Websites: Who Owns Yours? · 2018-05-03 · pass off another's work as one's own. For instance, one...

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Websites: Who Owns Yours?

Presenting:Stacy E. [email protected]

But I paid for it….

Ownership does not depend on who pays for itwho pays for it.

Copyright Law

• Copyright is a form of intellectual property law that protects original works of authorship.

S C– Includes: Novels, Movies, Songs, Computer Software, Websites, etc.

© 2012 Heyl, Royster, Voelker & Allen, P.C.

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Copyright Law

• Don’t have to register with U.S. Copyright Office to have protection.

• But there are benefits to registration…

Depends on who designs

• If designed by employee within scope of employment:

– Owned by employer,

– But employment agreement encouraged.

Depends on who designs

• If developed by independent contractor (nonemployee):

– Contractor is sole owner unless:

• Joint authorship or

• Agreement stating otherwise.


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Addressing ownership in an agreement• Work made for hire agreement

– Company considered the author but does not fit every situation.

• Copyright assignment

– Language such as:

• “Company X hereby assigns all right, title, and interest in …”

• Stand alone agreement not necessary if covered in development agreement

Blah, blah, blah

Who cares about ownership so long as I still get to use it?long as I still get to use it?

Domain names

• Diamond.com

– Sold for $7.5 million in 2006

• Fund.com


• Insure.com

– Sold for $16 million in 2009

• Privatejet.com



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What about my domain name?

• Domain names are not protected by copyright law.

• Purchased from domain name registrar.

– Important who registered to.

• Whois search

– Note expiration date!

Content Issues

Presenting:Natalie D. [email protected]

Content Issues

Linking To Outside Materials


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Deep Linking

• The most straightforward case is called "deep linking," which refers to placing a link on your site that leads to a particular page (other than a homepage) within another itsite.

• Example: referring to a page’s FAQ page rather than its homepage.

• Some website owners complain that it steals traffic or disrupts the flow of their website.

Deep Linking

• From Ticketmaster v. Tickets.com opinion:Hyper linking does not itself involve a copyright violation since no copying is involved. The customer is transferred to theinvolved. The customer is transferred to the particular genuine web page of the original author. There is no deception in what is happening.

• We have found no court that has held that deep linking to another website constitutes copyright or trademark infringement.

Inline Linking (Embedding)

• Inline linking involves placing a line of HTML on your site that so that your webpage displays content directly from another site.

• For example, many bloggers embed videos from YouTube on their blogs to illustrate a point or initiate discussion. g p

• While there is some uncertainty on this point, a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material.

• However, one should not use “framing” to make it appear that the content is owned by the linking site.


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Linking to Infringing Works

• The situation changes when you knowingly link to works that clearly infringe somebody's copyright, like pirated music files or video clips of commercially distributed movies and music videos.

• In this situation, you might be liable for what is known as "contributory copyright infringement." Contributory copyright y py g g y py ginfringement occurs by "intentionally inducing or encouraging direct infringement" of a copyrighted work.

• As long as you do not know that a work infringes someone's copyright, then you cannot be held liable for contributory infringement for directing users to that work. On the other hand, it is not necessarily safe to simply claim that you "didn't know" when the circumstances make it clear the material you link to is infringing.

Miscellaneous Linking Problems

• Passing Off. One can also use a link to pass off another's work as one's own. For instance, one could tell the reader to click here to see some of your best writtenhere to see some of your best written articles, and link to articles written by someone else.

• Defamation. Example: linking to a photograph of a person and claim that they stole your car. The link to the photograph makes it defamation.

Content Issues

Trademark Infringement


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Trademark Infringement

• Trademark Infringement. Using the mark of another in such a way as to create a likelihood of confusion, mistake and/or deception For instance that thedeception. For instance, that the defendant's products or services are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by trademark owner.

Trademark Infringement-Metatagging• A company can bury the trademark of

another company within the html code of its website. This way, when a customer enters the competitor’s mark into a searchenters the competitor s mark into a search engine, the company who has participated in metatagging will appear in the results due to the hidden tag. Some metatagsmay be used, but care must be taken to avoid trademark infringement.

Trademark Infringement-Buying Keywords• A company can also purchase search

terms from search engines to give their website a better presence

• Purchasing terms that are trademarks of a competitor can give you a better presence, but many trademark infringement lawsuits have been brought because of this practice so proceed with caution


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Content Issues

Interactive Message Boards

Defamation

Liability for Defamation by Others

• 47 U.S.C. § 230 states that websites are not liable for third party content except for federal criminal prosecutions, intellectual property claims, or claims under the Electronic Communications Privacy Act or state law equivalents AllCommunications Privacy Act or state law equivalents. All other claims predicated on third party content are preempted.

• Example: a television station in Southern Mississippi posted an allegedly defamatory article about the plaintiff to its website and allowed reader comments. The plaintiff sued the television station for defamation based on both the article and reader comments submitted in response to the article. The court dismissed her defamation claim based on reader comments per 47 U.S.C. § 230.

Disclaimer on Message Board

• http://www.bravotv.com/message-boards/rules

• Advise that you are not liable for the behavior of third parties.

• State that users are not allowed to defame, and follow up by deleting comments that are irrelevant to your site.

• Be sure to note that there is no expectation of privacy. Some sites claim they will only give out user information if they receive a subpoena.


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Subpoenas for User Information

• Once the subpoena is issued, the internet service provider generally advises the user of the subpoena.

• The user can proceed anonymously in this motion.The user can proceed anonymously in this motion.

• Either the user or the ISP can move to quash the subpoena, as courts have held that ISP can assert First Amendment rights on behalf of its providers.

• Of course, beneficial to ISP to assert this right to keep people commenting on blogs, etc. and using their sites without fear of legal trouble.

Digital Millennium Copyright Act

• Safe harbor provisions protect websites from liability for material posted by their users

• For example, if a user posts a copyrighted picture on a message board

• Failure to strictly comply with the DMCAsafe harbor provisions can increase your liability

Digital Millennium Copyright Act Cont.• Necessary steps to comply with DMCA

– Designate a DMCA agent with the copyright office

– Post the DMCA agent information online

Name address phone number and e mail• Name, address, phone number and e-mail

– Remove Known Infringing Material

– Terminate repeat offenders

– Review all direct monetary aspects of website

– Accommodate copyright owners policing the website

– Comply with notice and takedown procedures


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Collecting and Storing Personal Information

Presenting:Stacy E. [email protected]

Personally Identifiable Information (PII)

• Privacy laws may govern your business’s collection of PII.

• Depends on the law but PII generally includes:

– Names, addresses, emails, phone numbers, social security numbers, and credit card numbers.

Privacy laws

• Differs between states and countries.

– Subject to laws of the location of the person from which you are collecting information.

– Also consider location of server that is storing information.


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Privacy laws

• Differs from industry to industry.

– Financial services

• Gramm-Leach-Bliley Act

– Healthcare

• Health Insurance Portability and Accountability Act

Potential requirements

• Display or provide privacy policy

• “Opt-out” ability

• Consent for spyware softwareConsent for spyware software

• Notice to individuals if security breach

– Personal Information Protection Act, 815 ILCS530/1, et seq

Privacy Policies

• Not just a feel good document…

• May be required if:

– Collecting personal information from Co ect g pe so a o at o oCalifornia residents;

– Processing credit card transactions online;

– Collecting personal data of children under the age of 13; or

– You are in a regulated industry.


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What is in a privacy policy?

• Generally includes:

– What information you collect

– How you collect the information

– How you use the information

– Who you share the information with

– What security measures are taken with respect to information

Consequences of Data Loss

• Notices and remediation required under privacy laws

• Potential lawsuits for negligence, breach of contract, or other causes of action

• Reputation damage

• Inability to operate

PEARL TECHNOLOGY

• John Poff, Presenter

– Peoria Heights

– (309) 679-0800

– www.pearltechnology.com


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PEARL TECHNOLOGY

• How are people attacking websites?

–Top 2 are:

1 Injection Flaws1. Injection Flaws

2. Cross-site scripting

* Reference: The Open Source Web Application Project (OWASP)

PEARL TECHNOLOGY

People are getting creative with techniques like forum boosting

PEARL TECHNOLOGY

• What to do as a business owner

1. Test

2 Repair2. Repair

3. Test Again


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PEARL TECHNOLOGY

• ANY QUESTIONS?

John Poff, Presenter Pearl Technology(309) 679-0800www.pearltechnology.com

Terms of Use

• Provides protection from potential legal claims.

• Contract between website owner and user.

• Some of the benefits:

– Limit where you can be sued

– Warranty disclaimers

– Ownership and licensing terms

– Limit damages!!!

Insurance Coverage IssuesIssues

Presenting:Natalie D. [email protected]


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Insurance Coverage Issues

First Party

First Party Insurance

• Covers insured’s own actual losses and expenses and includes:

– Property insurance, fidelity insurance, and b i i t ti ibusiness interruption insurance.

First Party Risks

• Loss of data or operations due to:

– Computer hacking

– Computer Viruses and Worms

– Power disruptions

– Hardware or system failures

– Denial of Service Attacks

• A crashed system


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First Party Coverage Issues

• Insurance triggered when “direct physical loss or damage” occurs

– Most courts have interpreted physical loss or d t i f f h i ldamage to require some proof of physical or tangible damage to the insured’s property

– An insured will need to prove “physical loss”

– A Virginia court has found that computer data constituted a quantitative physical mass

• But see Nationwide Insurance Co. v. Hentz

First Party Coverage Issues Cont.• Loss of Use

– Property damage?

– Again, difference in courts. Some courts have found that physical damage is not restricted to the physical destruction or harm of a computer, but includes loss of use and functionality.

– Most courts have refused to equate the loss of intangible data with physical damage to property.

Insurance Coverage Issues

Third Party


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Third Party Insurance

• Protects the insured from actual or potential liability to someone else, such as a customer.

• Commonly in the form of commercial general liability policy.

Third Party Insurance

• Typical commercial general liability policy provides coverage for:

– “All sums which the insured shall become l ll li bl t d b flegally liable to pay as damages because of:

• A) bodily injury or property damage to which this insurance applies, caused by an occurrence, or

• B) advertising injury or personal injury to which this insurance applies, caused by an offense.”

Third Party Risks

• Loss of personal information

• Defamation

• Copyright infringement

• Trademark infringement

• Domain name disputes

• Metatag disputes

• Invasion of privacy

– Using user footprints for marketing


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Third Party Coverage Issues

• “Property Damage”

• Same dispute as with first party coverage. Courts undecided as to whether data is tangible property.

• Insurers will likely have a duty to defend if “property damage” is alleged in the underlying lawsuit, regardless if insured proves tangible property damage.

Third Party Coverage Issues Cont.• “Property Damage”

– Ex: AOL software package caused physical damage to software systems. The court held that the computer data was not “tangible property” because it could not be touched (the policy did not define tangible property, so the court construed it with its plain meaning).

– Ex: Computer tape was lost. Minnesota court held data on tape considered tangible property because wholly integrated with computer tape, which was tangible object.

Third Party Coverage Issues Cont.• Defamation

– Website publishing defamatory statement’s

– One court found insurer did not have to defend because damages of “property damage” or “bodily injury” were defined by an “occurrence”, which meant an accident and the defamation was intentional


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Third Party Coverage Issues

• “Advertising Injury”

• Standard policy forms require the offenses to be committed in the course of advertising

• Several courts have found that a website posting is an advertising activity

Third Party Coverage Issues Cont.• Examples:

– Amazon.com was sued for infringement of patented music preview technology, and a Washington court held that Amazon’s websiteWashington court held that Amazon s website exists for the purpose of promoting products for sale—this is advertising

– An Illinois court held that an insured’s alleged use of a competitor’s trademark on its website provided a sufficient link between the insured’s advertising and the plaintiff’s injury

Third Party Coverage Issues Cont.• On the other hand:

– A Massachusetts court found that where an insured was sued for copyright infringement for advertising a certain publication thefor advertising a certain publication, the information contained on the web page was strictly informational and did not “proclaim the qualities of a product” or engage in wide dissemination of the materials

– Accordingly, found that the alleged offense did not occur in the course of advertising


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Third Party Coverage Issues Cont.• Copyright coverage as “Advertising Injury”

– When an insured can demonstrate that it was alleged to have infringed a copyright in the course of advertising the chances ofcourse of advertising, the chances of coverage greatly increase

– Where an insurer tried to claim that the website was not “written or printed”, an Ohio court found that these limitations were nowhere in the policies’ definition of advertisement

Third Party Coverage Issues Cont.• On the other hand:

– In a 5th Circuit case, a company allegedly infringed on copyrighted software that allowed the company to record the identity of callersthe company to record the identity of callers

– The court ruled there was no connection between the copyright claim and advertising activities, as the software program was developed primarily for billing purposes, not advertising

Third Party Coverage Issues Cont.• Trademark coverage as “Advertising Injury”

– Insured's have long sought coverage for trademark liability disputes under the “advertising” coverages of their policies

– For example, insurer had to defend insured after the insured bought the domain name “nissan.com” and sold advertising space to car dealerships

– The insurer argued that nissan.com was only a website address, and not related to advertising

– The 4th Circuit disagreed, and maintained the insured’s domain name led consumers to its website and away from competitors, which equated to advertising


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Third Party Coverage Issues Cont.• Invasion of Privacy

– Overlap of advertising injury and personal injury coverage provisions

– Internet based publication of a social security number leading to robbery

Summary of Coverage Issues

• What is more likely covered

– Advertising injuries

– Personal injuries from invasion of privacy

• What is more likely not covered

– Defamation

– Problems relating to informative websites

• What is questionable

– Property damage – coverage for loss of data

Questions

• Stacy E. Crabtree

– [email protected]

• Natalie Thompson

– [email protected]


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Mark Your Calendar!

Upcoming Seminar

Business/Employee Record Retention and Production:

What Should I Keep and What Should be Produced?

Thursday, January 17, 2012

12:00 p.m.- 1:00 p.m.12:00 p.m. 1:00 p.m.

• Why do I need a written record retention policy and what should it look like?

• What is a “Litigation Hold Letter” and when do I need to send that to my employees?

• What records am I required to retain?

• What are the consequences of failing to retain certain records?

• What is spoliation and why should I be concerned about it?

• My business has been served with a subpoena. What are our options?


Websites: Who Owns Yours? · 2018-05-03 · pass off another's work as one's own. For instance, one...

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