Business

Anette B.

E-Commerce: Pros and Cons of Drop-Shipping

Drop-shipping is a popular business model in e-commerce where a retailer does not hold inventory but instead transfers customer orders and shipment details to a supplier or wholesaler, who then ships the products directly to the customer. While drop-shipping offers several advantages, it also comes with certain challenges. Let’s explore the pros and cons of drop-shipping:

Pros of Drop-shipping:

  1. Low Startup Costs: Drop-shipping eliminates the need to invest in inventory, warehousing, and shipping infrastructure, making it a cost-effective option for entrepreneurs with limited capital.
  2. Wide Product Range: As drop-shippers rely on suppliers with extensive inventories, they can offer a wide range of products without managing physical stock.
  3. Flexibility and Scalability: Drop-shipping allows businesses to test various product lines and adjust their offerings quickly based on customer demand. It also offers scalability without the limitations of managing inventory.
  4. Location Independence: Drop-shipping businesses can be managed from anywhere, as long as there is an internet connection. This allows for greater flexibility in work arrangements.
  5. Reduced Risk: Since the drop-shipper does not pre-purchase products, they are not exposed to the risk of unsold inventory or slow-moving goods.

Cons of Drop-shipping:

  1. Lower Profit Margins: Drop-shipping often involves lower profit margins compared to traditional retail models due to the additional costs involved in paying suppliers and shipping fees.
  2. Inventory and Product Quality Control: Drop-shippers rely on third-party suppliers for inventory, which can lead to challenges in monitoring product quality, availability, and shipping times.
  3. Order Fulfillment Challenges: As drop-shipping involves multiple parties, there is a risk of miscommunication and delays in order fulfillment, potentially leading to customer dissatisfaction.
  4. Branding and Customer Relationships: Drop-shippers have limited control over packaging, branding, and customer experience, which may impact their ability to build a strong brand and lasting customer relationships.
  5. Competitiveness: The low barriers to entry in drop-shipping can lead to increased competition, making it challenging to stand out in a crowded market.
  6. Supplier Reliability: The success of drop-shipping heavily relies on the reliability and efficiency of suppliers. If a supplier fails to deliver on time or experiences stock shortages, it can directly impact the drop-shipper’s business. Depending on your vendor’s terms of service, you may have little recourse for errors to boot.
  7. Profit Margin Compression: As more retailers enter the drop-shipping space, suppliers may increase product prices or charge additional fees, leading to reduced profit margins for the drop-shipper.

In conclusion, drop-shipping offers a flexible and cost-effective way to start an e-commerce business, but it also comes with inherent challenges. Entrepreneurs considering drop-shipping should carefully weigh the pros and cons to determine if this business model aligns with their goals and capabilities. Proper supplier selection, effective communication, and a focus on providing a positive customer experience can help mitigate some of the challenges associated with drop-shipping.

Disclaimer: This information is intended to be general advice and should not be relied upon as formal legal advice. If you are looking for legal advice as to your particular situation, please contact an attorney in your jurisdiction. If you’re located within the state of Arizona, consider contacting Beebe Law, PLLC.

Anette B.

The Temptation of ChatGPT for Legal Contracts: Why Human Expertise Reigns Supreme

Disclaimer: This article, while reviewed and slightly edited by a real live human prior to publication, was initially drafted by ChatGPT. Even ChatGPT knows its own limitations.

In this digital age, where technology continues to advance at a rapid pace, it’s no surprise that businesses and individuals seek innovative solutions for various tasks, including legal contract creation. With the rise of AI-powered language models like ChatGPT, one might be tempted to rely on them for generating legal contracts quickly and conveniently. However, while ChatGPT and similar tools offer impressive capabilities, there are significant reasons why they fall short when it comes to formal legal contract creation.

Understanding the Temptation

ChatGPT, with its ability to generate coherent and contextually relevant text, can be alluring for those seeking a quick solution for legal contract drafting. The convenience of inputting prompts and receiving instant responses may seem enticing, especially for individuals who are not well-versed in legal language or lack the resources for professional legal assistance. The prospect of saving time and money might make ChatGPT an appealing choice at first glance.

The Limitations of ChatGPT

  1. Lack of Contextual Understanding: While ChatGPT excels in understanding and generating text based on provided prompts, it lacks the ability to truly comprehend the nuances of legal contracts and their specific legal implications. It lacks a deep understanding of legal concepts, precedents, and regulations that are crucial for creating enforceable and comprehensive contracts.
  2. Legal Accuracy and Updates: Legal landscapes are dynamic, with laws, regulations, and court rulings subject to change. ChatGPT’s training data might not encompass the most up-to-date legal information, potentially leading to inaccuracies or outdated clauses in generated contracts. Attorneys stay abreast of legal developments and ensure that contracts align with current laws and regulations.
  3. Tailored and Specific Legal Advice: Legal contracts require a personalized touch to address the unique needs and circumstances of each client. ChatGPT, while proficient in generating text, cannot provide the tailored legal advice and expertise that an attorney can offer. Attorneys can carefully analyze a client’s situation, identify potential risks, and customize contracts accordingly.
  4. Complex Legal Language: Legal contracts often utilize specialized terminology and language that carry precise legal meanings. ChatGPT may not fully grasp the intricate nuances and subtleties of legal language, potentially resulting in ambiguous or poorly drafted provisions that could be exploited or lead to disputes.
  5. Confidentiality and Security: Legal contracts often involve sensitive and confidential information. Sharing such information with a third-party AI model might raise concerns regarding data privacy and security. Working with a trusted attorney ensures the confidentiality and protection of sensitive information.

The Indispensable Role of Human Expertise

While technology can undoubtedly enhance various aspects of our lives, legal contract creation necessitates the expertise, experience, and ethical judgment that only human attorneys can provide. Attorneys possess the legal knowledge, contextual understanding, and analytical skills required to create contracts that mitigate risks, protect client interests, and ensure compliance with applicable laws.

By engaging an attorney for legal contract creation, businesses and individuals can benefit from:

  1. Tailored Advice: Attorneys can assess unique circumstances, identify potential risks, and provide advice tailored to specific needs, ensuring contracts align with individual goals and requirements.
  2. Legal Compliance: Attorneys stay updated on legal changes and ensure that contracts adhere to current laws and regulations, reducing the risk of non-compliance and legal disputes.
  3. Clarity and Precision: Attorneys are skilled in crafting precise and unambiguous contract language, minimizing the potential for misinterpretation and reducing the likelihood of future disagreements.
  4. Risk Mitigation: Attorneys understand the potential risks associated with different types of contracts and can draft provisions that protect clients from liabilities and unforeseen circumstances.
  5. Dispute Resolution: In the unfortunate event of a contract dispute, attorneys provide legal representation and guidance, leveraging their expertise to achieve favorable outcomes through negotiation, mediation, or litigation.

While ChatGPT and similar AI language models have their merits, they cannot replace the indispensable role of human attorneys in the creation of formal legal contracts. The complexities, legal nuances, and individual circumstances involved in contract drafting necessitate the knowledge, experience, and personalized advice that only human legal professionals can provide. By seeking the guidance of an attorney, individuals and businesses can ensure the creation of enforceable, comprehensive, and customized contracts that protect their interests and mitigate legal risks.

[EDITOR NOTE: Look, we get it. Everyone wants a faster way to prepare content. Lawyers are no exception. That said, it’s important to understand the difference between when ChatGPT can be a useful tool, and when it’s best to have a set of trained legal eyes looking at and thinking about something. Legal documents are not the area where you want to cut corners. If you do, there is a good chance that you will be paying a lawyer to deal with a ChatGPT mess up … because, you know, ChatGPT makes up fake law and stuff. Don’t bet the company on ChatGPT … at least not yet.]

DISCLAIMER: This is for general information purposes only. This should not be relied upon as formal legal advice. If you have a legal matter that you are concerned with, you should seek out an attorney in your jurisdiction who may be able to advise you of your rights and options.

Anette B.

Pro Se’s kitchen sink approach results in a loss – Lloyd v. Facebook

The “kitchen sink approach” isn’t an uncommon complaint claim strategy when it comes to filing lawsuits against platforms. Notwithstanding decades of precedent clearly indicating that such efforts are doomed to fail, plaintiffs still give it the ole’ college try. Ironically, and while this makes more sense with pro se plaintiffs because they don’t have the same legal training and understanding of how to research case law, pro se plaintiffs aren’t the only ones who try it … no matter how many times they lose. Indeed, even some lawyers like to get paid to make losing arguments. [Insert the hands up shrug emoji here].

Plaintiff: Susan Lloyd

Defendants: Facebook, Inc.; Meta Platforms, Inc.; Mark Zuckerberg (collectively, “Defendants”)

In this instance Plaintiff is a resident of Pennsylvania who suffers from “severe vision issues”. As such, she qualified as “disabled” under the Americans with Disabilities Act (“ADA”). Ms. Lloyd, like approximately 266 million other Americans, uses the Facebook social media platform, which as my readers likely know, is connected to, among other things, third-party advertisements.

While the full case history isn’t recited in the Court’s short opinion, it’s worth while to point out (it appears anyway with the limited record before me at this time) that the Plaintiff was afforded the opportunity to amend her complaint multiple times as the Court cites to the Third Amended Complaint (“TAC”). According to the Court Order, the TAC alleged claims violations of:

Plaintiff alleged problems with the platform – suggesting it inaccessible to disabled individuals with no arms or problems with vision (and itemized a laundry list of issues that I won’t cite here … but suffice it to say that there was a complaint about the font size not being able to be made larger). [SIDE NOTE: For those that are unaware, website accessibility is a thing, and plaintiffs can, and will, try to hold website operators (of all types, not just big ones like Facebook) accountable if they deem there to be an accessibility issue. If you want to learn a little more, you can read information that is put out on the Beebe Law website regarding ADA Website Compliance.]

Plaintiff alleged that the advertisements on Facebook were tracking her without her permission … except that users agree to Facebook’s Terms of Service (which presumably allow for that since the court brought it up). I’m not sure at what point people will realize that if you are using something for free, you ARE the product. Indeed, there are many new privacy laws being put into place throughout various states (e.g., California, Colorado, Utah, Virginia and Connecticut) but chances are, especially with large multi-national platforms, they are on top of the rules and are ensuring their compliance. If you aren’t checking your privacy settings, or blocking tracking pixels, etc., at some point that’s going to be on you. Technology gives folks ways to opt out – if you can locate it. I realize that sometimes these things can be hard to find – but often a search on Google will land you results – or just ask any late teen early 20s person. They seem to have a solid command on stuff like this these days.

Plaintiff also alleged that Defendants allowed “over 500 people to harass and bully Plaintiff on Facebook.” The alleged allegations of threats by the other users are rather disturbing and won’t be repeated here (though you can review the case for the quotes). However, Plaintiff stated that each time that she reported the harassment she, and others, were told that it didn’t violate community standards. There is more to the story where things have allegedly escalated off-line. The situation complained about, if true, is quite unsettling … and anyone with decency would be sympathetic to Plaintiff’s concerns.

[SIDE NOTE: Not to suggest that I’m suggesting what happened, if true, wasn’t something that should be looked at and addressed for the future. I’m well aware that Facebook (along with other social media) have imperfect systems. Things that shouldn’t be blocked are blocked. for example, I’ve seen images of positive quotes and peanut butter cookies be blocked or covered from initial viewing as “sensitive”. On the other hand, I’ve also seen things that (subjectively speaking but as someone who spent nearly a decade handling content moderation escalations) should be blocked, that aren’t. Like clearly spammy or scammer accounts. We all know them when we see them yet they remain even after reporting them. I’ve been frustrated by the system myself … and know well both sides of that argument. Nevertheless, if one was to take into account the sheer volume of posts and things that come in you’d realize that it’s a modern miracle that they have any system for trying to deal with such issues at all. Content moderation at scale is incredibly difficult.]

Notwithstanding the arguments offered, the court was quick to procedurally dismiss all but the breach of contract claim because the claims were already dismissed prior (Plaintiff apparently re-plead the same causes of action). More specifically, the court dismissed the ADA and Rehabilitation claim because (at least under the 9th Cir.) Facebook is not a place of public accommodation under Federal Law. [SIDE NOTE: there is a pretty deep split in the circuits on this point – so this isn’t necessarily a “get out of jail free” card if one is a website operator – especially if one may be availing themselves to the jurisdiction of another circuit that wouldn’t be so favorable. Again, if you’re curious about ADA Website Compliance, check out the Beebe Law website]. Similarly, Plaintiff’s Unruh Act claim failed because the act doesn’t apply to digital-only website such as Facebook. Plaintiff’s fraud and intentional misrepresentation claims failed because there wasn’t really any proof that Facebook intended to defraud Plaintiff and only the Terms of Service were talked about. So naturally, if you can’t back up the claims, it ends up being a wasted argument. Maybe not so clear for Pro Se litigants, but this should be pretty clear to lawyers (still doesn’t keep them from trying). Plaintiff’s claims for invasion of privacy, negligence, and negligent infliction of emotional distress failed because they are barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Again, this is another one of those situations where decades of precedent contrary to a plaintiff’s position isn’t a deterrent from trying to advance such claims anyway. Lastly, the claims against Zuckerberg were dismissed because Plaintiff didn’t allege that he was personally involved or directed the challenged acts (i.e., he isn’t an “alter ego”).

This left the breach of contract claim. Defendants in this case argued that Plaintiff’s claim for breach of contract should be dismissed because the Court lacks diversity jurisdiction over the claim because she cannot meet the amount in controversy. As the Court explains, “28 U.S.C. §1332 grants federal courts’ original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and the parties are citizens of different states.” Indeed, they are parties are from different states, however, that requirement that the amount in controversy is to exceed $75,000 is where Plaintiff met an impossible hurdle. As discussed prior, users of Facebook all agree to Facebook’s Terms of Service. Here, Plaintiff’s claim for breach of contract is based on conduct of third-party users and Facebook’s Terms of Service disclaim all liability for third-party conduct. Further, the TOS also provide, “aggregate liability arising out of.. .the [TOS] will not exceed the greater of $100 or the amount Plaintiff has paid Meta in the past twelve months.” Facebook having been around the block a time or two with litigation have definitely refined their TOS over the years to make it nearly impenetrable. I mean, never say never, BUT…good luck. Lastly, the TOS precludes damages for “lost profits, revenues, information, or data, or consequential, special indirect, exemplary, punitive, or incidental damages.” Based upon all of these issues, there is no legal way that Plaintiff could meet the required amount in controversy of $75,000. The Court dismissed the final remaining claim, breach of contract, without leave to amend, although the court did add in “[t]he Court expresses no opinion on whether Plaintiff may pursue her contract claim in state court.” One might construe that as a sympathetic signal to the Plaintiff (or other future Plaintiffs)…

There are a few takeaways from this case, in my opinion:

  1. Throwing garden variety kitchen sink claims at platforms, especially ones the size of Facebook, is likely to be a waste of ink on paper on top of the time it takes to even put the ink on the paper in the first place. If you have concerns about issues with a platform, engage the services of an Internet lawyer in your area that understands all of these things.
  2. Properly drafted, and accepted, Terms of Service for your website can be a huge shield from liability. This is why copying and pasting from some random whatever site or using a “one-size-fits-all” free form from one of those “do-it-yourself” sites is acting penny wise and pound foolish. Just hire a darn Internet lawyer to help you if you’re operating a business website. It can save you money and headache in the long run – and investment into the future of your company if you will.
  3. Website Accessibility, and related claims, is a thing! You don’t hear a lot about it because the matters don’t typically make it to court. Many of these cases settle based upon demand letters for thousands of dollars and costly remediation work … so don’t think that it can’t happen to you (if you’re operating a website for your business).

Citation: Lloyd v. Facebook, Inc., Case No. 21-cv-10075-EMC (N.D. Cal, Feb. 7, 2023)

DISCLAIMER: This is for general information only. This is not legal advice nor should it be relied upon as such. If you have concerns regarding your own specific situation, be sure to reach out to an attorney in your jurisdiction who may be able to advise you of your rights.

Anette B.

A Surgeon Can Be a Janitor, but a Janitor Can’t Be a Surgeon: Delegating Within a Zone of Genius

We hear the phrase “zone of genius” often, whether in self-help articles about unlocking your potential or figuring out how to maximize your potential at work. Sometimes you might hear one say “I’m in my zone!” as a synonymous phrase. Essentially, being in the “zone,” so to speak, is merely the mash up of your top talent and your purpose.

The article title says “a surgeon can be a janitor but a janitor can’t be a surgeon.” Think about that for a minute. In breaking this down as a preface for the rest of this conversation, let’s consider each position (a janitor and surgeon) in terms of one’s top talent and purpose. For the sake of argument, let’s assume that each person in the position, the janitor and surgeon, absolutely LOVE what they do.

If you are a janitor, your talents may lie within keeping the premises of a building/facility in tip-top shape though knowing the best chemicals to use, application and have a process in which you go about your job. The purpose is to do just that, to keep facilities clean. No doubt it is laborious work and a great, and much appreciated, trade. One might expect a modest wage from this trade. On the bright side, because college and all that jazz isn’t for everyone, you don’t have to spend years and mega $$$ to do it. If you have drive, and are willing to put in some elbow grease, you can be great in your field.

A surgeon on the other hand has talent in a steady hand and highly specialized medical knowledge. These talents are obtained through years of very specialized, and very costly education, and a specialized board certification. Their purpose is to conduct surgeries in order to help heal people, often with very serious or life threatening problems. While also laborious, and highly stressful, one can expect to be paid a much higher wage because of that specialty.

Can a surgeon be a janitor? Sure, if that person wanted to do facility maintenance no doubt they could pick up a mop or broom, roll their sleeves up, and get to work. At the same time, the surgeon would not be operating within their “zone.” Okay, now let’s reverse that. Can a janitor be a surgeon? Generally speaking, no, they cannot. That is because they haven’t had all of that specialized training and certifications, right? Also, the janitor wouldn’t be working within his/her “zone” either.

Let me give you a hypothetical: Imagine being at the hospital preparing for your heart surgery, the nurse walks in and says: Sorry, Tim (or whatever your name is) your cardiac surgeon, Dr. Miller, won’t be conducting your surgery today because he’s out with the flu. However, Ron, our most amazing janitor who was steady with a blade in taking gum off the floor last week, is going to stand in for him.

Consider another hypothetical: Imagine a busy ER, lots of trauma patients are rolling in from a serious multi-car traffic accident who all are going to need surgery. Dr. Miller is the only surgeon on staff and has to operate on all of these patients within the next 24-48 hours. Because of the number of patients who have been coming in, the hospital facility is in need of some cleaning, but janitor Ron is out on vacation for the next two days. Now imagine that the hospital president came down from his/her office to ask Dr. Miller to stop seeing patients and to mop up some floors and take out the trash.

Okay, clearly these are totally ridiculous stories and arguably would never happen. After all, would it ever really make sense to ask a janitor to be a surgeon, or for a high paid surgeon to do a janitor’s job? From a practical, and business standpoint, no, it would not. I suspect you’d agree that in a crowd of people you might more easily find people who could take on the task of being a janitor rather than one that would be qualified to be a surgeon, right? Interestingly, while it absolutely makes sense to see why a janitor can’t be a surgeon, and why a surgeon shouldn’t be asked to be a janitor…we still see this exact situation playing out…just with other fields.

Think about your own past work history. How many times have you, or someone you know, been educated/trained to do one particular job and then, from left field, management asks one to do something totally outside of the “zone.” I’m not talking like out of your comfort zone…but rather actually out of your “zone of genius” type of zone? If you are like me, you’ve been there, done that, and have a t-shirt to commemorate the frustration your felt from it.

A Note to Managers:

Hopefully you would agree that it doesn’t make sense to pay a surgeon to do janitors work. Similarly, it doesn’t make sense to have your accountant drafting your legal documents, or to have your general business lawyer trying to tackle your technology projects. Different trades require different skill sets. Of course, I’m not saying you can’t ask for occasional help with side projects here and there (especially if you are a start-up company and are lean on resources) but if you’re constantly going to the surgeon asking them to do janitor’s work – perhaps it’s time you considered engaging a janitor.

When you hire, or delegate out tasks, focus on delegating tasks within your employee’s “zone of genius.” Not only will it increase productivity (which ultimately helps the bottom line) but will also help keep moral higher and therefore reduce costly turnover. After all, no surgeon puts in all of the time, effort, and other resources that it takes to become a surgeon because they want to take over the janitor’s mopping.

Until next time friends…

Anette B.

Legal fees: 7 ways that YOU may be contributing to a higher legal bill

No one loves legal fees and with the advent of the internet, and all of these “free” forms and information online that people now have access to, many lay people seem to think that paying for a lawyer’s time is overrated or that you could have obtained the same information elsewhere for a fraction of the cost. If you are starting with that mindset, you are setting yourself up to be frustrated with your lawyer and with the inevitable bill. If that is you, save yourself and your potential lawyer some aggravation…don’t engage an attorney. Take your chances with whatever you can find online, which may or may not be right for you and your situation, and run with it. No, really. It’s not with the frustration for either of you. No business, lawyers/law firms included, want to deal with a disgruntled client/customer that is going to nickel and dime them because they think they could have gotten a better deal elsewhere. There may always be someone “better qualified” or “cheaper” although the two don’t usually coincide with one another. The question then becomes, can you have a good working relationship with your lawyer? That’s what you really want.

If you do decide to move forward with an attorney, understand that there are things that YOU might do that can make your lawyer bill even more expensive:

1) Thinking that your situation is “simple” and being stuck in that mindset even when you are told that your situation isn’t “simple.” The matter may be simple to you, but that’s because you aren’t going to think of all the same things your lawyer is. Most matters are far more complex, and have way more moving components, than what a client thinks. The more complex a matter is or the more complex the lawyer says it is, the higher the bill will likely be. Expect it. Also, no lawyer worth their salt will say “this is a slam dunk case.” If they do, run!

2) Taking a free legal template document (which is SO basic it that it likely doesn’t actually cover what you need to accomplish your goals) and asking a lawyer to review it. Chances are, no lawyer is going to look at that and think that it is a legal masterpiece; but you are going to pay them to look at it anyway, and it’s likely going in the garbage. If that is where you are starting, you are better off asking the lawyer to draft and agreement or other legal document from scratch. At least then you aren’t paying for their time to read something that they likely won’t use in the first place.

3) Not being forthcoming with information to begin with. You have to remember that your attorney doesn’t know the matter or the parties like you do. It is up to you to help get your attorney up to speed on all the specifics and timely provide them with the information they request, by the deadline they give you. Similarly, if circumstances material to your situation change, you need to tell your attorney right away. You also have to remember that if your attorney’s job is to help protect you from some other party or risk, they are going to assume, and try to prepare for, the very worst. If you have a good lawyer, they are likely going to dig and ask questions to help them do that. Some questions you may not be comfortable answering because you might feel it casts you in a bad light or is otherwise harmful to your case/matter, but it is best to answer them anyway because if you don’t, and your attorney is suspicious of the situation, they will dig for themselves and you will be expected to pay for their digging. Besides, chances are, your lawyer has heard a lot worse than what you are likely going to tell them. Think of it as talking to your doctor. If you want proper treatment, you have to divulge all the details.

4) Providing hasty inadequate answers to, or otherwise failing to actually address, your lawyer’s questions. It is a bad idea to use email or text communications like a “chat” system with your lawyer unless you want to be billed a .1 (6 minutes) for each and every communication you send and receive. Make your communications worthwhile, and provide real thought out substance, before you hit “send.” Along the same lines, if a lawyer doesn’t feel they are getting the whole story, a good one will dig for more information to find the answers to their questions and it will likely be done at your expense. It’s better to be forthcoming and provide as much information as is requested or possible (it’s better to over disclose than under disclose) and provide such information in a methodical and organized manner as you can. Don’t just dump a bunch of papers in a box and say “Here ya go!” Your lawyer will charge you the time it takes to organize all of the materials. Similarly, if you fail to answer all of the questions that your lawyer asks you, your lawyer will follow up again or find a different route to obtain the same information. You will be charged for each follow up communication and for the additional digging your attorney feels is required.

5) Providing incorrect answers to your lawyer’s questions. A good lawyer will trust the information they are given but will also verify the information provided. If your attorney finds even one answer wrong/inconsistent from prior statements given to them by you, they are not going to trust what you (or whoever) are telling them and will have to verify all of the information given to them. You should always back up your statements with the documents supporting your statements. The more time your lawyer has to spend verifying the accuracy of the information that has been provided, the bigger the bill.

6) Not heeding warnings and advice of your lawyer. A lawyer can never protect you from all risk, but they can tell you when there are major red flags and discuss ways to avoid it going forward. Asking your lawyer to move forward, especially when you want to be cutting corners on recommended due diligence, increases the risk of the transaction or situation and also makes the attorneys job 10 times harder than it needs to be. This is because without the proper information they have to try to plan for, and anticipate, all of the unknowns. The longer and harder your lawyer has to think, especially where there are unknowns, the higher the bill is likely to be.

7) Being “needy.” Attorneys aren’t often referred to as “counselors” for nothing. Many situations can be very emotional and often people want to rely on their attorney for emotional support, a safe ear, and a constant source of reassurance. It happens to the best of us! At the same time, if you are the type of person that desires a lot of interaction and attention from your attorney, you should plan on and be prepared for, a higher bill. Why? Well, you have to think that even though you are a valuable client, chances are, your lawyer has other clients and projects. If they are in the middle of a project, and you call or keep sending text messages or emails, that interrupts their train of thought and their attention is diverted to you. Your attorney has to reorient their brain to address your call, text or email and then, when they are done with your matter, they have to again reorient their brain back to whatever it was they were working on and try to figure out where they were. It can be much like working from home when you have a few small, and otherwise unattended, children. The time that they give you to vent, be it on the phone, text or via multiple emails, and the time it takes them to reorient themselves back to their prior project, may very well end up on your bill and you should expect it. Just assume a .1 (or 6 minutes), at least, to be on your bill, for every communication you initiate, regardless of the medium (e.g., email, text message, phone call). Your attorney may be kind and write off some time, but you shouldn’t expect it.  Think about it … would you go to work and then tell your boss to deduct money from your pay check even though you spent time on work projects for your boss? A lawyer’s time IS that lawyer’s product and you shouldn’t expect it to come free or at a discount.

Lawyers can be expensive, but you can lessen the financial burden by giving a little more consideration to how you interact with your lawyer. The more work , following up, or hand-holding they have to do, the bigger your bill will likely be, regardless of how “simple” you think a task is. Help them, help you, keep your legal bills lower by being mindful of your interactions with your attorney.

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.

Anette B.

“Internet Law” explained

For some reason, every time one says “lawyer” people tend to think of criminal law, family law or personal injury law.  Perhaps because those are very common.  Most people even understand the concept of a corporate or business lawyer, someone who handles trust and estates, or even one that handles intellectual property.  However, when we say “Internet Law” many people get the most confused look on their face and say: “What the heck is that?” If that is you, you’re in good company.  And, to be fair, the Internet really hasn’t been around all that long.

If you were to read the “IT law” page on Wikipedia you’d see a section related to “Internet Law” but even that page falls a little short on a solid explanation – mostly because the law that surrounds the Internet is incredibly vast and is always evolving.

When we refer to “Internet Law” we are really talking about how varying legal principles and surrounding legislation influence and govern the internet, and it’s use.  For example, “Internet Law” can incorporate many different areas of law such as privacy law, contract law and intellectual property law…all which were developed before the internet was even a thing.  You also have to think how the Internet is global and how laws and application of those laws can vary by jurisdiction.

Internet Law can include the following:

  • Laws relating to website design
  • Laws relating to online speech and censorship of the same
  • Laws relating to how trademarks are used online
  • Laws relating to what rights a copyright holder may have when their images or other content is placed and used online
  • Laws relating to Internet Service Providers and what liabilities they may have based upon data they process or store or what their users do on their platforms
  • Laws relating to resolving conflicts over domain names
  • Laws relating to advertisements on websites, through apps, and through email
  • Laws relating to how goods and services are sold online

As you can see just from the few examples listed above, a lot goes into “Internet Law” and many Internet Law attorneys will pick only a few of these areas to focus on because it can be a challenge just to keep up.  Indeed, unlike other areas of law, “Internet Law” is not static and is always evolving.

Do you think you have an Internet Law related question? 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 and individual clients and strive to 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.

 

 

 

 

Anette B.

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)

Anette B.

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 some variation of Trademark Infringement via a cease and desist letter.  I typically see them in the context of someone alleging trademark or service mark infringement because someone is using the trademark to talk about them online – most often critically – but not always.  Sometimes content creators are using a brand’s trademark to speak highly of the brand or explain how to use something.  Either way, 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 (or even a friendly, hey, could you not use our stuff), I thought it might be good to cover some basics:

What is the Purpose of Trademark Law?

Trademark law helps ensure that consumers can rely on various types of marks (trademark, service mark, etc.) to identify the source of goods or services by prohibiting competitors from using the marks in a way that would confuse consumers about the source, sponsorship, or affiliation of goods or services.

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 or services.  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.”

What is a Service mark?

A service mark, is essentially identical to a trademark, with the exception that the mark is used to identify and distinguish services rather than products.  Think of the well known service marks of American Express or Southwest Airlines. These are services marks that clearly distinguish them from other service marks like Discover or American Airlines.

Protecting your Marks.

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/content creators to take down content about your business, especially if it is critical of your business.  Chances are, in that critical 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.  
Anette B.

Five Benefits to Keeping Your Business Lawyer in the Loop

Let’s face it, the word “lawyer” for many is akin to a four letter expletive that people are offended by. Typically because it reminds people of getting sued and/or having to shell out, often unexpectedly, loads of cash that they rather have spent elsewhere…like on a vacation.  Similarly, like in all professions, not all lawyers are created equal, and not all lawyers really have their client’s financial interests at heart – after all, being a lawyer and having a law firm is a business. I personally pride myself on NOT taking advantage of my clients…giving them direction on how they can do things themselves and helping only where they REALLY need/want it…but after 18+ years in the legal field, I know that not all lawyers share my same client-friendly mindset. It is no wonder that people cringe at the thought of having to use a lawyer.

Lawyers don’t have to be a thorn in your side through.  In fact, a good lawyer can be a business’s greatest adviser and advocate – keeping in mind that a job of a lawyer is to tell you what you NEED to hear which can sometimes be very different than what you WANT to hear. All businesses should have a lawyer or two that they keep in regular contact with and it should be part of your regular business operating budget.

Before you go thinking I’m crazy, here are a few reasons that keeping your lawyer updated on the goings on of your business is advantageous:

  1. Lead Generation: Your lawyer can often be your biggest cheerleader (and lead generator) for future customers. Chances are your lawyer is tapped into many different networks.  You never know when someone they know will need your business’s products or services and a solid referral from your lawyer could be future revenue in your pocket.
  2. Idea Generator: An attorney that understands you, your business, and your goals can be an invaluable asset when it comes to creative thinking.  Brainstorming on new ideas with your lawyer may prove to be helpful in that they may be able to think of concepts outside the box for your business that you may not have already thought about.  What if that lawyer helps you generate the next million dollar idea?
  3. Cost Cutting: One thing that many lawyers are good at is organizing and streamlining processes – it’s part of the way we think.  What if your lawyer was able to give you ideas on how to streamline an existing process that will considerably help cut costs moving forward?  If a few hundred dollars for your lawyer’s time on the telephone could save you thousands of dollars in the next year, wouldn’t you do it?  Sure you would.  You’d be a fool not to.
  4.  Risk Mitigation: When you brainstorm with your lawyer on a new business concept, they can often help you plan your road-map to reach your goals and help you navigate around pitfalls that you might not even think about.  For example, when clients come to me talking about setting up a new business I always ask them the business name and ask if they have considered any reputation issues with that new business name.  The same goes for contracting issues, employee issues, etc. To that end as well, there is a LOT of bad information being circulated around on the internet. Indeed it is wise to conduct your own research but don’t you think it prudent to have your research double-checked by someone who knows where to actually find the correct information when it comes to the law? As Dr. Emily So once said, “better information means better ideas, means better protection.”
  5. Cost Effective: It is a lot cheaper to keep your lawyer up to speed on your business as it grows, even if through a short monthly 15 minute call, than it is to try and ramp your attorney up (trying to teach them everything about your business, including policy changes and the like in a short amount of time) when you suddenly need advice in order to be reactive to a situation – like when you are named as a defendant in a lawsuit.  When you are named as a defendant in a lawsuit, you typically only have 20 days (varies by court and jurisdiction) from the date that you are served with a complaint in order to determine what your defenses are and what sort of a response you will need to file.  That process becomes a whole lot easier if your attorney already knows about you, your business, it’s policies and procedures, etc.  It is also easier to to budget in a few hundred dollars a month to keep your attorney up to date then to get smacked with a request for a $20,000.00 retainer, most of that potentially being eaten up just “learning” about your business, and then having subsequent large litigation bills.

As you can see, there are many reasons to regularly communicate with your attorney and hopefully you would find it more advantageous and beneficial than paying your monthly insurance bill. As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure!”

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.  

 

Anette B.

ADA Compliance and Websites: Yes, it’s really a thing.

I’ve said it before…it seems like everyone today has a website.  Whether you are a stay at home mom blogger, operate an e-commerce boutique shop, a local mechanic shop with a basic website or a full blown tech company – chances are you are no stranger to the internet and websites. Websites are how people find and interact with you or your company. Depending on what your website is designed for, you may have more risks to consider.  For example, as I recently discussed, if your website hosts third-party content, there are risks associated with that kind of a website.  Similarly, if your website collects email addresses so that you can later market to them, that presents an email marketing risk. This article is going to briefly discuss a new potential risk for website operators – that is compliance with the Americans with Disabilities Act of 1990 (ADA).

You might be thinking: “How could a website become an issue with the ADA?”  That was my initial reaction too until I considered people who are blind or have a hearing impairment.  It’s easy to take for granted senses that we are used to having.  Think of all the “closed captioned (cc) for the hearing impaired” text that we have heard/seen on the television in the past.  Well, how does that work for those videos that you are making and posting to your website?  How do people navigate your website if they can’t see? Until a recent conference I had never even thought about how a visually impaired person accesses the internet.  I have since discovered that the visually impaired often access the internet through a special screen reader.  JAWS seems to be the most popular and I found a few interesting YouTube videos that give a demonstration of the JAWS program from different perspectives.  If you are curious, like I was and want a unique perspective that may help you with your website accessibility, you can see two of the links I found HERE and HERE.  The second video is from a student’s perspective which has a lot of good insight – including difficulties with .pdf documents, etc.

The above examples coupled with the legal actions that have been taken against websites in relation to an ADA claim, and the fact that I am starting to see solicitations from Continuing Learning Education companies teaching attorneys how to initiate actions, sends a solid message that this is something people/businesses need to be thinking about as they move forward with their existing websites and/or build out  new websites.

THINGS TO KNOW AND UNDERSTAND:

  • The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employments, State and local government services, places of public accommodations, commercial facilities, and transportation.
  • These laws can be enforced by the Department of Justice (DOJ) through private lawsuits and indeed there are cases where the DOJ has specifically stated in rulings that websites should be designed so that they are accessible to those who have physical disabilities including vision and hearing.
  • The DOJ has already required some websites to modify their sites to comply with the ADA guidelines – see the Web Content Accessibility Guidelines (WCAG) 2.0.
  • There is no set required standards YET but it’s expected soon and they may require compliance within 12 months from the date of publication of the new standards to the public register.  If you have a big website, and perhaps a lot of changes that will need to be made, that isn’t a lot of time.

WHAT IS BEING LOOKED AT FOR COMPLIANCE?

WebAIM.org appears to be a pretty decent resource for information.  They have a pretty comprehensive checklist that may assist you and your website developing team out, however, below is a few points for consideration:

Information and user interface components must be presentable to users in ways they can perceive.

  • Guideline 1.1: Provide text alternatives for any non-text content so that it can be changed into other forms people need online – think of large print, speech, symbols or simpler language.
  • Guideline 1.2: Provide captions and alternatives for multimedia.
  • Guideline 1.3: Create content that can be presented in different ways (for example a more simplistic layout) without losing information or structure.
  • Guideline 1.4: Make it easier for users to see and hear content including separating foreground from background.

User interface components and navigation must be operable.

  • Guideline 2.1: Make all functionality available from a keyboard.
  • Guideline 2.2: Provide users enough time to read and use content.
  • Guideline 2.3: Do not design content in a way that is known to cause seizures (like flashing content)
  • Guideline 2.4: Provide ways to help users navigate, find content, and determine where they are.

Information and the operation of user interface must be understandable.

  • Guideline 3.1: Make text content readable and understandable.
  • Guideline 3.2: Make web pages appear and operate in predictable ways.
  • Guideline 3.3: Help users avoid and correct mistakes.

Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies.

  • Guideline 4.1: Maximize compatibility with current and future user agents, including assistive technologies.

WHAT IF MY WEBSITE ISN’T COMPLIANT?   

For websites that aren’t compliant the following are some things you should consider:

  • Have a 24/7 telephone number serviced by a live customer service agent who can provide access to the information on the website – the phone number must be identified on the website and be accessible using a screen reader.
  • Consider starting to make adjustments to your website to help ensure you are compliant.

NEED HELP ENSURING COMPLIANCE?

It is always a good idea to get a formal legal opinion on these kinds of matters if in doubt. Being proactive is a far better position to be in than being reactive and in a time crunch and money might be tight. If you are in the state of Arizona, and need help with suggestions on how to help make your website ADA compliant or would like to discuss this topic generally so that you have a better understanding of how this issue might impact your business, Beebe Law, PLLC can help!  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.  

 

 

Anette B.

Email Marketing | Non-Compliance with CAN-SPAM Can Be COSTLY!

So many businesses now rely on email marketing to help generate traffic and revenue. However, failure to comply with the rules set forth in the CAN-SPAM Act could be financially ruinous!

The Federal Trade Commission (“FTC”) explains that the CAN-SPAM Act “is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.”  Just how tough of penalties you ask?  Try penalties up to $40,654, for each separate email, found to be in violation!

Uneducated businesses owners, trying to save a buck by doing email marketing for themselves in lieu of a more traditional professional service, may very well unknowingly send out emails that are in violation of the rules set forth by the CAN-SPAM Act.  In fact, in spite of the connotation that might stem from its name, CAN-SPAM doesn’t just apply to email messages that are sent in bulk – you know, like what you would normally think of as “SPAM.”  The rules under the CAN-SPAM Act apply to ALL commercial email messages that are for the primary purpose of commercial advertisement or promotion of a commercial product or service.  Even emails that are to a former customer, maybe announcing a new product or service, has to comply with the CAN-SPAM Act rules….or else…potential OUTRAGEOUS penalties.  Let’s assume that you email 100 former customers; those emails were not compliant with CAN-SPAM, and assuming maximum penalties would be awarded against you, that would be $4,065,400!  Yes, you read that right.

THE MATH:  100 (non-complying emails to people) x $40,654 (the maximum penalties for violation) = $4,065,400.

Fortunately the rules are not all that difficult to comply with and the FTC’s website has provided a Compliance Guide for Business.  The basics include the following:

  1. Don’t use false or misleading header information.
  2. Don’t use deceptive subject lines.
  3. Identify the message as an advertisement.
  4. Tell recipients where you are located.
  5. Tell recipients how they can opt out from receiving future email from you.
  6. Honor opt-out requests right away.

One other key thing to remember is EVEN IF you rely on someone else to do mass email marketing for you, YOU ARE STILL RESPONSIBLE!  You cannot turn a blind-eye to your advertising communications and expect to go unscathed if those communications do not comply with the law.

It is always a good idea to get a formal legal opinion on these kinds of matters if in doubt. If you are in the state of Arizona, and are seeking assistance with ensuring that your marketing emails, are in compliance with the CAN-SPAM Act, be it ones you created yourself or if you want to double check what your marketing vendor is doing,  Beebe Law, PLLC can help!  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.  
Anette B.

So You Want to Run a Website: Common Risks When Hosting Third-Party Content

It seems like EVERYONE today has a website.  Whether it be a personal blog to a full scale business – websites are how people “find” and often “interact” with you today.  However, just like any business, it doesn’t come without risk.  This article will address a few of the most common areas where a website operator can incur liability if they want to host third-party content (i.e., you want to allow people to post and/or comment on postings).

To begin with, as I have referenced in my prior articles regarding Troubles with Defamatory Online Reviews and Content Scrapers, That Would be Harsher Punishment for internet Defamers Stan, Why Google De-Indexing May NOT be an Effective Reputation Management Solution, etc., at least in the United States, the federal law often referred to as the Communications Decency Act, aka Section 230 or the “CDA” generally immunizes websites from third-party content.  In layman’s terms, this means that an internet service provider, such as a website, is not typically liable for content written by a third-party.  That does NOT, however, mean that you don’t have to be cautious.  In fact, the intricacies of the law surrounding the CDA can be quite complex.  It would be tragic for an unsuspecting business to be sued into bankruptcy over preventable little mistakes.

The following are a few common areas of potential liability:

INTELLECTUAL PROPERTY:  Intellectual Property, including claims of Copyright and Trademark Infringement are NOT barred by the Communications Decency Act.  If a third-party puts content on your website that infringes on someone else’s Copyright or Trademark, you could be held liable.

DEVELOPING CONTENT:  Depending on how you solicit and/or edit a third-party’s content you could be held liable.  Many of plaintiffs have argued against website’s editorial decisions or even what sort of requirements/fields are built in for website users to enter information into, can take them outside of the protections of the CDA.

If you are considering starting up a new website or a business with an existing website it is wise to take these matters into account at the very beginning, or as soon as otherwise practicable.  Moreover, individuals and businesses are wise to consult an internet lawyer that practices in internet law when beginning to lay out their business plan for their website.  A consultation fee now can save you THOUSANDS in the long run.

Until next time friends…

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.  If you are in the state of Arizona, and seeking consultation in the area of infringement relating to Copyright, Trademark, or other risks associated with being a website and hosting third-party content, contact Beebe Law, PLLC today.

 

 

 

 

Anette B.

Texas Court Paving the Highway for Abuse of Anonymous Authors’ Rights One Pre-Litigation Discovery Order at a Time: Glassdoor v. Andra Group

The United States has long held close to its heart the right for authors to speak anonymously.  However, protecting an anonymous author is getting more and more difficult these days.  The March 24, 2017 ruling by the Appellate Court for the Fifth District of Texas in Glassdoor, Inc., et al. v. Andra Group, LP certainly didn’t help either.

In my practice I see volumes of subpoenas sent to websites holding third-party anonymous content requesting the anonymous author’s identifying information.   Most of the time Plaintiffs file a John or Jane Doe defamation related litigation, which preserves the statute of limitations, and then they conduct limited discovery in order to ascertain who the proper defendants are and move forward from that point.  Typically, most states have some sort of notice requirement to the anonymous author that would provide them the opportunity to appear and defend their right to remain anonymous.  In the state of Arizona we have the controlling case of Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (App. 2007).  It’s common for websites to raise objections on behalf of an anonymous author when the appropriate basic standards have not been met and, as I recently discussed in another article regarding Glassdoor, courts are ruling that websites like Glassdoor have the standing for the same.  This process, including giving author notice in a reasonable way, has always seemed fair to me.

Unfortunately, there seems to be a loophole that many Plaintiffs are taking advantage of, and it can be problematic for anonymous authors and websites alike.  I think that pre-litigation discovery tools (Illinois Rule 224, Texas Rule 202, etc.) are being abused in cases dealing with anonymous authors.   While I firmly believe that purposeful defamers and harassers should have the book thrown at them (i.e., fines, community service and/or educational requirements), often times the burdens on the plaintiff are not that high, it may not require notice to the author, and once an anonymous author’s information is revealed you can’t un-ring that bell.  I believe that pre-litigation discovery tools need either a very high threshold, have a notice requirements like that of Mobilisa or, alternatively, be barred in cases where a party is utilizing it to seek anonymous author information.

In this case Andra filed a Rule 202 petition against Glassdoor seeking to discover the anonymous reviewers’ identities relating to some ten (10) allegedly defamatory postings made about it.  Glassdoor, along with two (2) of the anonymous authors, filed an anti-SLAPP dismissal motion.  The trial court denied the motion and granted in part the Rule 202 petition which basically allowed Plaintiff to take the deposition of Glassdoor (even though claims against Glassdoor were not anticipated) regarding two (2) of the anonymous postings, not written by Glassdoor nor either Doe 1 or Doe 2, and was going to limit the deposition to five specific statements within those reviews.  Glassdoor and the anonymous authors understandably appealed the trial court’s ruling.

The Appellate court then skipped over the whole concept of anonymous free speech when it justified the trial court’s order by stating that “[k]nowing the reviews’ contents alone did not tell Andra [plaintiff] whether it had viable claims against the anonymous reviewers” and that “Andra also needed to know not only the reviewers’ relationships with Andra to evaluate potential defensive issues such as substantial truth.”  See Memorandum, p. 7.  Yeah, you read that right.  The balancing test on pages 8-10 are equally problematic and even through the trial court limited the deposition of Glassdoor to a handful of statements the author(s) of the selected statements still didn’t necessarily have notice nor necessarily the opportunity to appear and defend.  Even more troubling is the statement by the Court “[b]ut Rule 202 does not require a petitioner investigating a potential claim to show a probable right in relief on the merits.”  See Id, pg. 12.  Say what?  So a Rule 202 petition can be a BS fishing expedition, not give notice to an author of the BS fishing expedition, require a website to extend time and resources to sit for a BS fishing expedition and/or raise all defenses that may otherwise lie with the knowledge of an author, and that is all okay?  Who made up this batch of Koolaid?  How can the Court not see how this is paving the highway for abuse by plaintiffs?

You can review the entire Memorandum Opinion here: 

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Until next time friends…

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.

 

 

 

Anette B.

Why Google De-Indexing May NOT be an Effective Reputation Management Solution.

What reputation management companies should know, defamation lawyers probably already know, but clients either aren’t being warned about or the clients are willing to try it anyway…

So your client comes in and complains that someone defamed them on the internet.  You put on your Super Lawyer cape and rush in to save the day.  No problem, you’ll walk through the litigation, get a court order that tells Google to remove, block or otherwise de-index the content from their search engine and, viola!  Problem solved, right?  WRONG.

While I sort of eluded to these issues in my blog article troubles with defamatory online reviews and content scrapers, just because search engines like Google will agree to de-index (which arguably, at least in the United States, they are under no obligation to do thanks to Section 230 of the Communications Decency Act) doesn’t mean that the content goes away.  Indeed, it remains alive in many ways:

  1. The complaint that you filed, which contained the alleged defamatory language and or copies of the alleged defamatory postings is STILL part of the public court record and, in theory, always will be – most of which is accessible online;
  2. The website that hosts the alleged defamatory content may refuse (rightfully under the current US laws) to remove the content regardless of whether or not it is found to be defamatory;
  3. Google might “de-index” but they pretty much give people a road map on where to find the information via the Lumen Database and provide, where applicable, the supporting documents like a court order which, if people are smart and interested, they can find more information about the litigation through court records; and
  4. Under most privilege laws, one could write a story about the court case, even repeating verbatim the defamatory language right out of the court record, without penalty.

Indeed, if you search out a particular name in Google, and you see, at the bottom of the search results a statement about the matter having been removed from the search engine links, chances are, someone had information removed for some reason.  Typically a link to the Lumen Database is provided by Google and parties can click on that link to learn more about why the information was removed and what links were subject to being removed from the search results.

Depending on the situation, this “de-indexing” may not even last that long.  All a website has to do, if they were so inclined, is to update the URL and that would render the original URL de-index essentially useless.  The party who submit the information would then have to go back and try again by either getting another court order or resubmitting what they have to Google again – but then it could become a game of whack-a-mole and for what? The information is STILL available anyway.

I completely understand wanting to find a solution for relief for those that have genuinely been harmed online but I think there needs to be a shift from trying to bury and cover things up to providing A LOT more education regarding these issues (why people should be leery of what they read online, ways to not get themselves into these problems in the first place, constructive ways of handling issues) and perhaps, as I said recently, come up with harsher punishment for internet defamers.

Until next time friends…

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.

 

Anette B.

Should websites be able to raise objections on behalf of their anonymous users? A California Appellate Court thinks so – Glassdoor v. Superior Court (Machine Zone, Inc.)

While I sometimes think that the California courts can get things wrong, e.g. Hassell v. Bird (2016) 247 Cal.App.4th 1336, rev. granted, (thank goodness) they also, in my opinion, can get things right.  On March 10, 2017, the Sixth Appellate Court for Santa Clara County, California in the matter of Glassdoor, Inc. v. Superior Court of Santa Clara County (Machine Zone, Inc.), under Case No H042824, concluded that Glassdoor  (a website in which workers can post their own reviews about past or current employers) has standing, i.e, the authority, to assert an anonymous user’s interest in maintaining his anonymity against Machine Zone’s efforts to compel Glassdoor to identify him/her.  Can I get a fricken hallelujah!

Clearly I am elated by this ruling.  This is not only good for people who write honest reviews but also for websites that allow third parties to post content on their websites.  In my line of work I have seen parties file claims against anonymous authors sometimes alleging causes of action that wouldn’t even stand up to basic case analysis of the statute of limitations let alone anything more complicated like ensuring they have met the requirements that are necessary under state law in order for a website to release and anonymous author’s identifying information.  These parties will then submit their subpoena or some form of discovery order to a third-party website like Glassdoor and demand production of the identifying author information.  If the website’s subpoena compliance department is lead by anyone like me, chances are they have an entire checklist of criteria for their respective state that must be met prior to production.  Here in Arizona the controlling law is Mobilisa v. Doe (App. 2007) 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24.  Mobilisa requires that a requesting party show: 1) that the anonymous author has been given adequate notice and a reasonable opportunity to respond to the discovery request (which itself has specific requirements that have to be adhered to); 2) that the requesting party’s cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identify of the anonymous author (and that requires more than laying out a mere prima facie case); and 3) a balance of the parties’ competing interests needs to favor disclosure.  Indeed, Mobilisa sets out some hoops that requesting parties have to jump through in order to try and protect the rights of an anonymous author and if requesting parties don’t conform, chances are that subpoena is going to be met with objection.

While I haven’t seen it all that often, I can think of a few instances where counsel was met with my objections and they tried to argue that the website lacked standing to raise such objections.  Typically I find this to be the biggest cop out – nothing more than an effort to circumvent the rules – especially when they are met with legitimate objections like statute of limitations or failure to meet other requirements.  Many websites, like Glassdoor, will fight this if challenged and I’m pleased to see this outcome.

Absolutely the anonymous author has their rights and can assert them on their own behalf but there are many reasons why an author may not stand up and defend.  What if the author doesn’t get notice of the matter?  I have personally seen some suspicious activities going on in the past and UCLA Law Professor Eugene Volokh and Public Citizen Litigation Group attorney Paul Alan Levy have helped raised awareness about many of the same concerns that I have had.  Take for example their Washington Post article which discusses “Dozens of suspicious court cases, with missing defendants, aim at getting web pages taken down or deindexed.”  What if the author lacks the knowledge to even understand that they have a defense?  The minute that a lawsuit gets filed defendants tend to get scared – especially if they are not in a solid financial position.  It’s not uncommon for an author to stand behind their story but fear the litigation and so they bury their head in the sand in hopes that the matter will “go away.”  They may not even consider the fact that they have a defense.  It’s not as if many people have legal knowledge -even the basics – and legal departments of websites can’t be giving people legal advice.  What if the author told the truth and cant afford a defense?   Here again I am aware of a situation where a person wrote a review – alleged that the story was truthful, but got sued in another state over the posting and couldn’t afford to appear and defend the situation in the other state.  How is that justice?  I’m sorry ma’am/sir – your right to free speech is only to the extent your pocket book can pay for a defense?  

Now I’m not suggesting that websites take on the litigation defense of all of their users – that would not be economically feasible.  Websites usually have no unique knowledge that would put them in a position to argue truth as a defense or anything like that.  However, I think websites who want to help protect their anonymous authors should have the ability to stand up to those who may be simply trying to take advantage of an anonymous author’s vulnerabilities through basic objections.  If you are making claims that are so far outside the statute of limitations it isn’t even funny, OBJECTION.  You’re case couldn’t stand on it’s own anyway.  If you aren’t following the correct process under the applicable law to ensure that an author has the appropriate notice and reasonable opportunity to defend, OBJECTION.  You can always attempt to cure the deficiencies and try again.  If you can’t – well, then you probably don’t have much of a case in the first place.  It’s a whole lot easier for a website’s legal department or subpoena compliance department to look at a situation and say “Nope, try again…” or “Nope, not happening…” than it is for a user to try and teach themselves the law or hire expensive counsel (face it – even the cheap attorneys aren’t “cheap”) to teach them the law and make the same objections on their behalf – within a short period of time.

I am so glad that the Glassdoor court recognized some of these issues and considered the potential for chilling effects on free speech.  As the Court points out in Glassdoor, “…some attacks on anonymity may be mounted for their in terrorem effect on potential critics.” Glassdoor at p.12.  This is a fantastic ruling and you can review the entire 33 page ruling below or by clicking HERE.

Until next time friends…