From the #MoronFiles | Note to Dabblers: When in doubt, refer it out!

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 shitbags…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:

09/10/2018 #MORONFILES ENTRY:

If you are a lawyer and your website boasts that you are the top “insert any law practice not having to do with civil internet defamation matters here” and that is ALL that it is listed that you practice on your website…perhaps you should stick with what you know.  More often than not, dabbling makes you look like an unprofessional asshole to those who do practice in the area you are dabbling in and you are really doing a disservice to your client.  Don’t get me wrong, I’m all for learning new areas of law…  I wouldn’t be doing what I am doing but for me learning new stuff…but I could do reasearch on my own and I also found mentors.  And if you don’t have a mentor, you should be damn smart enough to conduct basic research first before you go sending your little nasty grahams.  Have a leg to stand on for crying out loud!  Be smart enough to know what you don’t know.  When in doubt, refer it out!

So client gets a letter from a law firm, from a foreign jurisdiction (but not THAT foreign – like this country likes to cite to our case-law on occasion) that basically provides the run of the mill demand letter and threat of litigation if the client doesn’t comply.  Sounds rather standard; so what’s the problem?  This particular lawyer has not a f*cking clue what he/she is talking about.  This is evident by the fact that they cited to a local statute that would ONLY make sense if it was filed some 2+ years ago…and if they applied to someone OTHER than this particular client. *Sigh*

I don’t care what area of law you practice in – claims have some sort of statute of limitations.  If your law school education didn’t teach you that – go get your damn money back!  It’s basic legal analysis 101.  If you are going to make a demand, you should probably look that up first to see if your threat of litigation is going to make you look like a tool or not by being outside of the statute of limitations for the claim you are asserting. Now, I know that some attorneys argue that it is okay to bring a claim that is outside of the SOL and wait to see if the Defendant raises that defense.  I do not subscribe to that kind of lawyering and some State Bar opinions are with me on this.  Second, you should see if such liability actually even extends to the person/entity that you are threatening…and if your own jurisdiction didn’t just create some law that is totally opposite of the position that you are trying to pursue.  Yeah, because I can do research too…and that happened here. *Asshat*

This is a prime example of a person/firm that I won’t forget…and it is a person/firm that I would NEVER refer anyone to…because they have already proven they don’t do necessary research to adequately advise a client.  That is true of anyone who makes my #MoronFiles list (the list is getting longer by the day – though I don’t write about them all).  This is why I think it’s important that clients and lawyers understand statute of limitations and other pertinent aspects that should be contemplated before sending such threats.  It’s not just your client that is watching you (and that you could be harming by wasting their resources)…so are others in the profession.  I remember who are above-board and who aren’t…and I’m happy to refer to colleagues in the space, even if they are opposite of a client of mine, if they show professionalism.  To be clear, this isn’t the first of it’s kind…just felt like venting regarding this one today.

Until next time friends!

 

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Section 230 is alive and well in California (for now) | Hassell v. Bird

Last week, on July 2, 2018 the Supreme Court of California overturned rulings that arguably threatened the ability for online platform users to share their thoughts and opinions freely by ruling in favor of Yelp in the hotly contested and widely watched Hassell v. Bird case.

For those that aren’t familiar with the underlying facts, I offer the following quick background:

In 2014 a dispute arose between California attorney, Dawn Hassell and her former client, Ava Bird when Bird posted a negative review of Hassell on the popular business review site, Yelp.  Hassell claimed that the content of the post was, among other things, defamatory and commenced an action against Bird for the same in the Superior Court of the County of San Francisco, Case No. CGC-13-530525. Bird failed to appear, and the Court entered a default order in favor of Hassell.  There is question as to whether Bird was actually served.  In addition, the court ordered Yelp, a non-party to the case who did not receive notice of the hearing, to remove reviews purportedly associated with Bird without explanation and enjoined Yelp from publishing any reviews from the suspected Bird accounts in the future.  Yelp challenged this order, but the court upheld its ruling.

Hoping for relief, Yelp appealed the decision to the California Court of Appeal, First Appellate District, Division Four, Case No. A143233. Unfortunately for Yelp, the Appellate Court offered no relief and held that: Yelp was not aggrieved by the judgment; the default judgment which including language requesting non-party Yelp to remove the reviews from the website was proper; that Yelp had no constitutional right to notice and hearing on the trial court’s order to remove the reviews from the website; that the order to remove the reviews from Yelp and to prohibit publication of future reviews was not an improper or overly broad prior restraint; and that the Communications Decency Act (“CDA” or “Section 230”) did not bar the trial court’s order to remove the reviews.

The Appellate Court’s ruling was clearly contrary to precedent in California and elsewhere around the country. Yelp appealed the matter to the California Supreme Court, Case No. S235968, to “protect its First Amendment right as a publisher, due process right to a hearing in connection with any order that targets speech on Yelp’s website, and to preserve the integrity of the CDA” according to the blog post written by Aaron Schur, Yelp’s Deputy General Counsel. While Yelp led the charge, they were not left to fight alone.

The internet rallied in support of Yelp.  Dozens of search engines, platforms, non-profit organizations and individuals who value the free sharing of information and ideas contributed amicus letters and amicus briefs (I co-authored an amicus brief for this case) in support of Yelp, including assistance from those like UCLA Law Professor and Washington Post contributor Eugene Volokh and Public Citizen Litigator, Paul Alan Levy, whose work spotlighted the ease in which bogus court orders and default judgments are obtained for the sole purpose of getting search engines like Google to de-index content.  In case you are wondering, bogus court orders and false DMCA schemes are indeed a real problem that many online publishers face.

On April 3, 2018 the California Supreme Court heard oral argument on the case. On July 2, 2018 the Supreme Court released its 102 page opinion in a 3-1-3 decision (three on a plurality opinion, one swing concurring, and three dissenting via two opinions) holding that Hassell’s failure to name Yelp as a defendant, an end run-around tactic, did not preclude the application of CDA immunity.  The court clearly stated “we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly.  We believe the answer is no.” Based upon this win for the Internet, at least for now, online publishers in California (or those who have had this case thrown at them in demand letters or pleadings since the original trial and appellate court rulings) can breathe a sigh of relief that they cannot be forced to remove third-party content.

Aaron Shur made an important statement in concluding the Yelp blog post “…litigation is never a good substitute for customer service and responsiveness, and had the law firm avoided the courtroom and moved on, it would have saved time and money, and been able to focus more on the cases that truly matter the most – those of its clients.”  It’s important in both our professional and personal life to not get stuck staring at one tree when there is a whole forest of beauty around us.

While this is indeed a win, and returns the law back to status quo in California, it does raise some concern for some that certain comments in the opinion are signaling Congress to modify Section 230, again (referring to the recent enactment of FOSTA).  Santa Clara Law Professor, Eric Goldman broke down the Court’s lengthy opinion (a good read if you don’t want to spend the time to review the full opinion) while pointing out that “fractured opinions raise some doubts about the true holding of [the] case.”  The big question is where will things go from here?  Indeed, only time will tell.

Citation: Hassell v. Bird, 2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018)

From the #MoronFiles | Can’t Read or Lazy as F*ck?

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:

07/09/2018 #MORONFILES ENTRY:

Today, maybe I’m a bit fired up.  It’s hot as hell here in sunny Phoenix, Arizona and maybe that’s starting to aggitate me a little more than ususal.  Nevertheless, I have another #MoronFiles entry for you today.

I see a lot of demand letters on behalf of my clients; a product of respresenting different websites. The standard process is: I get a wholly ridiculous demand letter, often written by some pro-per guy (which I totally give leeway to) or attorney that doesn’t practice in the internet space, let alone the niche that revolves around Section 230 of the Communications Decency Act (a “dabbler” if you will); I respond with a TRUCK LOAD of on point law – from federal statues to federal and state case law around the country (often including law in said dabbler’s jurisdiction too) explaining why their demand is without merit (aka, total garbage).  Most of the time that works because smart people or counsel will take time to read the law and come back days later trying to work out an agreement or will otherwise find an alternative path that doesn’t involve my client.  I don’t charge them for providing this free legal education that, in my opinion, (especially if they are an attorney) they should have researched before they sent said dumpster fire of a meritless demand letter.  No big deal – I like educating people.  When the tide rises – so do all the boats, right?

This was not the experience today.  Instead, I get dumpster fire demand letter from a dabbler (I looked counsel up – NOT internet law at all – as in, as far from that as one can get) and from one of my “problem child” states (yes, certain counsel from certain states tend to suck at life more than others); I send the lengthy, but relatively PC “your demand is garbage” with all the case law; and…30 minutes later…I got a response back that said something along the lines of “I disagree with your legal analysis.”  Um, first of all, there is no way in hell you read all that case law in 30 minutes; and second, if you did read it (not possible) a response of “I disagree with your legal analysis” suggests to me that you have a reading comprehension issue. So, you can’t read or you are lazy as f*ck?  Which is it?  My guess? Lazy. As. F*ck.

The additional posturing in the response back suggests to me that this is yet another dabbler who doesn’t give two shits about his/her client and is willing to file meritless legal action, to line his/her pocket with money, with no probable benefit to the client.  Assuming that the court acts in the same manner as all the other cases in this jurisdiction that my clients and others similarly situated have dealt with, and elsewhere around the country, the action will be dismissed right away with ZERO benefit to the client.

I fricken HATE attorneys like that…and this is why this person made the #MoronFiles.  Remember, not all attorneys are created equal.  Some of us actually give a crap and will do the appropriate reasearch ahead of time instead of making you look bad or making your situation worse.

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. 

 

 

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 plaintiff 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. 

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.  

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.