Websites can be
legal liability, so
audit yours yearly
Web site-related lawsuits have been big news recently.
In the Twin Cities, a judge forced a South St. Paul man to shut down Web sites he registered to domain names very similar to those of McDonald’s, PepsiCo, and The Washington Post, which he used to push his anti-abortion views. Recording artist Alanis Morissette sued a Canadian man for using the site www.alanis.net to sell unauthorized celebrity merchandise. Madonna, Sting and Kevin Spacey have all filed similar lawsuits within the past year.
You may not be a pop-culture icon or sit at the helm of a major international corporation, but as a business leader you should take a cue from these cases and examine your Web site closely, as well as those possibly associated with yours, to ensure you are protecting your intellectual property and are not violating any of the new laws pertaining to the Internet.
Even if you have a simple site that only transmits information — as opposed to one that conducts e-commerce, for example — Internet laws still expose your business to liabilities, and you must take action to protect your business’s valuable intellectual property. Periodically audit your site to make sure it complies with laws and regulations.
The following tips provide some basics to get your business started on a Web audit.
Make sure you have copyright protection.
If an independent developer or designer contributed to the development of your Web site in any way by providing content, graphics or photos, don’t assume you own the rights and content once the project is completed and paid for. You need a valid, written agreement transferring all necessary rights to your company. Many companies have been forced to pay licensing or usage fees to original designers even after the site has been live for years.
You also should ensure the copyright and user agreement notices on your site are appropriate to your business and are current and consistent. If they aren’t, the information you’ve copyrighted might not be as well protected as you might think.
If you haven’t already registered it, consider registering the site- or portions of it- with the U.S. Copyright Office. Without a registered copyright, you cannot bring a suit against any parties violation your copyright or misusing your work.
Safe harbors
The 1998 Digital Millennium Copyright Act (DMCA) reformed U.S. copyright law to bring it up to date with today’s digital world. Does your Web site comply fully with and take advantage of this law?
Particularly relevant for any Web site that allows the exchange of ideas through forums or other similar electronic communities is the law’s safe harbor protections. If your Web site allows posting by outside parties, is it in line with the DMCA safe harbor provisions?
The purpose of the DMAC safe harbor provisions is to reduce the liability exposure for online service providers. By designating an agent with the U.S. Copyright office, posting a relevant notice on the site, and implementing a process set forth in the DMCA the Web site owner can avoid monetary damages and injunctive relief for copyright infringement.
Get it in writing.
Have a written agreement with your hosting provider that spells out the remedies for down time. Many provider-policies will account for lost profits until operations are able to resume, but some providers operate under a “don’t ask, don’t tell” agenda. This should be addressed and agreed upon upfront, before problems arise.
Protect trademarks and domain names.
Have you obtained the necessary rights to your trademarks and domain names? Without them, you are exposed to the possibility of someone using or mimicking your product and service names and logos, as well as Web site domain names, and you could face a tough battle getting the problem fixed.
Also, much like you should with copyrights, make sure trademark notices and usage are appropriate and used consistently.
Be aware of potential infringers of your trademarks and what your rights to remedies are. If a person or company registers a domain name that infringes on your trademarks, you may be able to take advantage of the Uniform Domain Name Dispute Resolution procedure to obtain them from the infringing party. To do so you must demonstrate that the other party is using the domain name in “bad faith” and lacks any “right or legitimate interest” in the name.
Get the site’s fine print up to snuff.
On your business’s Web site, be sure to post legal disclaimers and warranties in a location that is easily found. The site should have legally enforceable terms of use that cover issues such as how content can be accessed or used, limitations of liability, rights to submissions or ideas, compliance with the DMCA, and child privacy provisions and jurisdiction. The site should require the user to acknowledge and accept the terms of use.
If other sites are linked to yours, consider using a disclaimer of non-endorsement and developing linking or framing agreements. Determine whether online or click-through licenses are necessary, and make sure your metatags are appropriate and legal.
A metatag consists of words that are invisible to the Web site visitor but detectable by search engines and act as a powerful browser tool for bringing traffic to a Web site. Using competitor’s trademarks or other famous trademarks not owned by the company as metatags may be improper. Metatags can also be used to initiate the appearance of advertising banners. It is illegal to have your advertising appear in response to a competitor’s name or trademark as a keyword.
Framing in another approach used to control the viewing of Web sites. It allows the content of one site to surround or “frame” the content of another site that may incorrectly suggest to the viewer an association or affiliation with the other party’s site or content. Such activities could result in claims of unfair competition and potential copyright infringement.
Respect your user’s privacy.
It is crucial that your privacy policy is updated and accurate. It should include an opt-in/opt-out for the user and fully comply with the Children’s Online Privacy Protection Act. Customize it to your actual business practices-don’t merely copy it from another company’s site.
Consider obtaining a seal of approval certifying that your policy meets certain minimum standards from Trustee, the Better Business Bureau online, or other organizations.
The growing prevalence and commercial power of the Internet has resulted in an explosion of new laws and first-of-its-kind litigation. It is important to follow this ever-changing legal landscape and update your Web site as necessary.
[contact] Michael Cohen practices electronics and computer law at Minneapolis based intellectual property law firm Merchant & Gould: 612-332-5300; mcohen@merchant-gould.com
