual Property: Altering the Default "All Rights Reserved" Copyright Protection

Hamman Manus R mechanical computer, produced i...Image via Wikipedia

In recent Internet law posts on IowaBiz, we’ve been addressing some copyright issues facing business bloggers. Today’s blog post will discuss licensing of online works.

Whether a blogger wants to use someone else’s work (often arising when a blogger wants to use an image he or she found online, for example) or whether a blogger wants to instruct others about how his or her own blog material may or may not be used, licensing is an important concept for bloggers to understand.

Licensing, generally. Remember that copyright protection gives the owner of a particular work a number of exclusive rights. A copyright owner may license his or her work in various ways, and licensing essentially “gives up” (usually qualifiedly) one or some combination of the owner’s exclusive rights. That is, a copyright owner may use a license to communicate to others, “here’s exactly how you may use my work – you may use this work under these particular circumstances or pursuant to these particular qualifications/limitations.” 

But why would anyone give up his or her exclusive rights?  Good question. Some copyright owners don’t want to give up exclusive rights. Other times, in the context of promotional works meant to garner marketing benefits for example, a copyright owner finds it beneficial to actually invite certain specified uses or reproductions of the work via a license.  Some view this as essentially licensing “free advertising.” Some even argue that in this world of rampant copyright infringement of online works, instead of relying upon the default (and often misunderstood) “all rights reserved” copyright protection, a copyright owner may actually retain greater practical protection over online material by providing these specific instructions about how a work may or may not be used. The decision whether and under what conditions to license any particular work should be decided on a case-by-case, cost/benefit analysis by the copyright owner.

One type of licensing scheme:  Creative Commons. The Creative Commons establishes one non-exclusive licensing system, and it’s a particularly well-known mechanism for online publishers to specify exactly what others can and can’t do with a particular work. (Note, however, Creative Commons does not recommend using its licenses for software licensing.  You may want to check out licenses listed at Open Source Initiative if you’re looking for software licenses.) A Creative Commons license gives a copyright owner a relatively simple way to communicate to others a “some rights reserved” message rather than an “all rights reserved” message. Bloggers should be sure they understand the details of those rights they're giving up, and the details of each license before adopting such a license, however.  Among the many reasons it's important to understand these details before acting: a Creative Commons license can't be revoked.  Bloggers may want to review the Creative Commons web site, and specifically, the Creative Commons frequently asked questions, for more information and explanations about Creative Commons licensing. (There’s also an “abbreviated” frequently asked questions page – the “frequently frequently asked questions,” if you will.)  

Understand the specific license before using it or relying upon it.  Keep in mind that although it’s well known and offers various licenses itself, Creative Commons is only one licensing mechanism. In any event, bloggers should be sure they understand the ins and outs of any license they decide to use for their own works, as well as the license attached to the use of others’ material they choose to use themselves. Always read (or have your attorney read and explain to you) the legal code behind the licenses, and be sure you understand the legal implications of your chosen course. 

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Business Bloggers & Copyright: Attribution Doesn’t Equate to Permission

copy copy copy copy copy copy copy copy copy c...Image by bettyx1138 via Flickr

In my first series of posts for IowaBiz, I’ve been addressing some copyright issues facing business bloggers.  The first primarily focused on the fair use doctrine. Next, we discussed a few more copyright factoids. Today, let’s talk about the commonly misunderstood distinction between plagiarism and copyright infringement.

Particularly for those of us engaged online for business and marketing, it’s customary - often complimentary - to comment about and link to someone else’s blog or site. Just as a scholarly paper includes a bibliography, bloggers are expected to properly credit and link to their sources.

As Professor Lastowka succinctly explains in his 2007 Boston University Law Review Article (published in 87 Boston U. L. Rev. 41 (2007) - draft available on SSRN here), “Where a provider of information can obtain essentially no market benefit other than popular attention, proper attribution of the information to the source of production is essential.”

Unfortunately, however, many bloggers mistakenly assume a reference to the original source, or even a link back to the original, means they’re free to copy at will without worrying about copyright infringement.

In a nutshell, giving credit doesn’t necessarily mean you’re not infringing.  To illustrate:  Let’s say I stole Todd’s wallet to buy myself a caramel macchiato. Would he consider me less of a thief if I clearly explained to the barista, “This is Todd’s money,” as I handed over his credit card?  Probably not.  Stealing is stealing.

Attributing a work means you’re not plagiarizing, but it doesn’t necessarily mean you’re not infringing a copyright. You have an ethical obligation to properly attribute a work to avoid plagiarizing someone else’s work. You have a legal obligation to respect the exclusive rights held by a copyright owner. 

Want to borrow a picture you found via Google image search? Want to use a hiphop song as background music in a YouTube marketing video? If you’d like to quote someone else’s copyrighted work on your own blog, you could simply seek written permission.

If you don’t have express permission, consider the fair use factors

As you probably remember, attribution isn’t one of the express statutory factors. However, the fair use inquiry focuses on a balance of equities. Consequently, attribution often indirectly plays into the analysis. For example, properly crediting and linking back to the original source may weigh in favor of fair use under the factor addressing the effect of the use upon the value/potential market of the copyrighted work. As Professor Lastowka aptly explained in his Digital Attribution article mentioned above, attribution is not “regularly considered by courts as a factor in the fair use analysis." Rather, “in certain cases, plaintiffs and defendants have been successful in persuading courts to incorporate evidence about attribution into a fair use analysis.” Professor Lastowka goes on to set forth a well-reasoned argument to propose adding attribution as a fifth fair use factor under the federal Copyright Act.

In sum, obtain permission or ensure you're comfortable with a fair use exception for your particular use. And give proper credit and link to the original source. For further reading on copyright and plagiarism, you may want to check out the resources listed under the Simpson College Copyright & Plagiarism Research Guide online.

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Copyright & Blogging for Business: Part II

Every day, technology makes it easier to distribute and reproduce information – and Photo consequently, to violate copyright laws.  My last post began a discussion on copyright issues that crop up in the context of blogging or otherwise using online media for business purposes.  That post focused largely on the fair use doctrine.  Let’s move on to consider a couple other notes on copyright. 

First, a clarification regarding my earlier post.  When describing fair use factors, I said courts consider the nature of the copyrighted work, and mentioned the general rule that “Bloggers may repeat facts or ideas contained in someone else’s online content, but may not copy the particular way in which the original author expressed that information.”  Be sure to read this extra commentary as stating a general rule of copyright protection in the first instance – not as a limitation on the fair use inquiry.  The pure “fact-copying” rule can’t literally be applied in the context of fair use. (That’s impossible -- if we reach fair use, we know the work’s protected.  Fair use focuses on whether there’s a defense for an otherwise infringing use.)  The “fact-copying” rule is relevant to the fair-use equation simply in understanding the “nature of the work” fair-use factor flows from that basic rule of copyrightability.  Remember the existence of copyright protection stands separately from, and necessarily precedes, the fair-use inquiry.  Bottom line:  the law favors dissemination of factual, informational, and scholarly information, so fair use narrows as the expression becomes more creative or imaginative.  (Thanks to Professor Eric Johnson for pointing out I could have been a bit clearer about that!) 

Internet ≠ public domain.  Find an article online you want to republish onto your company’s Facebook fan page?  Assume that’s OK just because you found it on an unrestricted website?  Many people mistakenly believe that if something is published on the Internet, there’s no copyright protection.  In fact, work isn’t in the public domain just because it’s posted online.  (The assumption might make intuitive sense, but “public domain” has a specific legal meaning.  Yeah.  The “lack of intuition” thing happens a lot in law.)  The internet offers one (well, many) form(s) of publication.  Just because technology allows others to more freely access a work doesn’t entitle others to freely copy, display, adapt, or distribute that work. 

Assume it’s protected.  Unless the copyright owner clearly relinquishes his or her rights, it’s best to assume it’s protected.  Copyright protects any original authorship that’s fixed in a tangible form.  A work doesn’t have to be registered with the Copyright Office to be protected (but registration does offer benefits to the owner). It doesn’t have to include a copyright notice to have copyright protection (the law used to require this, and although it doesn’t anymore, it’s still a good idea to include a notice).  Want to re-post a picture, but can’t figure out who owns it?  Copyright protects even anonymous works.

Business Bloggers and Copyright

96814923 Bloggers are pretty much awesome. Clearly, I’m objective about that.

What I mean: whether blogging or otherwise engaged online, most savvy users of interactive technology for business understand the importance of using online tools responsibly and want to ensure online initiatives comply with federal copyright law.

I can’t cover every potential land mine, but this post will be the first in a series addressing a few copyright issues business owners, corporate communicators, marketing professionals, and others often encounter online. I also hope to debunk some prevailing misunderstandings.

How many parts to this series, you ask?  I cannot stifle my free spirit by limiting myself to something as restrictive as a precise number. That, and I’m not sure yet. Generally, federal copyright law gives the copyright owner a number of exclusive rights (i.e. to copy, adapt, publicly distribute, publicly perform and publicly display).

Though exclusive, they are not absolute.  Among the limitations on these rights, “fair use” stands as one of the most important.

Although the fair use doctrine is flexible, it’s much narrower than many assume. The federal copyright act doesn’t define fair use, but it does set forth considerations for courts to weigh in deciding whether a particular use may be considered fair. No single factor is determinative.

  • The statute first suggests a handful of presumably favored uses, including criticism, comment, news reporting, teaching, scholarship and research.
  • The purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes. This may be tricky in the context of blogging: information may be free and educational, but the author may clearly be blogging for marketing benefits. Would this affect a court’s view of the commercial versus educational nature of the use?
  • The nature of the copyrighted work.  For example, are you repeating a fact or are you repeating someone else’s unique turn-of-phrase used to convey that fact?  Bloggers may repeat facts or ideas contained in someone else’s online content, but may not copy the particular way in which the original author expressed that information.
  • The amount and substantiality of the use in relation to the copyrighted work as a whole. Contrary to popular misconception, fair use can’t be boiled down to a particular word count or percentage-of-original. (i.e., “I only used ten words from the 500-word article,” “I only copied one paragraph out of seven” or “I only quoted ten percent of the original piece”). According to the Electronic Frontier Foundation, “short quotations will usually be fair use, not copyright infringement.” Again, though, there are no clear-cut rules.
  • The effect of the use upon value/potential market of the copyrighted work. Linking to the original, for example, may help minimize this risk.

When in doubt, get permission in writing or consult an attorney.

Stay tuned for my next post, which will explore further copyright issues that frequently pop up for bloggers and other online business communicators. If you’d like more information in the meantime, the United States Copyright Office offers some great resources, including its Copyright Basics circular.

- Megan Erickson

Megan blogs for IowaBiz for educational and informational purposes only, and nothing in her blog posts should be considered, construed, or relied upon as legal advice or as establishing an attorney-client relationship between you and Megan, you and Megan’s firm, or you and anyone else. Additionally, Megan will try to incorporate into her writing enough clever wit to offset the boring nature of this disclaimer she made us include.

Avoid fighting even the little gorilla

A promotional image distributed by A Glass and...Image via Wikipedia

In case you haven’t heard, YouTube won its case against Viacom, who sued for copyright infringement based on thousands of Viacom videos that were uploaded to YouTube.

Now that YouTube escaped liability for piracy, you may post ANYTHING you like on your website, right?

To put the answer in legal terms: no, no, No, NO.

The 1000-pound gorilla just defeated the 800-pound gorilla. (800-pound gorilla has vowed to appeal.)

Before drastically changing the content policy for your website, consult your Intellectual Property attorney. Copyright law is old but evolving. At this point it may be better to stay the course and heed trusted advice for your online business.

Now may be the wrong time to mess with the 800-pound gorilla who is looking for the fight it can win.

- Christine Branstad


The Danger of Google Buzz

Image representing Google as depicted in Crunc...Image via CrunchBase

Google just released its new social media platform. Google Buzz allows you to share pictures, thoughts and even your location with your friends. If you already have a Gmail, all you have to do is click the Google Buzz button to get started. But wait!

Industry insiders point to several potential security concerns with Google's new wunderkind. One problem is that Google Buzz automatically sets you up with followers and people to follow. Is there anyone on your current contact list with whom you would prefer not to share your photos and the details of your daily life? You see the problem

While Google is working to patch these security issues, it may be best to hold off on Google Buzz until privacy advocates give the all clear. If you already signed up, here are some step-by-step directions to make sure you have turned off Google Buzz completely. 

Brett Trout
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Beware of the Latest Online Scams

An example of a phishing e-mail, disguised as ...Image via Wikipedia

Not Your Father's Online Scam

By now, everyone is familiar with the Nigerian scam. You receive an e-mail for an offer you cannot refuse. The sender alleges he or she is trustee of a large sum of unclaimed money. If you will agree to take the money into the United States, you will receive half the money (typically millions) for your trouble. After sending $200 for paperwork, $500 for bribes, $2000 for customs and $10,000 for lawyers you get the impression things are not quite as they seem. With so many pigeons now wise to the "419 grift," online scammers are constantly devising increasingly clever ways to part money from fools.

Online Dating

One of the hallmarks of a great scam is selecting a highly motivated victim. Online scammers use dating Web sites to target the lovelorn. Posting attractive pictures and telling sad stories of unforeseen financial difficulties, scammers bilk online daters out of money, gifts, credit card numbers and bank information. While from a distance these scams seem easy to spot, once the scammers masterfully weave an emotional connection, logical analysis flies out the window. Anytime you receive an online request for money, gifts or financial information, there is a high likelihood there is a scammer on the other end.

Employment Scam

Praying on the desperately unemployed, scammers post fake job opportunities, sometimes using the names of legitimate companies. The job opportunity is often a payroll clerk. The scam involves sending the victim a large check. The scammer requests the victim cash the check and send out smaller to checks to "employees" of the business. The scammers large check is fake, but the victims little checks are real. By the time the victim discovers the big check is fake, the "employees" have already disappeared with the victim's money.

Professional Scams

Doctors and lawyers are increasingly the target of scammers. Posing as information technology professionals or potential clients, international criminals extract sensitive personal information, garner financial information and install viruses on the victims' computers. The scams may be as simple as posing as someone in the victim's IT department and calling the receptionist to confirm his or her password works with the "new" system, or as complex as creating a fake multinational organization, complete with a pricey Web site and myriad references. Be wary of "spear phishing" scams buried within unsolicited emails. Never open attachments in an email from someone you do not know. Even if you do know the sender, scammers often "spoof" the name of the sender. 

Charity Scams

In the wake of any large disaster, scammers lie in wait for compassionate people willing to give. Criminals build elaborate Web sites emulating recognized charities. Through a barrage of spam emails, the scammers direct people to donate to the victims of the latest crisis. Beware of any unsolicited request for a charitable donation. When in doubt, donate to an established charity. You can even check the charity out online to determine what percentage of your donation actually gets to the people in need.

Government Scams

Impersonating governmental agencies to obtain your financial information is a successful scam simply because it is so brazen. What kind of a criminal would impersonate the IRS, the FBI or Homeland Security? Receiving an e-mail from one of these organizations often leaves the victim more worried about what they might have done, than whether the email contains malicious software. If you suspect the e-mail is not legitimate, do not reply, do not click on any links and do not call any phone numbers in the e-mail or open any attachments. Contact the government agent directly to confirm that the email is legitimate.  

Pop-up Advertisements

If you receive a pop-up advertisement for anti-virus software be wary. Such pop-up ads often appear to be scanning your hard drive in an attempt to get you to click on the ad.  Clicking on the ad however, can install harmful software, extract sensitive information or send the scammer a log of your keystrokes, which includes all of your usernames and passwords. The FBI has reported over $150 million in losses attributable to this scam alone. 

What to Do

If you suspect you have been scammed, or have received a solicitation you believe may be a scam, contact your information technology department immediately, providing all of the details you have. You may also file a complaint with the Internet Crime Complaint Center (IC3), a partnership between the FBI, the National White Collar Crime Center and the Bureau of Justice Assistance. Most importantly, be on the lookout for new scams. The most effective scam will always be the one that is new to you. 

Brett Trout

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How Do I Patent My Idea?

Seal of the United States Patent and Trademark...Image via Wikipedia

What is a Patent?

Patents are documents that protect inventions. Good patents describe the invention in broad terms, making it more difficult to design around the patent or challenge a claim of infringement. Good patents are hard to draft. If they are drafted too broadly, broadly enough to cover something that has already been invented, the patent is invalid.

As you might imagine, patents are quite complex.

Patents are so complicated and technical that ordinary attorneys are not even allowed to draft them. Patents are drafted by patent attorneys, who receive special training, have undergraduate studies in a science and pass a special Bar exam to practice before the United States Patent and Trademark Office (USPTO).

Do I Need a Patent?

Well drafted patents grant you a broad monopoly in the marketplace. The downside is they can be expensive, averaging about $9,000 to $10,000 for a simple mechanical device and take a long time, three years or more, to obtain. The question as to whether you should pursue a patent is a business decision. From the patent attorney's perspective, it is always a good idea to pursue a patent. From your perspective, you have you ask yourself some important questions: What kind of annualized profit can I expect with a patent? How many years, if ever, before the patent pays for itself? Are there non-infringing alternatives competing, or likely to compete, in the market-space? Will my product be obsolete before the patent issues? Will less expensive “trade secret” protection suffice?

The Patent Process.

The patent process involves meeting with a patent attorney to discuss costs and timelines. If you decide a patent is something you want to pursue, you may decide to do a patent search. You can conduct a cursory search at Google Patents. Your patent attorney is also available to perform a more comprehensive search. The next step is to draft the patent application. This is the most important part of the process. Here is where you determine the breadth of protection over your invention. It is at this point where a good patent attorney can make or break your patent. Once the application is drafted, your patent attorney files the application with the USPTO. After two years or so, the USPTO “examines” the application, comparing it against patents already in existence. Your patent attorney fights back and forth with the USPTO over the breadth of protection your application is allowed. If your patent attorney is persuasive enough, and your invention novel enough, the USPTO issues your application as a patent.

Finding the Right Patent Attorney.

You do not need the best attorney in the world. You need the best attorney for you. Finding the best attorney for you means looking at factors like cost, skill, experience and communication. As you might imagine, all patents are not created equally. Skilled patent attorneys with a lot of patents under their belts typically obtain better patents than more inexperienced patent attorneys. They also charge more. The best attorney for you however, is not necessarily the most expensive. Ask around. Search the internet for patent attorneys in your area. Go to the Web site and see how many patents they have drafted. Go visit with the patent attorney. If you like the attorney, confirm that he or she will actually be the one drafting your patent and not passing it off to an inexperienced underling. Ask if the patent attorney has had experience defending patents in court. Success defending patents in court, often translates into drafting better patents. The most important thing is to feel comfortable working with your patent attorney. There are a lot of patent attorneys out there. Keep looking. Pick the one who tells you what you need to know, rather than what you want to hear. You will know it when you hear it.

Brett Trout


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New Fines for Bloggers

Fines for Blog Reviews?
The Federal Trade Commission (FTC) has issued new guidelines (16 CFR Part 255), which have put advertisers, bloggers and other online publishers into a panic. The new guidelines took effect Dec. 1, 2009. They prohibit blog reviews that fail to disclose materialstockade connections between sellers and bloggers. Theoretically, under the new guidelines, a blogger could be fined $10,000 for failing to disclose that he or she received a free copy of a book reviewed for a blog post. As receipt of a free review is standard in the industry, the guidelines have bloggers justifiably concerned.

The Guidelines
The FTC does not have the power to make laws. What it does have is the power to enforce the very broad Section 5 of the FTC Act. In short, Section 5 of the FTC Act makes it illegal to involve oneself in any unfair or deceptive trade practices. The new guidelines state that the FTC will now begin pursuing certain endorsements and testimonials. On the testimonial side, “results not typical” will no longer be enough. You will have to state what the typical results actually are. Of greater concern to bloggers is the endorsement side of the new guidelines. The FTC will now be taking a much closer look at any social-media advertising messages, which consumers are likely to believe reflects the opinions, beliefs, findings or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.

Endorser/Seller Connections
The portion of the new guidelines that has bloggers up in arms is 16 CFR Section 255.5. If there is a connection between and endorser of a product and a seller of that product, and the connection is not reasonably expected by the audience, the connection must be fully disclosed. But what constitutes “connection,” “reasonable expectation” and “full disclosure”?

What long-time bloggers think are reasonable expectations, what their readers think are reasonable expectations and what the FTC thinks those readers think are reasonable expectations may very well be three different things. Bloggers take for granted that everyone knows the book they reviewed was a free copy. They assume everyone understands that when readers click on the picture of the book and get sent to Amazon to buy it, that the blogger receives a small percentage of that sale. It might surprise you, but most people don’t know that. What matters is your audience. If you write a blog about marketing for marketers, there is a good chance your readers understand these dynamics. If you write a blog about what happened on The View yesterday, your readers might not be aware of the compensation you receive in the form of freebies and affiliate links.

Fears Overblown
The FTC has come out and stated that fears over the new guidelines are overblown. The FTC states publicly that advertisers and bloggers are in no immediate danger of being sued or fined over the new guidelines. The FTC will focus on the most egregious violators first. Before suing anyone, the FTC will send a cease and desist letter. Violators who ignore that cease and desist letter, however, might be well-advised to compile a large sum of expendable cash and engage a good lawyer with lots of federal courtroom experience.

So Am I Good Until I Get the Cease and Desist Letter?
While the FTC states it has not present plans to bring federal lawsuits over inadvertent violations of the new guidelines, you do not want to be the focus of an FTC investigation. Once you come up on the FTC’s radar, you might be on it for quite some time. A more immediate concern might be state Attorney General enforcing soon-to-be state adopted versions of the new guidelines, often called “tiny FTCs.” These tiny FTCs mirror the federal guidelines, but often allow for state Attorney General or even private enforcement. Being on the business end of a tiny FTC lawsuit will likely cost your company far more than a federal FTC fine.

What to Do
Read the new guidelines, read the examples provided therein and do not try pushing the envelope, at least until the scope of enforcement becomes clearer. Did you get a free copy of the book you are reviewing? Disclose it. Did you get a free MP3 player that you reviewed and honestly liked? Send the free one back to the sponsor and go out and buy one. Do you get paid through affiliate links? Disclose it on every page, in clear language that does not require scrolling or clicking to read.

Follow and Adapt
Over the next year, a clearer picture will develop as to how the FTC and courts interpret the new guidelines and how Section 5 of the FTC Act applies to bloggers. Until that time, bloggers are strongly cautioned not to make themselves a test case. While the rest of us bloggers will certainly appreciate the clarity your sacrifice will bring to interpreting the new guidelines, we are all going to miss you.

Brett Trout

Virtual Parenting

What the Fork?

Video games harbor potential dangers to children. So do forks. The reason forks do not grab as many headlines is two-fold. First, all adults understand forks and ridicule those who use them to self-inflict injury. Second, parents, at least responsible parents, do not allow their children unsupervised access to forks until the children have demonstrated proficiency and responsibility with the utensil.  

Of Video Games and Virtual Worlds

Most parents are at least familiar with the concept of video games. Children play them against the computer, or against someone else in the room. Some video games allow children to play against people across the street or across the globe. The largest of these games create massive online environments for players to explore. These "virtual worlds" generate billions in revenue, some even allowing millions of people to play simultaneously. Each virtual world has its own set of rules and etiquette. Anonymous players create characters for themselves, and interact online with another anonymous characters. Communities gravitate around common interests, such as role-playing, first person shooters, real-time strategy, sports, social interaction, as well as many others. Two of the most popular virtual worlds are Second Life and World of Warcraft. 

What Are The Dangers?

Video games come with handy parental ratings to indicate how much blood, drugs and sex the child will encounter in the game. But what about virtual worlds? Players have sued, propositioned and even killed other players in real life as a result of events which took place in virtual worlds. What the media fails to report however, is that these incidents are incredibly rare. The Federal Trade Commission (FTC) has just released a report entitled Virtual Worlds and Kids: Mapping the Risks. Surprisingly, the report found very little sex or violence in virtual worlds accessed by minors.  

Why Are Virtual Worlds So Safe?

Most parents have little exposure to virtual worlds and legislators are often even more clueless. So why then are virtual worlds so safe? One reason kids are exposed to far less sex and violence in virtual worlds as compared to the rest of the internet is greed. Virtual worlds are for profit ventures. Main stream media constantly lurks for that one incident it can use to leverage every parent's fear of the unknown. As detailed in the FTC report however, virtual worlds invoke terms of service, age-screening, age segregation and community policing to prevent the exploitation of children. While it is not impossible for children to circumvent these security measures, there are far easier ways for children to access inappropriate content online, than through a virtual world.

In Loco Parentis

So if virtual worlds have their own screening system in place everything is good right? Wrong. Even though your child may not be exposed to sex, drugs and violence in a virtual world, they will be exposed to adults behaving like adults. The complex character interactions in virtual worlds are no substitute for parental instruction. Just like with a fork, it is your duty as a parent to investigate the games and environments your child frequents online to ensure that your child demonstrates the proficiency and responsibility to avoid trouble. Better yet, why not actually take a couple hours out of your week and join your child online. At worst, simply listening intently to your child describe to you an activity he or she loves will bring you closer together.  At best, you may create some indelible memories with your child. 

Brett Trout

The Perfect Gift for the Business Owner

Never Ceases to Amaze

As an intellectual property attorney, I see my share of online train wrecks. The train wrecks are usually business owners who thought the law was one thing when much to their chagrin, it turned out to be quite another. Many figure since there is no way to understand ALL of the laws governing online commerce, it is not worth the time to educate themselves about ANY of them. They learned out the hard way what a bad strategy that is.

80% of the Benefit for 20% of the Effort

The Law of the Internet is not only complex, but constantly changing. Even if you awoke knowing everything there was to know about Internet Law (which no one does), your warehouse of knowledge would be outdated by noon. It is no wonder business owners faced with such a Sisyphean task, opt to tumble blindly onward. Little do they know for about 20 percent of the effort, they can spot about 80 percent of the issues which cause the most grief to most business owners. You do not need to know how to solve every online legal issue to succeed. Being able to spot the usual suspects is often enough to keep your business out of hot water.

Handy Desk Reference

No one book will solve all of your legal problems. Actually, by itself, a book is not going to solve any of your legal problems. CyberLaw, however, might just give you enough information to steer clear of the most common online legal problems in the first place. Some business owners never realize that spotting the issues is half the battle. Spotted in time, you and your attorney can address most online legal problems and avoid their potentially catastrophic consequences. 

Cyberlaw Cover

Leverage the Opportunity

Many companies see the complexity of online legal regulations as a hindrance, while more savvy companies see it for the opportunity it presents. Understanding the why online laws are the way they are gives your company a leg up on the competition. You can expand your business more vigorously in areas of lax legal enforcement or where the law is well settled and pull back in areas of heavy enforcement or unsettled law. Most importantly, understanding the reasons behind the laws allows you to extrapolate your strategy forward. Where your competitors are busy digging themselves out of holes they never saw coming, you can be anticipating the changes two or three years down the road and reaping the subsequent rewards. If you know a slightly nerdy business owner who has been good this year, now is the time to reward him/her with a holiday gift that really will keep on giving.

Brett Trout

Trademark Your Name

Coca Cola Trademark VolumeImage by t-dawg via Flickr

Before It Is Too Late

Register your trademark. This is the best advice I wish I could retroactively give most businesses. By the time they come to see me, there is a problem, one which is often too late to fix. Protecting the name of your company with a federal registration offers major advantages. One big advantage is reducing the likelihood you will get sued by a company that did register its trademark. Another big advantage is preventing competitors from using your trademark to steal your customers.

The Process

The federal trademark registration process is relatively painless. Costs range from $800 to $2,000 or more, depending upon how unique your trademark is. The process takes between six and 18 months or more. If you are considering investing a large amount of money in your new trademark, it may be worthwhile to invest in a trademark search. Though the search will let you know of potential threats, in my experience, the trademark owners with the best claim of infringement are not always the ones who sue you. Until they come up with a who is the most litigious search, a standard trademark search is still your best bet.

Sooner, Rather Than Later

The federal trademark registration process has been known to put you in the cross-hairs of a previous trademark registrant. If your trademark is too close to another trademark,and you are going to have to change trademarks, it is much easier to change one that you have been using for six months than one you have been using for six years. In addition, paying six months of damages for your infringement is much less painful than paying for six years. If you get caught soon enough, trademark owners often decide the damages are too small to pursue and settle for you just picking a new trademark. Registering your trademark early also allows your mark to become "incontestable" sooner. This means that even if it turns out someone was using your trademark first, once your trademark has been registered for five years, your registration is immune to attacks based upon prior use.

Cheap Insurance

It is true there are trademark owners out there who have gone years without registering their trademarks. It is also true that there are thousands of businesses who don't realize their folly until they find themselves on the wrong end of a cease and desist letter. Surrendering the name your company spent years building into an institution would be devastating.  Watching your company to go under would be even worse, especially now that you know how easily it would have been to prevent. 

Brett Trout

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There is a new sheriff in town

Seal of the United States Federal Trade Commis...Image via Wikipedia

The Federal Trade Commission (FTC) has just issued new guidelines, which take effect Dec. 1. These guidelines prohibit commenting on products or services without revealing the compensation you have received.

Bloggers and others receiving compensation from affiliate links are justifiably concerned. Fines for violating the guidelines can total $10,000.

The FTC has stated it is more interested in education than fines. State laws modeled after the guidelines, however, often provide a private course of action. This can subject bloggers to lawsuits from disgruntled readers.

As always, the best defense is a good offense. Complying with the guidelines prior to the Dec. 1 deadline will keep you out of harm's way. At least until a court allows enforcement of the guidelines retroactively.

Brett Trout

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Get Ready For the Real Time Web

The Next Big Thing
In the past, when you wanted to find out more about a topic you would search Google, go to an informational Web site like Wikipedia, or read a blog on the subject. But what if you wanted more information about something that just happened, or about something that is constantly changing? In the past, you would have to wait for a major news organization to gather information, compose an article and post it online. This could takes hours before you get the information you need. RealTimeWeb

What is the Real Time Web?
Like the World Wide Web itself, the Real Time Web is not something you can hold in your hand. It is not a Web site or a piece of software. It is a system, much like the World Wide Web, of search engines and instant messaging. The Real Time Web combines all of these systems together to provide nearly instantaneous access to information. What if there is an earthquake in Indonesia, a bombing in Iran or a tsunami heading toward California? Even if there was someone with a cellphone witnessing and transcribing an event as it unfolded, it is unlikely you would be able to access this information for hours. Now, services such as Twitter act as a repository for real-time messages, providing you instant access to the most current information around the world. Using powerful search engines you can sort and compile exactly the real time information you need.

Why Real Time Web
How you use the Real Time Web is up to you. It may be as simple as supplementing your internet browser, as shown in the screen shot, to provide Real Time Web information along with your standard search results. It may be to completely immerse your company in the most current information about your industry. The Real Time Web allows you to locate clients, answer questions about your business and build a loyal following. You can research competition, consumer trends, product feedback and upcoming demand. The Real Time Web drops you right in the middle of conversations customers are having about your company right now. Joining the conversation benefits both your company and your customers. The only question is: How long are you going to ignore the conversation? How long is your competition?

Brett Trout

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Cut Your Legal Fees

What Your Lawyer Won't Tell You
Something you probably won't overhear your lawyer discussing is how the recession has dried up the market for legal services. Many lawyers, who only a year ago were working and billing at unprecedented levels, now find themselves scrambling for work. Large law firms around the globe are cutting staff and


dropping their hourly rates.  Law firms are cutting starting salaries and hiring fewer new lawyers. Lawyers are leaving larger firms to form smaller, more nimble, more specialized firms.  By specializing and increasing efficiencies, they can actually charge lower hourly fees, while earning more money for themselves.

Big Firm Problems

The problem with many larger law firms is they become bloated, stuck with a lot of dead weight. Stellar performers often leave larger firms, taking a core group of talented associates along with them. Over time, a pool of less efficient attorneys tends to accumulate. Another problem with big law firms is that they often require their attorneys to bill a minimum number of hours every year. In a difficult economy, it becomes harder and harder to meet these mandatory annual minimums.Ask your lawyer if he or she has a minimum number of hours they are required to bill. If your lawyer responds in the affirmative, consider whether that is an incentive you want your lawyer to have, in environment where your business is one of the law firm's steadily declining number of revenue sources.

Turning the Problem to Your Advantage
Inertia is a powerful force. If you have been with your law firm or a lawyer for a long time, it can be difficult to make a switch. In today's economic market however, cutting legal fees can be one of the most painless ways to bolster your company's bottom line. It simply can not hurt to shop around. Quality is obviously more important than hourly rate, but in a buyer's market you may be able to upgrade and cut costs at the same time. Ask other professionals you know for referrals and talk with some new attorneys. Most will be happy to meet with you to explain how their blend of expertise and hourly rates can meet your needs. Worst case scenario, you may end up with information you can use to convince your current attorney to cut the hourly rates they currently charge you.

Brett Trout

What's in a Name?

IBM Global ServicesImage via Wikipedia

What is Your Company's Most Valuable Asset?
If you said something other than your company's name, you are doing it wrong. Your company's name, or trademark, is your interface with your customers.  It is how you differentiate the quality of your goods and services from those of substandard competitors. Your name embodies all of the goodwill you have developed with your customers over the years. It is a promise to the customer of quality and value. Without a name, you company simply could not compete.

What is Your Trademark Worth?
Smart companies know the value of their trademarks. For companies like Coca-Cola and IBM, the value of their trademarks are measured in the tens of billions of dollars. For your company, it is measured in the value of your company above its tangible assets. The value of your trademark lies in your customer and vendor relationships, your credit history, your employees, the cost of putting it all together and ironing out the wrinkles. It is easy to see how the value of your company's trademark can easily exceed the collective value of all of your company's tangible assets combined.

Leaving Your Front Door Unlocked

You would never leave your company's front door unlocked overnight. You would never trust a stranger to deliver your bank deposits. But that is what companies do when they fail to take the simple steps necessary to protect their most valuable assets. Many companies elect to stick their heads in the sand and wait until a problem arises. The problem is, by the time trademark problems arise, they have often snowballed to an unmanageable size.

The Ugly Side of Flying Blind
By the time your company receives a trademark cease and desist letter or has its trademark stolen, it may be too late. The problem could be so severe, you may have to forget about saving your trademark and focus all of your resources on just saving your company from bankruptcy. If you picked your company's name without a trademark search, you may be infringing someone else's trademark, without even knowing it. All the money your company has earned under that trademark may have to be turned over to the owner of the trademark.  If you continue to infringe a registered trademark after you become aware of a potential problem, you may have to pay the trademark owner triple damages plus all of the trademark owner's attorney fees.

It Is Just As Easy to Do Things Right
Checking out the name of your company and/or the names of any new products is a relatively quick and painless process. Once you have vetted the name, you may wish to file for federal trademark registration. Unlike state registration, federal trademark registration affords national protection, triple damages, and attorney fees, as well as several other legal advantages. Probably the biggest advantage federal trademark registration provides is the increased likelihood that an infringer will back down, rather than force you into a lawsuit. Trademark attorneys typically provide a free initial consultation to explain their trademark vetting and protection services, along with the associated fees. Trademarks are your company's most valuable asset. The sooner you protect them, the less likely you are to experience a catastrophic problem down the road.

Brett Trout

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The Internet is a Legal Minefield

Watch Your Step
Moving your business online requires a lot of work. Hiring the Web site developer, tracking orders, updating changes, ensuring supply, collecting money, et cetera. One thing often overlooked is the legal ramifications of doing business online. While most business owners have a sense of what it takes to build a Web site and fulfill orders, very few have any sense of whether what they are doing will get them into legal hot water. Rather than learning what they need to do, they stumble blindly forward into the crowded minefield that is internet legal regulation.

The 80/20 Rule

The Law of the Internet is complex and constantly changing. Even if you knew everything there was to know about Internet Law (which no one does), your warehouse of knowledge would be outdated in hours. You can hardly blame business owners, faced with such a Sisyphean task, for tumbling blindly forward. I mean, "What good is a little knowledge?" Quite a bit as it turns out. For about 20 percent of the effort, you can learn about 80 percent of what you need to know, or at least where the most explosive online legal pitfalls lie. Understanding the remaining 20 percent requires 80 percent of the effort, but I would recommend this only to those playing Trivial Pursuit: The Pompous Patent Lawyer Edition.

If Only There Was a Some Kind of Map
Thankfully, there is.  Cyberlaw CoverCyberLaw: A Legal Arsenal For Online Businessis a great place to start. Its 19 chapters cover everything from employee use of e-mail, to document retention policies, to the top ten legal oversights that can shut down your Web site. It even includes forms and an index to use it as a handy desk reference. Many companies do not even realize they are moving into an online legal minefield until they are facing a lawsuit. By that time, the cost to extricate themselves from the lawsuit and get back on track can be more than the company is worth. Often, following the legal path is no more expensive than following the lawsuit path. Without knowledge of which path you are on however, the difference between the paths may only become apparent when a judge shuts down your company. Written in layman's terms, Cyberlaw is not legal advice, you still need your lawyer for that, but it is legal information, which allows you to make sense of your lawyer's advice.

Spot the Issues
"CyberLaw: A Legal Arsenal For Online Business" will not turn you into a cyberlawyer and, while it may eliminate your need for Ambien, it will not replace your lawyer. What it will do is offer you a map to navigate your company through the online legal minefield, steer away from catastrophe and identify potential problems before they spiral out of control. Cyberlaw helps you spot the relevant issues and ask the right questions. Understanding at least the basic principles of online legal regulation vaults you ahead of your less informed competition and may even afford you a little more restful sleep, knowing you have the map you need to guide your business out of the lawsuit minefield.

Brett Trout

Do I Need a Patent?

Dolbeer "Logging Engine" Patent 256,553Image via Wikipedia

What is a Patent?
A patent is a document which allows you to prevent anyone else from making your invention. There are different kinds of patents: plant patents, design patents, provisional patents and utility patents. The patents most people are familiar with are utility patents. These patents cover new, useful and non-obvious products and methods.

Not all Patents are Created Equal
The value of a patent depends upon many factors. A "broad" patent covers not only the invention, but a wide swath of alternatives as well. A "narrow" patent may be easily designed around by changing one or two aspects of the invention. The breadth of a patent depends upon several factors: the novelty of the invention, the similarity of items already made public, the cooperation of the government patent examiner and of course, the skill of the patent attorney. A great patent attorney is not going to be able to make a silk purse out of a sow's ear, but a bad patent attorney can certainly work that magic in reverse.

Patent Pros.
A good patent provides you a monopoly in your marketplace. Items with a high markup are especially well-suited for patent protection. Without a patent, the market would simply drive the price of the product down to just above the cost of manufacture. Even while the patent is in the "pending" stage, you can sell your invention, while your competitors are kept at bay wondering what your patent may or may not cover. You can also sell or license your patent rights to a third party in exchange for a lump sum and/or a royalty stream. Patents can last for up to 20 years from the filing date.

Patent Cons.
Patents are expensive. Even patents on simple machines can end up costing $9,000 or more over the course of the application process. The application process can be lengthy, often taking three years or more. It can be very expensive to defend your patent. Unless you can find an attorney to defend your patent on a contingent fee basis, you may have to spend several hundred thousand dollars to have your day in court. As the infringer faces similar costs, patent infringement cases are far less likely to go all the way to a jury than many other types of disputes.

Do You Need a Patent?
This is a question only you can answer. A patent attorney answers this question from the perspective of whether the patent attorney could use an additional $9,000. You answer the question from the perspective of knowing your business better than anyone else. Where patent attorneys can help is in offering advice (often at no cost) to guide you through the questions you need to ask yourself. What kind of annualized profit can I expect with a patent? How many years, if ever, before the patent pays for itself? Are there non-infringing alternatives competing, or likely to compete in the market-space? Will my product be obsolete before the patent issues? Will less expensive "trade secret" protection suffice?

Get the Facts.
Once you have the facts, the question boils down to a business decision, unique to your company. A patent by itself is not going to generate income. You still need a great invention and marketing plan. Many times patenting an invention is not the right answer. Get the facts before your invention falls into the pubic domain and you lose your right to patent your invention at all. 

Brett Trout

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The Downside of Firing Social Networkers

Voices #62Image by eclectic echoes via Flickr

The Problem
According to the Des Moines Register, in the past year, several workers have been fired for posting unauthorized material to various social networks. The latest case involves a Casey's General Stores employee fired for posting material to YouTube. While the original postings were tame, after she was fired the employee posted a much more incendiary video to YouTube. While the repercussions of inappropriate material can be problematic, mishandling of the matter can cause the problem to snowball out of control. The key to managing company-related online activity by employees involves putting a plan in place before a problem arises.

The Solution
Understanding social networks is a key first step. Not everything employees post online about your company is bad. Learn how proactive social networking can not only help identify potential public relations issues early, but can also promote your company. Once you have a handle on social networking, develop an employee policy relating to online activities which relate to your company. Employees are willing to refrain from certain online activities if you advise them of written policies up front. Reprimanding them after the fact can lead to problems.

Starting the discussion with employees will help identify people with a natural inclination toward online public relations. You may wish to enlist these individuals to monitor social networks, advising you of any potential threats or opportunities. Start slowly at first. Be prepared for problems. Running social networking point for your company is not for the online-illiterate. It may take even a social media maven    weeks or months to find your company's social media "voice."

In additional to drafting a written policy regarding employees' online activity as it relates to your company, keep an open line of communication with your media savvy employees. Blindsiding employees for things they did years ago, or reprimanding them for things they believed were actually helping the company is a lose-lose scenario. Many times, rash action does nothing more than direct all of the employees social media moxy toward destroying your company's online reputation.

Brett Trout

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Leverage Social Media Before It Is Too Late

NEW YORK - DECEMBER 08: Paul Costiglio, a mar...Image by Getty Images via Daylife

The Problem
There are two kinds of companies doing business online: 1) those that have had an online public relations problem; and 2) those about to
have an online public relations problem.  Whether it is a disgruntled customer, a security breach or some other unintentional blunder, any public relations problem has the ability to snowball out of control. Ignoring or mishandling the problem often makes things worse. Once the problem reaches a critical mass, it may become too big for a small, or poorly positioned, company to recover.

The Solution
Social media is the perfect tool for not only identifying potential public relations issues early, but for turning them into a platform for showcasing your great customer service. Using social media as a radar to identify and address customer concerns early can save headaches down the road. Generating an evangelical social media following expands both your reach and message. If a catastrophic problem does occur, social media followers often come to a company’s rescue, solving problems hundreds of thousands of dollars and a courtroom of lawyers could not. Most importantly, transparent use of social media may cause a customer to contact you directly, before airing grievances online. Your social media solutions however, must be in place long before a problem arises. The key is in understanding social media, and implementing a coordinated social media initiative sooner, rather than later.

Brett Trout

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Don't Tell Twitter Your Vacation Plans

The Good With the Bad
Twitter, blogs, message boards, Facebook, LinkedIn and other social media platforms are great ways toBlog connect with large groups of people. Transparency, being open about who you are and what you do, has many advantages. It generates trust. It builds relationships. In addition to the benefits openness provides, it also has dangers. Knowing what these dangers are and how to protect yourself, your home and your family, is not difficult and may just keep you from becoming the latest victim.

Dangers of Over-sharing
Everyone knows posting confidential information to the Web is an identity theft waiting to happen. Thieves will do whatever they can to get your valuable information, but did you know even disclosing your location could lead you to become a victim? Last month Israel Hyman, (Twitter handle @IzzyVideo) posted on Twitter that he and his family were on vacation in Kansas City. He also set up his Twitter account to automatically update his Facebook status with that information. After his family vacation, Mr. Hyman returned home to Arizona only to discover he had been burglarized, with thousands of dollars of video and computer equipment gone.

How Did It Happen?

In addition to Mr. Hyman's 2000+ Twitter followers, anyone could have logged onto Twitter to check his status. Once they know you will be away, thieves do not need much to find your home. A name, a cell phone number, a Web site address (which they can check for contact information) or a picture may be all they need to connect your "I'm on vacation" post with a Google Map to your home. So what can you do?

Think Before You Post
The solution is not to stop interacting online. The solution is simply to think before you post. Refrain from posting outside your closest network of friends things like: "I'm home alone" or "I'm working late." Also, continue to post while on vacation. Posts from your friends, such as "Has anyone heard from Jane? She has not posted for days" are cues that your home may be vacant.

Stay in Touch
If you are online, your network of contacts is actually your best defense against becoming an online victim. More than likely, someone in your network will be the first, not only to alert you to potential threats, but to tell you how to protect yourself from them. If you are a real glutton for punishment, and need all the latest information about cyberlaw and online threats, feel free to follow me on Twitter @BrettTrout

Brett Trout

What is the Difference Between ®, TM and SM?

An example logo using the service mark.Image via Wikipedia

Your company has a trademark, but what do you know about it? Does your company use one of these symbols with its trademark: ®, TM and SM? Are they required? Does it matter?

What is a Trademark?
A trademark is a word, name, phrase, symbol, color, scent or sound used to identify particular goods or services as coming from a particular source. Unlike domain names, you have no rights to a trademark until you actually use the trademark in commerce. "Naked" trademarks, which are not used in association with the sale of any good or service, are not allowed. Trademarks are also limited to a particular good or service. One company may own "Apple" for computers and another company may own "Apple" for records. As long as there is no likelihood that consumers may be confused that the goods come from the same source, identical trademarks can coexist for different types of goods or services.

Trademark Registration
Simply using a unique, non-descriptive trademark in association with a good or service is all you need to obtain common law rights to that trademark. With common law trademark rights, you can stop an infringer in your market area and obtain damages associated with the infringement. But you cannot get punitive damages or attorney fees. State trademark registrations extend common law rights to the borders of the state, but that is about it. As state registration typically afford little more protection than common law rights, most companies seeking trademark registration opt for federal trademark registration.

Federal Registration
Federal trademark registration is much harder to obtain, and more expensive than state trademark registration. A federal trademark registration may cost $1,200+ and take 18 months or more to obtain. Once you obtain your federal registration, you can use that registration to pursue infringers in any state, regardless of whether you are currently marketing in that state. In addition, if you can show the infringement was "willful," federal trademark registration allows you to collect triple damages and attorney fees.

® refers to a federally registered trademark. Alternatively, you may use "Registered, U.S. Patent and Trademark Office"  or "Reg U.S. Pat & TM Off." to designate your federal registration. You may not use (R). Failure to properly mark your goods or services, limits your ability to collect profits or damages from an infringer who had no notice of your registration.

TM and SM
TM refers to a state or common law trademark, typically associated with goods and SM refers to a state or common law service mark, typically associated with services. Anyone can use TM or SM. There is no registration required. TM and SM simply mean the user thinks they have a defensible trademark, and may or may not pursue you for infringing it. One thing to consider. If they did not have the $1,200 to pursue a federal trademark registration, how likely is it that they will pay the cost of a lawsuit, especially with no chance of recovering attorney fees. Watch out though. They may just be using TM or SM while their federal trademark registration is pending.

Why Get a Federal Trademark Registration?
Only a federal trademark registration holder can use ®. Use by anyone else, even someone who has merely filed an application, but not yet received the federal registration may be subject to a lawsuit for fraud and false advertising. Additionally, using the ® without a federal registration in hand may prevent you from ever getting a federal registration. Federal trademark registration allows you to recover your attorney fees and up to three times your actual damages if the infringer was "willfully" infringing your trademark. This means the infringer may be liable for ten times or more the actual damage caused. As you might imagine, the ® serves as a pretty aggressive warning to infringers. The best part about the ®, is that it dissuades most would-be infringers without you ever having to lift a finger.

Brett Trout

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Top 10 Things You Need to Know About Digital Natives

Who are Digital Natives?
Digital Natives, a term coined by Marc Prensky in 2001, refers to anyone born after 1980. By age 20,Blog Digital Natives will spend 20,000 hours online. Everyone else, including your humble narrator, is classified as a Digital Immigrant. Even though we, as Digital Immigrants, created the current technological environment, we consistently cede ground to Digital Natives. Their takeover of the entire digital landscape is manifest destiny. Thankfully, they seem to know what they are doing. Before the transformation is complete, it might be wise to understand what motivates this new digital ruling class.

10) Transparency
As Digital Immigrants, we are wary of thieves, idiots and con artists. We never lay all of our cards on the table at the first meeting. We get to know you, we find out about you, then we trust you and tell you about ourselves. It is a slow process, but one which avoids inadvertent entanglement with a disreputable partner. Digital Natives lay everything out for the world to see. They are radically transparent. From blogs, LinkedIn, Facebook, YouTube and myriad other sites kept from prying eyes of those over 35, anything you (and the rest of the world) want to know about a savvy Digital Native is out there. The Natives want you to know as much as possible about them before they meet you. Throwing everything online allows digital vetting. If the Digital Native is a thief, a scammer, a liar or even just an idiot, the harsh voice of the digital vox populi, so the theory goes, will surely expose these warts. Placing everything online has the risk of alienating potential contacts that may not like your views on politics, religion et cetera. Online exposure also attracts the matches who are attracted to this 21st century curriculum vitae.

9) Play in Their Work and Work in Their Play
Digital natives want jobs that are fun ... not necessarily jobs which everyone sees as fun, but jobs which they find personally enriching. They are more amenable to working longer hours for lower wages if they do something they love. Working at something they love, they tend to excel, often expanding their jobs into new areas which they themselves discover. In play, Digital Natives are drawn toward social activities involving large diverse groups. They often see activities as forums for learning and fostering their networks. While open salesmenship is rare, they come with questions and ideas which Digital Immigrants avoid discussing outside of a signed non-disclosure agreement. Natives key in on being a valuable part of an enriching community, at work and at play.

8) Quantity over Quality - Speed over Accuracy
That is not to say Digital Natives do not care about quality or accuracy. Having been weaned on spin doctors, Digital Natives are actuely aware every source comes with its own bias. Digital Natives  constantly receive information from dozens of sources, including text messages, e-mails, phone calls blogs, social networks and even archaic media such as television. They process information an inch deep and a mile wide, until they find what they seek. Digital Natives often scan, sift and digest more news in an hour than Digital Immigrants process in a week. Receiving as much information, as quickly as possible, from the most reliable sources, Digital Natives are confident in their abilities to separate fact from fiction.

7) Say No to Negativity

As a lawyer, this has been the hardest aspect of Digital Natives for me to understand. From a young age, my siblings, friends and schoolmates assisted my development by sarcastically deriding any perceived error. I quickly discerned the rhyme and meter of this dance and am able to differentiate bullying, constructive criticism and fear of new ideas. This skill I honed to a razor's edge in law school and the subsequent practice of law. Bringing my adroit verbal rapier to bear on Digital Natives however, yielded  unexpected results. They were raised in a different age. Not better. Not worse. Just different. I never received a participant trophy when I was young. If I had, I would have hid it from anyone whose opinion I valued. Conversely, most Digital Natives were raised on constant positive reinforcement. Negativity was viewed ... negatively. Far from making them whiny and lazy, this background has made them open and collaborative. Saying "no" is anathema without providing an alternative solution. Ideas are no criticized, but instead repeatedly stripped down and built up until they either stand on their own or fail. As a result of this process, even ideas which lead to failure are seen as a positive.

6) Failure is a Gift
Digital Immigrants wore failure as a scarlet letter, going to lengths to avoid it or pin it on someone else. Digital Natives view failures as merit badges, things they need to discover before they eventually reach their goals. They know failures teach them things no one else knows, giving them an advantage over any unschooled competition. The most remarkable Digital Natives share stories of their unique failures within trusted groups, not as a form of commiseration, but as a form of advanced learning, giving and receiving gifts not available from any other source at any price.

5) Create or Die
Content is the new commodity. To Digital Natives, it determines who you are and what options you have. Whether it is YouTube videos, ebooks, blog posts, tweets or a string of successful startups, your reputation and your worth are judged by what you have created. While someone with an extensive scholarly background may have the chops to take a company to the next level, to a Digital Native, they are at a competitive disadvantage with a high school dropout who has successfully replicated the implementation at four other companies. Digital Natives are more concerned with their ideas taking root, than in actually receiving compensation for the idea. If they come to an impasse with their idea, they put it out for the world, with the hope that others add and subtract from the idea until it becomes viable. Creating content brings people of a like mind together. The more ideas you have, the more opportunities you have to stand on the shoulders of giants and see your ideas through to fruition. 

4) Technological Bulimia
Aware that the amount of valuable information available to them far outstrips their ability to process all of it in a thousand lifetimes, Digital Natives are constantly on the lookout for the latest technology to assist them in processing ideas more quickly. They crave technology not for technology's sake, but as a tool to assist them in getting from point A to point B better, faster cheaper and easier.

3) Collaboration as a Culture
Collaboration outside of one's business was anathema to many Digital Immigrants. "I worked hard, and paid my dues to obtain this information. Why should I give it away for free?" Digital Natives see things differently. "If I give one valuable piece of information to five intelligent people, I will probably receive at least three pieces of valuable information in return." Sure, there are those who try to take advantage of the system, always taking and never giving, but with the speed of information transmission, these individuals are quickly discovered and cut off from future collaboration.

2) Follow Leaders of Trusted Tribes
Digital Natives are more blind to stereotypes than Digital Immigrants. Ignoring borders, language, age and culture, Digital Natives flock to influencers capable of providing the best information at any given time. As a shortcut to determining who is the most trusted influencer, Digital Natives look at who else is looking to a particular individual for advice. In this case, it is quality over quantity of followers. Ashton Kutcher and Sean Combs each have over one million followers on Twitter. Despite their followings, however, they are less influential in that arena than people like Pete Cashmore or Michael Arrington. Despite having fewer followers, the latter two individuals have influential followers and are, therefore exponentially influential. Discovering who a Digital Native trusts provides a wealth of information about who they are and where they are going.

1) Balance

The Holy Grail for a Digital Native contains a balance of friends, family, work and play. If you find a way to help them achieve this balance, or better yet combine these goals, you will see what Digital Natives can truly acheive.

Digital Natives are not "slackers." Just the opposite. Most work long hours for little pay when pursuing an activity they love. The key is finding out what there is for them to love about you and your company. Understanding their goals, and incorporating them into your business strategy, may translate what you previously dismissed as a liability, into one of your company's most valuable assets.

Brett Trout

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Social Networking Yourself Into Identity Theft

Identity Thieves Getting Smarter
Identity thieves are savvy. They learned long ago that obvious grabs for your personal information garnerBlog far fewer suckers than a more subtle grift. One of the more recent inventive schemes is abusing social networks by turning the scam into a game. According to PC World's blog, scammers are now leveraging your friends to learn answers to your online security questions. 

The Game
The scam involves a game which asks you to post your "Twitter Porn Name." Your Twitter porn name, according to the rules, includes combinations of your first pet's name, your mother's maiden name and the street you grew up on. Not surprisingly, this information likely contains the answers to the security questions needed to access one or more of your online accounts.

The Scam

With this information, scammers can, posing as you, contact various these various Web sites and indicate they have forgotten your login information. When presented with your security questions, the scammer uses your Twitter porn name information to gain access to your account. According to What the Trend, the scam can also be used to scare people into visiting another Web site for more information about the scam, thereby increasing ad revenue for the site.

The Solution
Social media is designed to be a fast-paced exchange of ideas. Scammers exploit this feature to their advantage. Do not get caught up in the moment. Always think before you respond. Be wary of any request you receive for personal information, even if the request comes from a trusted friend. Although most requests are likely genuine, it only takes a single scam to cost you thousands of dollars and years of headaches.

Brett Trout

Media Interests Now Dictating To Two Branches of Government

Big Media Extends Its Reach
Apparently, not content bullying lawmakers into killing Net Neutrality and throttling the Internet before the public gets wise, Big Media has turned its attention toward the courts. The International Federation of the Phonographic Industry copyright laws goes unpunished. So where is the problem?
Old Dog New Trick
Copyright laws were written long before the Internet came into its own. This means that lawmakers never considered things like iPods or downloading music. Thankfully for Big Media, courts have been rather generous in interpreting old copyright laws to cover new activities. Even though the original drafters of the Copyright Act never could have anticipated people would be uploading music to the Internet, courts interpret this new activity to be an infringement, even under the old laws.

Losing Trust
Problems arise as the activities become more and more attenuated. What if you merely own the computer used to download the music? What if you know your roommate is downloading music, but take no steps to stop him or her? Ostensibly, laws are written to inform people what they can and cannot do. When courts start applying laws to activities far outside the scope of the law, innocent people go to prison and the public ceases to respect the rule of law.

The Pirate Bay
The Pirate Bay is a Web site which stores the location of file fragments stored on personal computers all over the world. These files may be music files, documents, video, et cetera. If someone wants a copy of a music file, instead if downloading the file from one computer, a user can use The Pirate Bay tracking system to locate fragments of the file located on various other computers and download all of the fragments simultaneously. Despite not actually downloading, uploading, transmitting or storing any infringing files itself, the Web site has been accused of being "one of the world's largest facilitators of illegal downloading."

The Trial
On Feb. 16, 2009, Swedish prosecutors haled The Pirate Bay's principals, Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde, into court. Within two days, the prosecutor dropped half of the charges. Within nine days, the trial was over. The defendants all admitted what they had done, but staunchly maintained their innocence, contenting no law prevented them from doing what they had done. Applying the evidence to the law, the public and the defendants felt comfortable they would be acquitted of all charges.

The Verdict
Not only did Judge Tomas Norström not acquit the defendants, he sided with record industry cronies, handing down Draconian sentences of one year in prison and a $3.5 million fine. The verdict shocked the online community. The IFPI however, was likely less than surprised.

The Judge
Not only was judge receptive to the claims of the IFPI, he was in league with them. Judge Tomas Norström was a member of several pro-copyright plaintiff organizations, including the Swedish Association of Copyright (SFU), the Swedish Association for the Protection of Industrial Property (SFIR), and the SE (The Internet Infrastructure Foundation). Notwithstanding, Judge Norström unilaterally determined his affiliation with these organizations did not constitute a conflict of interest. Ironically, Judge Tomas Norström actually recused one of the original lay judges on the case, when it was discovered the lay judge had been involved with a musical rights group.

The Problem
While the short term effects of this case may by minor, the long term effects are devastating. Even the appearance of impropriety in imprisoning innocents at the behest of corporate interests cannot help but irrevocably undermine the public's faith in the judicial system. Even though this case occurred in Sweden, it sets a dangerous precedent. According to Rick Falkvinge, leader and founder of Sweden’s Pirate Party, "The copyright lobby has really managed to bring corruption to Sweden" with the judge's actions reflecting “corruption on a completely unforgivable level.” How long before this case emboldens similar interests to take action in the United States? Once corporate interests are allowed to use old laws and tough cases to improperly convince judges to make bad decisions, the rule of law is lost.

Brett Trout

All Media Is Social Media

Social Media
"Social Media," a buzz word for several years, has resurged with platforms like Twitter. What is Social Blog Media? Broadly defined, Social Media is any form of interactive communication. Under a more narrow interpretation, Social Media is an Internet arena where people share, rather than sell. Purists do not consider radio, television, conversations and daily activities to be social media. Regardless of the definition, all media has the potential to become Social Media.

Becoming Social Media Star
One way to become a Social Media star is to work hard, for a long time, investing a lot of money and be lucky enough to originate an idea the rest of the Internet finds clever. A faster way to Social Media stardom is to make a mistake. Social Media is often served with a side of Schadenfreude, so the bigger the mistake the better. A recent example involves the firing of three local radio personalities from KNXO radio. The situation involved on-air radio personalities who believed, incorrectly, that during a commercial break their profanity-laden tirade was not being broadcast. The novelty of the situation transformed it from "regular" media to Social Media overnight. The incident instantly became fodder for comments on Twitter and Facebook, as well as the subject of a YouTube video with over thirty thousand views. Obviously, it is preferable to define your corporate brand via Social Media before Social Media defines your brand.

Not "If," but "When"
If your company has not yet inadvertently become the subject of Social Media, you are either small, have nothing to do with the Internet, or you are simply not listening in the right places. Becoming the subject of Social Media is not bad. In fact, it is usually good. Good or bad it is important to know what is being said. If what is being said about your company on Social Media is good, leverage it. If it is bad, turn it around before it spins out of control.

Action Plan

The first item on your Social Media action plan should be do something. Social Media moves quickly. If you wait, it is unlikely your solution will overtake the problem. All media is social. Act like everything your company does is potential fodder for Social Media. It is. At its most basic, your Social Media plan should include monitoring your company's name on social media sites like Twitter for potential problems. You should implement a Google Alert to email you whenever something on the web mentions your company.  You may also wish to select some blogs which discuss your industry and set up an RSS feed to deliver recent posts directly to your computer. Addressed early, many potential problems can be converted into opportunities to impress the online community with your attentive customer service.

Being Proactive
A passive approach to monitoring Social Media should be a part of every business. The next step, proactively producing social media, is not right for each company. The last thing you want to do is create problems. If you decide to enter the Social Media field, your company should have a written policy outlining your company's expectations of employees engaging in Social Media and other online activities. Simply opening this line of communication can avoid future headaches.

Friend or Foe
Many companies use Social Media to develop strong ties with customers. Others leverage Social Media to monitor the competition or protect intellectual property. The key is to be sure that what you do in Social Media will have the intended effect. Social Media leverages your voice. You can use it to increase the reach of your brand or destroy years of goodwill overnight.

Make a Plan
Develop a game plan before embarking upon any course of action. A wildly successful Social Media business model for your competitor may not fit you. More importantly, Social Media customers are savvy. They do not want a Social Media clone of your competitor. Start slowly. Use Social Media to develop your company's unique voice. Use Social Media to listen to your customers and exceed their expectations. Soon you will these ideas seeping offline and into your business. Done right, Social Media will make your business bigger AND better.

Brett Trout

HT: Christine Branstad, Esq.

Teenagers 'Sexting' Their Way Into Trouble


Sexting is the latest phenomenon getting teenagers into trouble. It can lead to shame, humiliation, Blog cyberstalking, bullying, felony criminal charges, sex-offender registration and even suicide.  Sexting involves sending lewd text or pictures electronically to someone over a mobile phone or computer. Sexting often starts with a teenage girl sending a nude or semi-nude picture of herself to a boyfriend. Once the relationship sours, the boyfriend sends the picture on to friends, causing the girl to experience humiliation and unwanted advances. As with anything transmitted online, once a lewd photograph is released into the wild, there is very little chance of stemming its viral dissemination.

Legal Ramifications

The punishment for sexting depends on the age of the victim. If the pictures are of someone over 18, the person resending the pictures typically is not violating any laws, leaving the victim essentially helpless. If the pictures are of someone under eighteen, however, anyone possessing and/or resending the pictures may be subject to felony criminal charges and/or registration as a sex offender for child ponography.

Bigger Than You Might Think

Recent studies have shown up to 20 percent of teens have engaged in sexting and up to 40 percent have been asked to send nude photos of themselves. As with many things, teenagers often to appreciate the full ramifications of sexting until it is too late. Ramifications include imprisonment and even suicide. The key is educating teenagers before a problem arises.

Who Is At Risk

Any child with access to a digital camera or cell phone should be warned about the ramifications of not just sexting, but of sending anything online they would not be comfortable sharing with their parents. Things they post today can come back to haunt them years, or even decades down the line. It may get them bullied, fired, imprisoned or worse. Even if your child does nothing but receive an inappropriate message sent by someone else, they may be charged with child pornography.

Talk To Your Children

Advise your child early of the problems and the lifetime consequences of such behavior. When it comes to sexting, an ounce of prevention is worth several tons of cure.

Brett Trout

Top 10 Ways to Get Fired By Your Lawyer

Fired by your lawyer? Seems like an odd concept. Won't a lawyer take any client willing to pay? Indeed some will. The best ones will not. Life is simply too short.Blog

If you treat your lawyer like a commodity, you run the risk of losing the most important part of the attorney/client relationship. Even if you think you only need the lawyer for a single project, there are certain things you, as a client, can do to sabotage the relationship:

10. Lie to your lawyer. This is the number one thing you can do to get your lawyer to fire you. Your lawyer is your representative. Every case has its warts. Your lawyer can only help you if he or she knows the whole story. If you lie to your attorney, or fail to disclose pertinent information, by the time the lawyer finds out from the other side, it is often too late.

9. Ask your lawyer to lie for you. Contrary to what you might have seen on television, it is rare for an attorney to lie. Skilled attorneys pride themselves on finding equitable solutions within the law. Asking your lawyer to lie speaks volumes about you as a client.  If you ask your lawyer to lie for you, it is unlikely you will get a second chance.

8. Slow pay. Failing to pay your bill within 30 days of the invoice is no guarantee your lawyer will fire you, but it certainly does not help. If you have a concern about the bill, contact your lawyer immediately to discuss it. If you wait until your lawyer contacts you, it is more likely that your lawyer will view a dispute as a delaying tactic, rather than a genuine issue with his or her services.

7. Nitpick the bill. This does not refer to genuine fee disputes. Your attorney should clearly explain and itemize work on the invoice, but all lawyers occasionally make mistakes. Most good lawyers are eager to discuss and remedy fee issues.  If you consistently have issues with your lawyer's bills however, it is likely time to find a new lawyer.

6. Throw common courtesy out the window.
Believe it or not, lawyers are people. While you are by no means required to sit through stories of your lawyer's new puppy's bladder infection, and certainly should not be charged for it, the more you treat your lawyer like a human being, the more likely you are to receive better service.

5. Call your lawyer after hours. While I receive calls after hours, it is almost always a genuine emergency. If you you discover a genuine problem after hours, your lawyer should provide some way to contact him or her for immediate advice. There are no hard and fast rules regarding after hours contact. Some clients, by the very nature of their business, require more after hours assistance. Fortunately, it should be fairly apparently from the tone of your lawyer's voice, whether or not you are abusing this privilege.

4. Demand everything immediately. Some types of businesses require immediate action on a lot of projects. If you have one of these businesses, make it clear from the start of the attorney/client relationship. Your lawyer may suggest an alternative fee arrangement for expedited service. At the very least, avoid violating any of the other nine items on this list to keep the relationship on good terms.

3. Be difficult to contact. Your lawyer receives a lot of time sensitive information on your behalf. Nothing is more frustrating than losing a great opportunity for a client just because the lawyer could not reach the client in time to capitalize. You end up spending more money for a worse result, leaving everyone unhappy.

2. Hold everything to the last minute. If you anticipate having to request your attorney doing something at the last minute, let them know so they can make room in their calendar. One last minute request is not going to sour a relationship, but if it starts to become a habit, your lawyer may decide to end the relationship before your next eleventh hour request comes 59 minutes too late.

1. Ignore your lawyer's advice. Lawyers are not always right. If you do not agree with your lawyer, tell him or her so. If you want to proceed along a different path, a good lawyer should be able to lay down the best strategy for this new approach. If your lawyer believes you have agreed to pursue one course, however, and you unilaterally pursue another, this is a warning sign for any attorney that large problems loom just around the corner.

Other than lying to your lawyer or asking him or her to lie for you, it is unlikely that violating one of the foregoing rules will get cause your attorney to end the relationship. These are not hard and fast rules. If the violations stem from the nature of your business and/or you are an otherwise good client, most attorneys will overlook most of these issues. Unfortunately, once you have pushed too far, it is unlikely the relationship will ever recover. All too often, clients do not realize what they have lost until they go looking for a replacement. If you think finding a good attorney is hard, try finding one after being fired by your last attorney.

The key to any attorney/client relationship is communication. Open and honest communication (on both sides) is key to getting the most out of your lawyer. Remember also, this is not a one-way proposition. It is just as easy to turn the foregoing rules around. If your lawyer is the one violating any of the foregoing rules, talk to them about it immediately. More than likely, agreement can be reached to avoid problems in the future. If not, you, rather than the attorney, may be the one doing the firing.

Brett Trout

The New Improved Internet - 200 Web sites, only $79.95 per month

I just had a discussion via Twitter (@BrettTrout) regarding Net Neutrality. The conversation revolved around ESPN's proposal to charge Internet Service Providers (ISPs) for access to online video. "What is the harm in this?" the argument went, "isn't that what the cable companies already do? I pay for MTV and CNN in my basic package, whether I watch them or not."

Cable television is the perfect analogy. If ESPN has its way, the Internet may indeed become exactly like cable. You get a basic package allowing you access to a few hundred websites. For a few extra bucks, you can access a few hundred more. And the remaining hundred million or so other websites? To visit those websites, all you will have to do is move to a country which had the foresight to guarantee Net Neutrality before it was too late.

What? I will only be able to access a few hundred Web sites? That is impossible. That could never happen. The Internet will always be free. Won't it?

Well campers, it is not only possible, but the longer we sit on our tails the more probable it becomes. From the prospective of your ISP and large Web sites, the cable paradigm is much more profitable than what we presently have. If they pare down your access from one hundred million Web sites, to a few hundred, several things happen:

1) These few hundred Web sites will be able to charge enormous amounts for advertising.
2) Some will be able to "kick-back" a portion of this increased revenue to your ISP in exchange for carrying those now extremely profitable websites. 
3) Other websites, like ESPN, will be able to invest this revenue into producing more desirable content for which they can actually charge your ISP a premium.
4) Your ISP passes these additional costs on to you, either in the form of increased monthly fees, increased advertising and/or requiring you to pay for access à la carte.

These few hundred Web sites make more money, your ISP makes more money, and you get left holding the bag. You pay more, for much much less. The worst part is that by the time you realize that there is a problem, it will be too late.

Can you imagine approaching lawmakers with the following pitch: "There are thousands of free video channels out there which cable subscribers would like to access through their existing cable connections. Why don't we pass a law that cable companies have to allow us access to any free video channels willing to plug into their cable system?" Regardless of how great this would be to consumers, or how little it would cost cable providers, you are never going to convince a lawmaker to legislate against an industry pumping millions of dollars into the political machine.

Conversely, if voters act before a system gets set in stone, we may have had a chance. All it takes is for your congressional representatives to vote "YES" on a Net Neutrality bill. Consumer advocates are strongly in favor of such a law. President Obama has even made it one of the priorities in his first year in office:

The only question is who is going to win the race for control of your Internet access. Are you going to convince your lawmakers to protect your access to the entire Internet?Or are you going to allow 800-pound gorillas and ISPs to conspire to irreparably change the face of the internet forever?

To find out more about what you can do to maintain fair and free access to internet, visit SaveTheInternet and the Open Internet Coalition. I would advise checking back here frequently for updates on the issue but if you fail to act soon, you may not have a Web site to come back to.

Brett Trout

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