Guide Through the Legal Jungle

When Does Cybergriping about a Business Cross the Legal Line?

If people are posting negative comments online about your business, can you do anything about it? It depends.

Not every negative statement posted online is actionable. Criticizing a person, product or service online is often referred to as cybergriping – and it is perfectly legal as long as the cybergriper sticks to the facts.

The First Amendment protects a customer’s rights to share with others the truth about any bad experiences he has had with a business. In many cases, the disgruntled customer may even use a domain name that mimics and parodies the business’ domain name – JonesCarpetCleaningIsAwful.com.

However, the cybergriper steps outside legal boundaries when his criticism includes false statements about the business and the business suffers harm as a result of the false statements. In that case, the business may have a valid legal claim that’s worthy of a lawsuit – or at least a cease-and-desist letter.

Why You Don’t Really Own Your Ebooks

As a consumer, do you own that ebook for which you just paid and which you can now access via your Kindle, Nook, iPad, or personal computer? Amazon, Barnes & Noble, Apple and other ebook vendors say you do not. To understand why you do not own your ebook, we turn to a copyright law concept called the First Sale Doctrine.

What’s the First Sale Doctrine?

The First Sale Doctrine is why we can have a market for used books, CDs, and dvds. If you are the owner of a lawfully-made, lawfully-obtained copy of a copyrighted work, the First Sale Doctrine allows you to sell, lend, or otherwise transfer that copy in any way you wish.

However, the benefits of the First Sale Doctrine apply only if you own the copy. Manufacturers often try to defeat the First Sale Doctrine by distributing their products under a license agreement. All the major ebook vendors have used this licensing approach. As a licensee rather than a purchaser, you may not freely re-sell or loan out your new ebook.

Courts sometimes strike down manufacturers’ licensing characterization. This happened in the music industry when a court decided that promotional CDs distributed by record company UMG qualified as a sale or gift and not as a license, and could therefore be legally re-sold on eBay.

Do You Merely License that Ebook?

If ebooks-as-licenses were ever challenged, there is a good chance that a court would side with the ebook vendors. When looking at this same issue in other industries, the courts have ruled in favor of a license rather than a sale when the vendor tells the consumer it’s only a license, restricts the consumer’s ability to transfer the product, and imposes restrictions on how the consumer may use the product. Ebook vendors do all three.

Even if the First Sale Doctrine did apply to ebooks, there are currently technical barriers to exercising it since many ebooks are locked into or tethered to the reader’s personal reading device. Vendors would need to establish a technical means by which consumers could transfer their ebooks.

How Copyright Blunders Push Political Campaigns Off-Course

Missteps in copyright and intellectual property law can send a political campaign off-track and off-message. Even when a copyright blunder doesn’t lead to formal legal action, it distracts from the candidate’s core political message. Here are a few intellectual property landmines on which an unwary political campaign might stumble.

Selecting the Wrong Music.

The right music can energize rally attendees and add oomph to a candidate’s televised message. In contrast, the wrong music selection can generate cease nd desist letters, lawsuits, and negative public comments from peeved musicians who don’t agree with the campaign’s views and don’t want their music associated with it. Recent political campaign music skirmishes have involved John McCain against Jackson Browne, Sarah Palin against Heart, and U.S. Senate candidate Chuck DeVore against Don Henley. Campaigns should also note that selecting music for a political ad demands more care than the selection of music for a political rally.

Failing to Acquire Domain Names and Social Media User Names.

Today’s political campaigns increasingly rely on internet communications and need to acquire appropriate domain names and social media account names. In general, domain name registrars and social media networks issue names on a first-come, first-served basis without doing any conflict check. That’s bad news for campaigns slow to secure domain names and social media account names featuring the candidate’s personal name – especially if an opponent gets them instead. While a candidate can sometimes re-claim a domain name that incorporates his personal name, under certain circumstances, it is completely legal for a campaign to use a domain name that features the personal name of an opposing candidate.

Stepping Outside Copyright Fair Use Boundaries.

Using someone else’s copyrighted work is infringement unless fair use or another exception to copyright protection applies. Unfortunately, identifying the line where fair use ends and copyright infringement begins is not always easy. Past political seasons have generated copyright infringement allegations against U.S. Senate candidate Sharron Angle, Senator Harry Reid, and U.S. Senate candidate Robin Carnahan.

Not Vetting Stock Footage.

Stock footage is pre-existing footage program producers incorporate into their productions. While there is nothing inherently wrong with using properly licensed stock footage, there can be a downside. Hillary Clinton plunged into that downside during her 2008 Presidential bid when her campaign used eight-year old stock footage in the red phone ad. The footage featured Casey Knowles as a child. The problem was the grown-up Knowles had become a staunch Barack Obama supporter and was not shy about publicly identifying herself as such. That story angle dominated coverage of Clinton’s campaign for several days.

What Happens When Your Smartphone Starts Monitoring Your Moods?

A smartphone that recognizes your mood just might be on the horizon. A recent San Diego Union Tribune article “Can smartphones get attuned to your moods?” discusses current research that would structure your music playlists based on your mood. The method determines your mood by analyzing data from sensors in the smartphone - the accelerometer, the GPS device and the microphone. Researchers are also considering getting data from monitoring keywords in the emails you send and the content of the websites you visit.

The article briefly quotes me on the privacy issues such monitoring would raise – of which there are several.

Is It Legal for Your Smartphone Provider to Collect This Information?

At the moment, internet and digital privacy is mostly self-regulated. Hence, there’s no federal law stopping the people behind your smartphone from monitoring the websites you visit and your location. However, there are lots of government officials and advocacy groups who would be happier if providers got consumer permission for such monitoring. Monitoring a person’s emails or phone calls without their permission is another matter and would  likely violate wiretapping laws, the Computer Fraud and Abuse Act, the Stored Communications Act, and other state and federal laws.

Should Consumers Grant Permission for Smartphones to Monitor Their Moods?

Maybe. There are pluses and minuses to allowing your digital equipment to have sufficient information about you to make accurate recommendations for the music, books, products, travel plans, job opportunities, etc. that may interest you. From a privacy perspective, the minus of having too much personal information about you available in the digital world is that the information may be used in ways you don’t anticipate. When information is collected about consumers, there is always someone who wants access to that information. Whether or not the people/institutions can legally access that information depends on who they are and why they want the information.