Data Privacy: Do most people even deserve it?

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold.  This is especially true if the website is free for me to use. 

Okay, before we get going, realize that this article is not discussing things that we would like to think is relatively safe and secure…like banking and health records.  Even then, please repeat the statements above because even for those situations it still holds true.  What I’m going to talk about is the more run of the mill websites and platforms that everyone uses.

The truth of the matter is, most people never read a website’s terms of service or privacy policy and readily click the “I agree” or “I accept” button without knowing if they have just agreed to give away their first born or shave their cat.  Or, to be more realistic, that a free to use website which you don’t have to spend a penny to use is likely to track your behavior so they can render you ads of products and services that you might be interested in and/or sell aggregated data and/or your email address to marketers or other businesses that might be interested in you as a customer or to learn more about consumer habits in general.  Hello people…NOTHING IS FREE!  Indeed, most humans are lazy as sh*t when it comes to all of that reading and so forth because really, who in the hell wants to read all that?  Hey, I’m guilty of it myself,  although since I write terms of service and privacy policies as a way to make a living sometimes I will read them for pure entertainment.  Don’t judge me…I’m a nerd like that.

We are quick to use, click or sign up on a website without knowing what it is that we are actually agreeing to or signing up for…because we want entertainment and/or convenience…and we want it NOW.  Talk about an instant gratification society right? Think about the following situations as an example: Go to the grocery store and buy ingredients then take another 35-40 minutes to make dinner or simply use an app to order pizza? Send someone a handwritten letter through the mail (snail mail) or shoot them an email? Sit down and write checks or schedule everything through bill-pay? Pick up a landline phone (they do still exist) and call someone or send them a text from your mobile device?  Go to the local box office and purchase tickets to your favorite concert or buy them online? Stand in line at the theater for tickets or pre-pay on an app ahead of time and walk right in using a scan code through that app? Remember and type in your password all the time or ask your computer or use your thumb print to remember it all?  Take pictures with a camera that has film, get it developed and send those images to family and friends or take pictures with your phone and instantly upload them to a social media platform like Facebook to share with those same people, for free? By now you should be getting my point…and that is that we want convenience, and technology has been great at providing that, but for that convenience we often forget the price that is associated with it, including a loss of data privacy and security.

Low and behold, and not surprisingly (to me anyway), something like the Facebook – Cambridge Analytica situation happens and Every. Damn. Person. Loses. Their. Mind!  Why? Well, because mainstream media makes it into a bigger story than it is…and suddenly everyone is “conveniently” all concerned about their “data privacy.”  So let me get this straight: You sign up for a FREE TO USE platform, literally spend most of your free time on said platform pretty much posting everything about yourself including who your relatives are, what you like and don’t like, the last meal you ate, your dirty laundry with a significant other, spend time trolling and getting into disputes on bullsh*t political post (that are often public posts where anyone can see them), check in at every place you possibly go, upload pictures of yourself and your family…all of this willingly (no one is holding a gun to your head) and you are surprised that they sell or otherwise use that data?  How do you think they are able to offer you all these cool options and services exactly? How do you think they are able to keep their platform up and running and FREE for you to use?  At what point does one have to accept responsibility for the repercussions from using a website, signing up or clicking that “I agree” button?  Damn near ever website has a terms of service and privacy policy (if they don’t steer clear of them or send them my way for some help) and you SHOULD be reading it and understand it…or at least don’t b*tch when you end up getting advertisements as per the terms of service and privacy policy (that you didn’t bother to read)…or any other possible option that could be out there where someone might use your information for – including the possibility that it will be used for nefarious purposes.

I’m not saying that general websites/platforms that house such content shouldn’t have reasonable security measures in place and that terms of service and privacy policies shouldn’t be clear (though its getting harder and harder to write for the least common denominator).  But again, nothing is 100% secure – there will always be someone that will find away to hack a system if they really want to and it’s really your fault if you fail to read and understand a website or platforms terms of service and privacy policy before you use it or sign up for something.  Why should people scream and cry for the “head” of a platform or website when people freely give their data away?  That’s like blaming the car dealership for theft when you take your fancy new car to a ghetto ass neighborhood, known for high crime and car theft, leave it parked on a dark street, unlocked and with the keys in it.  “But they should have watned me it would get stolen!” Wait! What?Okay, maybe that’s a little too far of an exaggeration but seriously, the internet is a blessing and a curse.  If you don’t know of the potential dangers, and you don’t take the time to learn them, perhaps you shouldn’t be on it?  Remember, entertainment and convenience is the reward for our sacrifice of data privacy and security.

You know who has a heightened level of privacy, doesn’t have social media accounts hacked, data isn’t mined from online habits and doesn’t get spammed to death?  My dad.  Why? He doesn’t get on computers let alone get online and he doesn’t even own a smart phone.  True story.  The dude still has checks, writes hand written notes, and hunts for his meat and gardens for his vegetables. Can you say “off the grid”?  Want heightened data privacy?  Be like dad.

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold and sold.  This is especially true if the website is free for me to use.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction. 

 

 

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From the #MoronFiles | I’m not a lawyer…I just play one online.

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shit bags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

04/10/2018 #MORONFILES ENTRY:

It’s been a while, and there have been some probably post worthy matters that I have skipped, but THIS one warrants mention.

Normally this blog touches on people who are indeed real lawyers…and I started this thinking I was dealing with a real lawyer, after all, I see enough dumb stuff that I created this blog series off of it…but as I dug in, this almost makes more sense! Let me explain…

One of my clients received a demand letter today (a send via email in a generic word doc, no formal letterhead, nothing).  The letter alleges to be from a lawyer, with a firm name in a signature block, but sent from a Gmail account.  Let me first say, anytime I receive a letter from a lawyer, representing a client, from a Gmail account, I cringe. Dude, a domain is cheap and so is associated email.  You automatically lose credibility in my book but that’s another story for a different day.  I read through the letter (blah, blah, blah…”[s]evere legal action will be taken against you”…blah, blah, blah…”we assure you in the strongest terms” blah blah blah, we will “leave no stone unturned”…blah, blah, blah).  Okay, severe legal action? As opposed to regular legal action? Strongest terms? Leaving no stone unturned? Wait, are you Perry Mason?  No? You have Perry Mason envy don’t you?  Sigh. Who comes up with this crap? Oh, this person…

To begin with, let’s just say this is another case of some moron having no damn clue what they are talking about…all the blah blah blah is really just a bunch of lame bullshit they probably read somewhere online and thought it might apply to their “client’s” situation when it doesn’t.  Not even a little bit.  That Google law degree isn’t working so well for ya pal.  What’s even more funny…the person appears to be a total fraud!

So wondering what kind of ding dong would write this kind of stuff I start researching.  The state this person purports to be an attorney in has, like many states, a mandatory state bar registry.  Guess what?  Not listed in the registry.  Look up the LLC that is the alleged firm name on the Corporation Commission records…yeah, entity doesn’t exist.  Look up the address – it might be an apartment (which to be clear, thanks to technology, there are a ton of home based attorneys and there is nothing wrong with that at all – it’s a great way to go!) but in this case it added to the suspicion. Icing on this shit cake – looked into the name provided – court records for recent arrests for a person with that very unique name.  Could there be others named the same living in the same area? Possibly…but given everything else, I sort of doubt it.  Either this is a really shoddy attorney or a person who really sucks at pretending to be an attorney.

There are enough bad lawyers out there…what’s worse is bad people, who are not lawyers but pretending to be lawyers, holding themselves out as such.  By the way such conduct is called the unauthorized (or unlicensed) practice of law and is typically considered a crime.  So indeed, this one makes the #MORONFILES!

 

Arizona Defamation Law

Now that nearly anyone can get online and “speek freely” it is no wonder that there is a rise in defmation related claims.  If only people would have read the Fighting Fair on the Internet series sooner?  Indeed, so many people are either “That Guy” or are on the receiving end of “That Guy.”  Hey, I’m not judging, I’m just telling it as I see it.

As adults that may not have grown up with the internet, many of us were thrust into online situations that, quite frankly, we weren’t equipped to handled.  And now, kids are even getting the short end of the lesson learning stick because of it.

So let’s talk about defamation.  Of course, it’s important to point out that laws vary from state to state and if you are not in Arizona, the following information may not apply to you.

ARIZONA DEFAMATION LAW – THE BASICS

The Elements of Defamation in Arizona.

In Arizona, as outlined in Morris v. Warner, 106 Ariz. 55, 62 (Ariz.Ct.App. 1988), the elements of a defamation claim are:

  1. a false statment concerning the plaintiff;
  2. the statement was defamatory;
  3. the statement was published to a third party;
  4. the requisite fault on the part of the defendant; and
  5. the plaitniff was damaged as a result of the statement.

In order for a statement to be considered “defamatory” the statement made must be false and bring the alleged defamed person into disrepute, contempt, or ridicule, or impeach his/her honesty, integrity, virtue, or reputation.  That is outlined in a case called Godbehere v. Phoenix Newspapers, Inc., 162 Ariz.335, 341 (Ariz. 1989).

Spoken “defamation” is called slander.   Think of rumor telling in the locker room, or maybe even bigger, like saying something on live public television.

Written “defamation” is called libel.  Given the popularity of the internet now, this is what we see happening more often.  Think of postings you see people post online.  Those arguments that get heated and people start making up false statements…yeah, that could be libel.

Distinguishing between defamation per se and defamation per quod.

Distinctions between defamation per se and defamation per quod in Arizona is important because it effects the type of damages that the plaintiff must allege in order to prevail on their claim.

  • Slander per se is a statement that does any of the following:
    • Imputes the commission of a crime involving moral turpitude (meaning an act or behavior that gravely violates the sentiment or accepted standard of the community.); or
      • Examples of this are false accusations that some has commit rape, forgery, robbery, and solicitation by prostitutes.
    • Tends to injure a person in his profession, trade, or business; or
      • For example, falsely telling someone that a business took your money without providing the service promissed.
    • States that someone has a contageous or vanerial disease, or that a woman is not chaste (meaning that she is not pure from unlawful sexual conduct).
      • For example, falsely saying that someone one has AIDs.
  • Slander per quod is basically a slanderous statement that does not otherwise fit under the definition of slander per se.
  • Libel per se is a statement written which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disprpute, contempt or ridicule” or “impeach the honestly, integrity, virtue or reputation.”
  • Libel per quod is bascially a written statement that on its face doesn’t fall within the definition of defamation BUT by which special circumstances actually make it fall within that definition.

Statute of Limitations for Defamation in Arizona

As I discussed in a prior article, it is important that people understand Statute of Limitations.  They are there for a reason and, in my view, counsel that file claims that are barred by the statute of limitation are doing nothing more than wasting client resources and, arguably, committing an ethical violation.

The statute of limitations for defamation in Arizona is one (1) year.  A.R.S. § 12-541(1).  There may be, in some very limited circumstances, an argument to be made that there should be a tolling of the statute of limitations in situations where the information would have been concealed from the plaintiff (like in a confidential memo) in which case the statute of limitations may run fron the date of “discovery.”

Another important fact to know is that Arizona, by state statute, applies what is referred to as the “single publication rule” or, more specifically, the “Uniform Single Publication Act.”  A.R.S. § 12-651.  The important langugage of the statute states as follows:

A. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

B. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

The single publication rule applies to content posted to the internet and under the “single publication rule,” a cause of action for defamation arises at the time the statement is first published; later circulation of the original publication does not start the statute of limitations anew, nor does it give rise to a new cause of action.  Larue v. Brown, 235 Ariz. 440, 333 P.3d 767 (2014)

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction. 

Domesticating a Foreign Subpoena in Arizona

So you have initiated legal action in your local state court but an entity or person that you need information from is based out of or otherwise located in the state of Arizona.  What do you do?

Every state has their own unique set of laws and procedures when it comes to domesticating a foreign subpoena and Arizona is no exception.  The following are a few important points:

  1. Make sure you know who the entity’s statutory agent is and where they are located.  You should be able to find this by searching the Arizona Corporation Commission’s website.  This is important because you will want to have the domesticated subpoena issued out of a court in the county in which the discovery will be produced.  The court will charge a fee for issuance of the subpoena.
  2. Ensure that you are complying with Arizona’s Interstate Depositions and Discovery rules as set forth in Ariz.R.Civ.P., Rule 45.1.  Pay attention to special language requirements.
  3. The subpoena must be served in accordance with Ariz.R.Civ.P., Rule 45(d). Don’t forget to tender any applicable witness fee and mileage allowed by law.  See A.R.S. § 12-303.
  4. If you are commanding attendance at a deposition or hearing, the place of appearance must be consistent with with Ariz.R.Civ.P., Rule 45(B)(3).
  5. You will have to arrange to have the subpoena served, e.g. through a process server.

Many can absolutely accomplish the goal of foreign subpoena domestication in Arizona entirely on their own (as long as you pay close attention to the rules), however, if you are unsure of the process, or otherwise just don’t want the hassle of it, feel free to reach out to us.  We are here to help you navigate and/or take over the nuances.

If you are in need of assistance with laws and procedure in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

 

 

 

10 Online Safety Hacks You Can Implement Today

Every day you read about major companies, or even law firms, getting hacked.  Talk about some frustrating stuff! It’s even worse when it actually happens to you.  Of course, with the increase of technological convenience comes greater cyber security risk.  One of my personal favorite cyber security gurus and “Shark Tank” star Robert Herjavec recently provided insight for an article that outlined 10 safety hacks that are easy to implement if you aren’t already doing them.  What are those 10 safety hacks?  Continue reading…

Some of these seem pretty intuitive.  Others perhaps not so much but are a good idea.

  1. Enable multi-factor authentication (MFA) for all of your accounts.
  2. Cover internal laptop cameras.
  3. Don’t do any shopping or banking on public Wi-Fi networks.
  4. Ensure that websites are SSL secure (https instead of http) before making financial transactions online.
  5. Delete old, unused software applications and apps from your devices.
  6. Update your anti-virus software as soon as updates become available.
  7. Refresh your passwords every 30 days for all accounts and use unique passwords for each account.
  8. Update computer/mobile software regularly.
  9. Don’t click on unknown links or open unknown attachments.
  10. Change the manufacturer’s default passwords on all of your software.

One of my favorites is the “cover internal laptop cameras.”  I personally used to get made fun of because I would place a sticky note over the top of my camera on my computer.  I suppose it didn’t help that it was bright green (or hot pink) depending on what color sticky note I had handy so it drew attention until I was given a better one (a plastic slider made specifically for this purpose) at a networking event from Cox Business. Now it doesn’t seem so silly after all.

Another one that I know is important, but probably more difficult to do, is to “refresh your passwords every 30 days for all accounts and use unique passwords for each account.”  Holy moly!  Think of how many accounts have passwords these days?  Literally every different system/app/website that you use requires a password! One LinkedIn user listed as a “Cyber Security Specialist” for a software company offered the solution of a program like LastPass.  Apparently, according to this particular individual anyway, LastPass saves all of your passwords in a securely encrypted container on their servers and have many other built in safety features in the event of stolen or hacked data.  This way all you have to know is one password and LastPass will do the rest.  While surely there are other similar solutions out there, if you are interested, you can read more about LastPass on their How It Works page. Sounds pretty cool, right!?! It might help you break out of that password hell.

A little common sense plus adding in these 10 security hacks can go a long way! Do you have any security hacks to share? Have a favorite password protector that you use? Let us know in the comments!

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

From the #MoronFiles | We will pursue this to the end

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shit bags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

08/23/2017 #MORONFILES ENTRY:

Don’t get me wrong, I have spent my fair share of time in the litigation arena, but by now you probably know what I think of F’n Litigators and those that come all “I Demand” at you.  Today we’ve got another winner of the turd trophy award with the “we will pursue this to the end” statement from what appears to be a group of confused counsel.  Why are they confused?  Well, first they haven’t done research because if they had, they would realize that my client wouldn’t be liable for the problems they are experiencing. Nevertheless, they send a letter demanding certain action anyway.  Okay, understandable…they are advocating for their client’s perceived rights and a nice response goes back – trying to be helpful by explaining options, etc.  These people must be not that busy because a response comes back near immediately explaining that they are considering litigation in State A and will name my client.  Um, now I think you haven’t done your research so let me give you case law in State A, and other states around the country, that explains that their argument is without legal merit and a bunch of other “don’t do this because it’s a bad idea” content.  Cool.  That should take care of it, right?  Nope! Counsel writes back, explains they’ve litigated in State B, and will see the case through to the end.  Um, so which is it? You wanna fight in State A or State B?  And did you even read what I wrote you because I cited law in both State A and B that is on point and NOT in your favor.

Where in the hell do people find these attorneys?  And do these people just like to waste their resources on these kinds of lawyers?  Because I feel like I see a lot of these legally meritless, yet ego filled, letters that are about as helpful and pleasant as an itchy bung-hole…and I know the client is the one that has to pay for it.  Not a fan of wasting client resources.  There are so many things they COULD do to help their client BUT, you know, it’s better to set your client up for eating attorneys fees and costs because of ego.  LET. IT. GO.

Schools and Sunscreen to License Plate Covers: 10 new Arizona laws that may impact you – effective this week.

Often times, when laws are passed, they are done without most people noticing.  That’s because small changes to state statutes aren’t all that “news worthy” and it seems that the only people that care are those that wrote them.  However, starting Wednesday, August 9th, 2017, there are 10 laws that Arizonans might actually find relevant, or at least interesting:

  1. Sunscreen in School: Remember the frustration with trying to get your kid to be able to use sunscreen at school, camp or daycare without a prescription?  Stress no more!  HB 2134 fixed that by allowing school aged kids to have and use sunscreen without a note or prescription!
  2. Schools and Inhalers: I can recall growing up with asthma and recess could be troublesome without an inhaler.  Fortunately, that probably won’t be an issue anymore. HB 2208 grants trained school personnel the authority to administer a rescue inhaler to a student (or adult) provided that such student or adult is showing signs of respiratory distress during school or a school sponsored event.  It also allows schools to apply for grants and accept donations to buy inhalers and spacers.
  3. Hot Cars are No Place for Pets and Kids: We’ve seen more than our share of news stories about kids and pets being left in hot cars and dying as a result.  Passers by have long been concerned about civil liability for breaking into locked and unattended vehicles in order to rescue the pets or kids. After all, no good deed goes unpunished, right? Well, worry no more! HB2494 remedied that by protecting persons who enters a locked, unattended, vehicle in connection with the rescue of a child or pet if that person believes that the kid or pet is in “imminent danger of physical injury or death.”  The caveat is that the person MUST call the police or animal control first and stay with that animal or child under they police or animal control arrive.
  4. Background Checks for Private Gun Sales: There has been a lot of confusion surrounding whether or not one had to do a background check on someone when there was a private sale or gift of a gun. Confusion be gone. SB 1122 has made it clear that the state, county and city governments cannot require background checks to be done on private gun sales, gift, donations or other transfer.
  5. Arizonans with Disabilities Act: Businesses know that in order to operate they often need to take into consideration patrons/customers that have disabilities. There has been recent talk about this even applying to a business’s website. Nevertheless, it appears that to help out businesses, SB 1406 amends the Arizonans with Disabilities Act to give a business up to 90 days in order to cure violations for structural access before a lawsuit can be filed against them, and websites have also been exempt from from the state accessibility requirements.  Of course, for the website business owners, this doesn’t mean that a case won’t be brought against you in a different state that doesn’t have the same rules (people are crazy litigious like that) but it’s good to know that you’re seemingly safe, for now, with the laws of this state.
  6. Crummy Moving Companies Beware: Nothing says “crummy moving company” like one that will get all of your belongings loaded up and to your (in-state) destination but refuses to unload your stuff if you have a disagreement over the payment – like added surprise charges that you weren’t anticipating. HB 2145 addresses that problem by making it illegal for a moving company to fail to unload your belongings over a disagreement over the bill.  Moving companies have to provide a written contract and disclose all fees.  No more surprises = no more disagreements (hopefully).
  7. End of Life Decisions are Difficult: At the end of one’s life – decisions that are being made take a toll on all of those involved – doctors and nurses included. SB 1439 protects doctors, nurses and entire medical facilities from discrimination when they refuse to participate in or otherwise provide any service or item that would result in the death of an individual.
  8.  License-Plate Covers: For all those who think they are being slick with the fancy license plate covers, electronic devices or film that “hides” your license plates from cameras, etc. – you might want to get rid of them.  SB 1073 makes it illegal to cover your license plate in a manner that obscures the license plate from any angle.
  9. Serving Age of Alcohol Decreased: HB 2047 reduces the age in which a person can serve alcohol.  Under the old law one had to be 19 years old before they could serve alcohol.  Under the new law a person only has to be the age of 18.
  10. Pharmacists and Emergency Prescriptions: It can be scary to run out of necessary medication and not be able to get a refill timely.  SB 1269 now allows pharmacists to issue a one-time emergency refill of a non-controlled medication used to treat an ongoing medical condition in particular circumstances including when the pharmacy has had prior record of the patient such patient has a history of being prescribed such medication.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

Copyright Infringement: The Basics of a DMCA Notice for Online Content

I’ve been receiving calls from people alleging that someone is infringing on a their copyright (almost always online) and asking for information relating to what goes inside a Digital Millennium Copyright Act (“DMCA”) Notice so that they can try to get the alleged infringing content removed. While there is a full legal analysis that should go into whether or not submitting a DMCA notice would be proper, if you know that you are in the right, the following are the basics that need to go into a DMCA Notice:

Any DMCA removal request directed to a website should comply with 17 U.S.C. § 512(c)(3) and include at least the following things:

  1. Your name, address, telephone number, and e-mail address;
  2. A description of the copyrighted work that you claim has been infringed;
  3. The exact URL or web address where the alleged infringing material is located;
  4. A statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
  5. Your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
  6. A statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf.

The decision to submit a DMCA Notice to a website should be made carefully.  DMCA Notices are NOT good for Reputation Management purposes and if you make any false statements in your demand (like you aren’t actually the copyright holder, etc.) the law does impose substantial liability for any damages and attorneys’ fees incurred as a result. 17 U.S.C. §512(f).

Do you have questions about the DMCA Notice process or other general Copyright related questions? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

Digital Millennium Copyright Act: It’s NOT for Reputation Management

Let me start out by saying that if your entire business model is based on submissions of Copyright infringement notices (“Digital Millennium Copyright Act Notices” or more commonly referred to as “DMCA Notices”), you should first have a clue about: 1) what goes in one; and 2) what circumstances will likely be found by the court as “infringement.”  If you can’t even get that right, you are doing a disservice to both your customer and are risking litigation against you.  #PetPeeve Yes, I have services in mind but they shall go unnamed.

I understand that in today’s modern world it is incredibly easy for someone to take a picture that posted of someone on the internet and then turn around and upload it elsewhere.  Indeed, depending on the circumstances, it may very well be an instance of Copyright infringement and a DMCA Notice may very well be warranted.  There is an entire legal analysis that often goes into determining Copyright infringement and those who are untrained should consult legal counsel who regularly handles Copyright infringement issues to help walk through the elements.

Notwithstanding the above, if you think that submitting a DMCA Notice to a site where such image is being used in connection with a review, in an effort to get that review or image to be removed from that site, you are likely going to fall flat and may have just wasted time and money.  Why? Because such use is more likely than not going to be considered “fair use” by a court.

The doctrine of fair use is codified at Section 107 of the Copyright Act, 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … for purposes such as criticism [and] commentary … is not an infringement of copyright.”); see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir.2001) (“copyright does not immunize a work from comment and criticism.”).  Similarly, courts around the country have upheld the fair use doctrine for the type of claim that most people write to review websites about, i.e., an image connected with a critical review. See Dhillon v. Does 1-10, Not Reported in F.Supp.2d, 2014 WL 722592 (N.D.Cal. 2014) (finding of fair use when Plaintiff’s professional headshot was used for article criticism and commentary); Galvin v. Illinois Republican Party, Slip Copy, 2015 WL 5304625 (N.D.Ill. 2015) (finding of fair use when Plaintiff’s photograph was used in a flyer for the purpose of criticism and commentary); Katz v. Chevaldina, Slip Copy, 2014 WL 2815496, 111 U.S.P.Q.2d 1281, (S.D.Fla. 2014) (finding unauthorized use of unflattering photo of businessman in a blog that is critical of his business practices to be fair use as a matter of law); Katz v. Google, Inc., —F.3d—, 2015 WL 5449883 (11th Cir. 2015) (finding of fair use when blogger used a photograph of a businessman, which he owned the copyright to, in a posting that was to deter others from conducting business with businessman); and Weinberg v. Dirty World, LLC, et al., 2:16-CV-09179 (C.D.Cal. Jul. 27, 2017) (finding fair use when photograph, captured from a video clip which Plaintiff had rights to, was uploaded to an online review website to “ridicule, mock, and critique” the figures in the image).

Moral of the story: if you are considering using a DMCA Notice (or hiring some Reputation Management company who uses this “method”) in effort to try and get postings or images removed from the internet…you should seriously reconsider your strategy. Chances are such companies (or law firms – I’ve seen ridiculous letters from attorneys too) are just taking your money and you may not get the results boasted about. Remember, there has to be a good faith believe that the use is infringing and when there is an abundance of case law that says “fair use”…one questions the “good faith” requirement.

Are you a business that operates a website where you regularly receive DMCA Notices? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

 

 

Trademarks and Fair Use in Commentary

I have clients who operate websites that allow third-party content.  While NOT my clients, think about sites like Yelp, Twitter, Glassdoor, or even Facebook as examples. When you operate websites that allow other people to go online and write whatever they want, chances are you are going to see an allegation of Trademark Infringement via a cease and desist letter.  I typically see them in the context of someone alleging trademark infringement because someone is using the trademark to talk about them online – most often critically.  These cease and desist letters come in from attorneys (which I always raise an eyebrow at), reputation management companies (again which I raise an eyebrow at) and everyday people which I can better understand because many simply don’t have an understanding of this area of law.

Due to the overwhelming issues that I see with these cease and desist letters, I thought it might be good to cover some basics:

What is a Trademark?

A trademark is a word, name, symbol, or device, or any combination thereof, that is used to distinguish the goods of one person from goods that are manufactured or sold by others.  Think of it as telling people the source of the goods.  Think of “Pepsi” or “The Home Depot” for example.  Those are trademarked words that clearly distinguishes them from other sources of goods like “Coca-Cola” or “Lowe’s.”

Protecting your Trademark.

It is important to police your trademark so as to keep it from falling by the way of generocide (death by becoming too generic due to its popularity and/or significance) or being counterfeited (knock-offs). A common example of generocide includes trademarks like “escalator” for the moving staircases.  If you are curious you can read more about generic trademarks.  A common example of trademark counterfeiting includes the cheap knock-off/fake Louis Vuitton handbags.  You know, the ones that look like it’s the real deal at first glance but any savvy fashionista knows better upon closer inspection.

Trying to use Trademark as a Reputation Management Method.

Yes, there are times when you should be policing your trademark as discussed above. However, just as I cannot talk about The Home Depot without saying “The Home Depot,” the same goes for anyone else wanting to talk (or write), good or bad, about a particular brand. Such use falls under what is called “nominative fair use” which applies when a person has used one’s trademark to describe or refer to the trademark holder’s product. As with most aspects of law there are caveats and tests, however, generally speaking, just because you have a registered trademark doesn’t mean that you can submit cease and desist letters and allege trademark infringement as a way to get websites to take down content critical of your business.  Chances are, in that context, it is NOT trademark infringement.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.