Worry About Internet Law Because . . .

CyberLaw: A Legal Arsenal For Online Business




 

This is a tiny fraction of the laws regulating online commerce. So, how should a company avoid so many pitfalls?


Cyberlaws breed like rabbits. After a decade of uncontrolled evolution, the expansion of cyberlaws has created a Darwinian pond, so full of complex online laws no company is able track them all. Not knowing the laws makes orchestrating a three-year plan an exercise in futility.

 

Selling your Board of Directors on a costly, time consuming, comprehensive online risk management plan is difficult. Estimating a return on investment based upon the value of not losing the farm is a formidable calculation.


A more palatable way to tackle the problem of online risk is piecemeal. Grab the lowest hanging fruit first. Form a committee to tackle the next most cost effective cyberlaw issue each quarter. Before you realize, (hopefully before you are sued) your company will implement a customized, comprehensive system to address online risk.

 

In upcoming posts, I will, through an equally incongruous mix of metaphors, address issues that are easy to address, but if left unchecked have potential to bring your business to a grinding halt.


 

 

Brett Trout

Published by: Brett Trout on August 22nd, 2008 | Filed under cyberlaw
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TrustyPig - A Webjacker Gets Pwned

 

Webjacking is the illegal practice of stealing a legitimate website’s design and confusing potential customers into believing they have stumbled upon the legitimate site. Once at the bogus site, the webjacker may extract confidential information from the visitor, infect the visitor’s computer with a virus and/or redirect the visitor to advertisers (often pornographic websites) which reimburse the webjacker for the redirected traffic.

While the Federal Trade Commission initiated a crack-down on webjackers back in 1999, today’s webjackers often operate outside of the U.S., from countries such as Romania and the former Soviet Republic, making them exceedingly difficult to track down. So what is a company to do when a webjacker strikes? 

One thing companies can do is to enlist others to reprint details of the webjacking, mentioning the webjacker in the title of the article, while taking great care not to link to the webjacker or the webjacked website. Such was the case recently in Des Moines. The successful online savings program SmartyPig was recently webjacked by a Romanian concern calling itself TrustyPig. As you can see, in an effort to undermine the webjacking, all links in this post link to the legitimate SmartyPig cite, rather than to the TrustyPig website. Here is the legitimate SmartyPig website courtesy of Troy Rutter’s New Media Original Blog.

 And here is the infringing Romanian website:

Did you notice there is no link to the infringing website? A link to the webjacked site would not only generate more publicity for the webjacker, but would move the TrustyPig cite up in  the search engine rankings. Conversely, by mentioning the webjacked website, but linking to the legitimate website, the webjacked website not only misses out on the free traffic redirect, but also falls in the search engine rankings. Webjackers are not unwise to these tactics. Webjackers often fight back by linking other webjacked sites to the offending webpage.

While few companies have the resources to fight a webjacker directly, every company has the ability to leverage social media to fight them. Blogs, Facebook, Twitter and search engines all all valuable tools small companies can use to thwart a webjacking attempt. The key, however, is to get your company’s social network in place BEFORE an attack occurs. That way your social network can come to your rescue immediately, as was the case with SmartyPig. As an added benifit, a deep social networking presence will increase your company’s online reputation, making it more difficult for webjackers and online detractors to attack.

You can help too. Feel free to copy and redistribute this post as much as possible, taking care, as I have done here, not to link to the webjacked website. For more on what you can do to fight a webjacker, read AndyBrudtkuhl’s article TrustyPig - Social Brand Hijack at www.getanewbrowser.com. Andy is a long-time member of the Des Moines Social networking community and is heading up the campaign to move SmartyPig ahead of TrustyPig on Google. Help Andy and SmartyPig out if you can by linking the term "TrustyPig" to Andy’s article.  Be sure to check back often and watch as SmartyPig rises in the TrustyPig search engine rankings.

Brett Trout

 

 

Published by: Brett Trout on August 13th, 2008 | Filed under Uncategorized
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Does Patent Application Reveal Television on the iPhone

 

According to the iPhone blog, a recently published Apple patent application reveals an Apple iPhone dongle of some type capable of receiving over the air television, cable television, satellite television and more. The focus of Apple patent application number US 2008/0183757A1 is to allow users to "tag" various aspects of different types of media. If a users likes certain parts of certain types of media, the user might be more inclined to purchase similar items from the iTunes store.

The patent application does discuss the use of a possible external dongle to receive broadcasts as well as possible integration of the receivers within the phone. The primary focus of the patent application, however is the use of the iPhone as a tagging device. Rather than actually receiving broadcasts through your iPhone, the first iteration of the novel system may merely allow you to hook your iPhone up to your television and input when you like something or would like to know more about it. The iPhone would then store or look up the information relating to the media and pitch you something similar from iTunes.

Even if the tagging option launches first, let’s hope iPhones with integrated broadcast receivers are not too far off.

Brett Trout

Published by: Brett Trout on August 1st, 2008 | Filed under iPhone
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Impromptu Studio

 

Last evening, Des Moines entreprenuer Daniel Shipton revealed to me details of his latest venture. On August 4, 2008, Shipton premiers the next generation of shared, professional workspace in downtown Des Moines.  Shipton’s  Impromptu Studios leverages the advantages of  coworking found in most larger cities.

Impromptu Studio’s thrives on its shared space design. "It’s about community" says Shipton. Sharing space means lower costs for the coworkers and a more collaborative work environment. Tenants build relationships amongst themselves, as well as with clients.

Membership plans range from $125-$350/month depending upon the amenities. Packages may include furniture, 24×7 access (something I have always found critical), storage and/or conference rooms. Drop-in rates, as well as just about any custom plan you can think of, are also available.

The space has lots of free parking, high speed Internet access and printers. The space also includes the standard amenities you would expect from a typical office, without all of the headaches.

Impromptu Studio is also available for meetings and promotional events. The location, 300 SW 5th Ste 220, is a place I hold particularly dear to my heart, as it is the original location of Brett J. Trout, P.C. Impromptu Studio will begin welcoming visitors and coworkers August 4th from 8-5.

Be sure to stop by and say "Hi" to Dan. I can not make it on the 4th, as I will be out of town getting my neck reglued on my body, but I strongly recommend a visit to Impromptu Studio by anyone with the entrepreneurial spirit.

 

Brett Trout

Published by: Brett Trout on August 1st, 2008 | Filed under Des Moines, entrepreneur
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Popular Posts: BlawgIT

A little blast from the past. Rather than list the posts I thought were the best, here are some of the BlawgIT posts which tickled your collective fancy (You really are a sick lot):

Easter Patents

Top Ten Wackiest Patents in the World

Pirillo and Trout to Swap Lives for a Year

Who Owns Your Website (Now in Chinese)

Who Surfs This Much Porn?

Protecting Your Blog’s Intellectual Property

Don’t see your personal favorite? Leave a comment and let me know. I’ll be sure to include it in the next rundown

Brett Trout

 

 

 

Published by: Brett Trout on July 25th, 2008 | Filed under patent
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Are $Billions In Internet Patents Invalid?

 

Yes, according to a recent post on Patently O. In the post, John Duffy explains why recent decisions by the Patent and Trademark Office Board of Patent Appeals and Interferences does not bode well for the ongoing validity of internet patents. Duffy notes, however, that the last nail in the coffin has not been struck.

Granted Professor Duffy has more than a little skin in the game. He represents an amicus party in a pending en banc case before the Court of Appeals for the Federal Circuit entitled In re Bilski. Bilski is truly the watershed decision, promising a paradigm shift one way or the other. Either the patent lawyers are going to have to change the way they draft internet patents, or the Patent Office is going to have to change the way it examines them.

Brett Trout

Published by: Brett Trout on July 24th, 2008 | Filed under patent
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Corporate Packrats Beware

 

Does your company still have "floppy" disks in storage?  Is your company storing invoices from the 80’s? If so, it is time for a little spring cleaning. The cost of cleaning your electronic house is actually quite small compared with the cost of reading, searching, sorting and producing all of these "dead" files in event your company is ever sued. There is a new sheriff in town. If you have them, you are either going to have to produce them, or prove to the court exactly what they contain, a rather costly proposition either way. They good news is that if you get rid of all of your old, unreadable, damaged and/or unnecessary files before you even anticipate a lawsuit, you immediately eliminate the tens of thousands of dollars it would otherwise have taken to sort and produce them.  Now there are those companies that wait until AFTER they get sued to start destroying documents. The one advantage of that strategy is that if often comes with a fully-paid, extended vacation in one of our federal government’s lovely penitentiaries.

Just last December, Federal courts adopted some new rules. Under these new rules, when you get sued, you have to turn over (ESI) along with hard copy documents. If you do not have an effective document retention policy (DRP) in place, this could mean producing millions of electronic documents instead of hundreds. How long is it going to take your company to find those million documents, sort them, weed out the confidential information and convert them to a standard format the other party can read? Who is going to run your company while all of your employees are busy finding, reading and sorting electronic documents?

Can you just get rid of anything you want? Well, for publicly traded companies and other companies subject to the Sarbanes-Oxley Act premature destruction of ESI can result in fines and even prison sentences for the individuals involved. So where do you draw the line? The key is to work with your attorney, your information technology department and your document management team to develop and enforce a DRP customized for your company.

Dragging your feet will only suffice until you get sued. At that point, you will still have to put together a DRP; it will just be with ten lawyers instead of one. Now I realize you are all saying "Hey, what’s wrong with ten lawyers?" Well, nothing. In fact, my buddies and I were looking for a company to get sued without a DRP so we could buy new hogs to drive Sturgis.

You, however, might have a different idea on how to spend your money. Plus, if you implement a DRP BEFORE you get sued your ESI will more likely help you win the case than lose it. Judges and juries are becoming less and less sympathetic with unorganized companies unaware they had hundreds of electronic smoking guns stored on the hard drive of some employee that left the company in the 90’s.

How much more is it going to cost to have a lawyer sift through all those extra documents? How much more is it going to cost to argue about those documents in court? How many more documents are you going to create before you implement a DRP? Why not store them correctly in the first place? 

Implementing a DRP is a big step, requiring committed personnel and some additional resources. The payoff however, extends far beyond the courtroom. Weeding out the chaff and making the remainder more readily accessible streamlines every department in your organization. Once the DRP is in place and working, it actually takes fewer resources to maintain your trimmed down ESI than to randomly store every piece of spam on your local hard drive.

You have two choices. You can either implement a DRP now, with your own people, on your own timeline or, you can have ten lawyers do it in the first two months after you get sued. There is probably a ten fold price difference between the two options and the later option may still lose you the lawsuit. But really, is there any substitute for that warm feeling you get knowing your original copy of Windows NT is still safely tucked away somewhere on a 5.25 inch floppy in the bottom drawer of that beige file cabinet in the basement?

Published by: Brett Trout on July 22nd, 2008 | Filed under Uncategorized
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FTC Cracks down on Invention Promotion Scams

The Patent Prospector has an interesting blog post detailing the Recent Federal Trade Commission (FTC) crack down on the widespread number of invention promotion scams.  According to The Patent Prospector, Invention Promotion Company Davison has been running a "con on patent holders." The FTC Release states that Davison has agreed to pay $10 million in consumer redress for charging inventors up to $12,000 to evaluate and promote inventions.

Davison is also now required to post on its website numbers detailing its success rate at making inventor’s money. It is not surprising that Davison had not previously posted this information on all of its literature since, according to the now FTC-mandated disclosure,  out of the 441,751 inventors submitting inventions to Davison over the past five years, only 10 have made more money in royalties than they paid out under their agreements with Davison.

The FTC has provided a phone number, (216) 263-3434 for inventors who believe that they may have been harmed by Davison.

Brett Trout

Published by: Brett Trout on July 21st, 2008 | Filed under cyberlaw, invention promotion, patent, patents
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eBay wins, you lose

 

A New York federal judge has ruled that eBay, the alleged "rat’s nest" of trademark violations, "cannot be held liable for trademark infringement based solely on [its] generalized knowledge that trademark infringement might be occurring on [its] website[].” Unlike Europe, the United States appears to turn a blind eye to the windfall profits eBay is enjoying at the expense of bidders, which eBay knows, or should know, are buying counterfeit merchandise.

Unlike its American counterpart, the Paris Court of Appeals last week slapped eBay with a $61 Million verdict for negligence and illicit sales involving auctions of counterfeit LVMH goods. LVMH owns the Loius Vitton, Givenchy, Fendi and Marc Jacobs brands. According to eBay, the online auction website "scraps" auctions for counterfeit goods ASAP. The Paris Court found, however, that eBay apparently missed one or two such counterfeit auctions, more precisely about $61 million worth. And that just includes LVMH counterfeit goods.

I realize $61 million worth is not a lot of counterfeit goods being auctioned to consumers, but when you include the millions in alleged counterfeit auctions selling counterfeit Tiffany, Hermes, L’Oreal, Rolex and other goods, and then you start adding in things like bootleg DVDs and other types of scams, pretty soon you start talking some real money. Given that eBay makes the same money from both legitimate and counterfeit auctions alike, where is the motivation to police sellers?

 

Brett Trout

 

Published by: Brett Trout on July 15th, 2008 | Filed under Trademark
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Iowa Biz Gets New Home

 

For all of you Business Junkies addicted to the IowaBiz blog, there is some great news. The Des Moines Business Record has acquired the blog and given it a brand new look. The new blog includes all of Iowa’s A-List bloggers you have grown to know and love, including:

Cory Garrison

Drew McLellan

Joe Kristan

Mitch Matthews

Nathan Wright

Rush Nigut

Timothy Johnson

Tom Vander Well

Victor Aspengren

There are also some new faces as well! Stop by and check it out. Also, if you have any Internet legal issues you would like me to cover on IowaBiz, be sure to let me know.

Brett Trout

Published by: Brett Trout on July 14th, 2008 | Filed under IowaBiz
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Author: Brett Trout
I am a patent attorney, but the ramblings to your left are not legal advice. Peculiarities of the law, the facts, the client and the lawyer (mostly), make every case unique. If you feel this blog speaks to you, you must seek professional help (heck, why not talk to a patent lawyer while you are at it). If you see something you like, join in the conversation. The chance I might be wrong is merely theoretical at this point, but feel free to point out any monkeys you see waxing Bard-like in my posts. I am too old to admit a mistake, but I will enjoy the discussion. No information you send me or post is confidential. By posting or sending anything to me, you authorize me to use it for ANY purpose I desire, including, but not limited to, folding origami ballerinas for my Nutcracker diorama. If the postings are not placating your Internet law jones, check out my book Cyber Law or check out Lawpportunities. You can also visit my Iowa Patent Lawyer website or stop by our offices at 516 Walnut, Des Moines, Iowa.

CyberLaw: A Legal Arsenal For Online Business



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