Skip links

Performancing

Main navigation

jonathan

The Pyramid of Legal Conflict

by

Pyramid Image

Whenever the Supreme Court rules on an important or a controversial case, the media is often out in full force and the nation, or at least those interested in that area of law, are watching very closely for the decision.

The reasons are clear. A Supreme Court decision is just that, supreme. It can not be appealed and all of the lower counts in the land will be looking to that decision for guidance.

But how does a dispute reach the Supreme Court? The truth is that its highly unlikely any conflict will ever reach that level. Whether it’s a dispute between you and your neighbor or two giant companies, every disagreement starts out with almost no chance of reaching the highest court of the land.

To understand just how rare that is and why, we have to take a look at the pyramid of conflict and see just how many opportunities there are for a dispute to be resolved before then and why so few ever reach that level. [Read more…] about The Pyramid of Legal Conflict

3 Ways Reality Trumps Law

by

Dice and Money ImageOnline, we like to talk about what that law says. Plenty of people will give you a rundown of what is and what is not considered legal in a variety of areas of law, including copyright, trademark, defamation (libel), advertising, privacy and so forth.

However, for all of the talk of what the law says, there’s one very serious problem that gets in the way routinely: Reality trumps law.

You see, while the law is an important tool for trying to make the world a more fair place, it’s limited in how it can work, just like any other tool. Sometimes these limitations can be seen as positive things but often times they create unbalance and inequality in the very places it was supposed to fix those issues.

With that in mind, here are just three ways that the court of law, in particular civil law, are limited and why, sometimes, unlawful things go unpunished. [Read more…] about 3 Ways Reality Trumps Law

How to Write a Proper Copyright Notice

by

Even if you are completely unfamiliar with copyright law, you’re probably aware that most websites have some kind of copyright notice in their footer and, as such, you probably should too.

However, anything worth doing is worth doing well and, while a copyright notice isn’t particularly difficult, doing it wrong may create confusion or, in worst-case scenarios, thorny issues that may have to be cleared up should a dispute arise.

So how do you create a solid, functional copyright notice? There’s no one set formula on how to do it, but the best notices all have a set of components and convey several pieces of important information.

With that in mind, the best place to start answering the question is by looking at the purpose a copyright notice serves and how it can serve it. [Read more…] about How to Write a Proper Copyright Notice

What the Google/Oracle Ruling Means to Bloggers

by

JAVA ImageLast week, Google won a major victory in its lawsuit against Oracle. The case, which centers around Google’s implementation of JAVA in the Android operating system, has gotten a lot of press in tech circles, especially for those interested in mobile devices.

However, The true impact of the ruling will likely be felt by almost anyone who uses a computer, but especially anyone who is blogging or routinely posting content on the Web, such as bloggers. Or at least it could have been.

That makes it important to really understand what the case was about, what the judge said and what that could mean for other potential cases in the future.

Though it’s a ruling that is seemingly just one part of a much larger case, it has the potential to become one of the most important legal rulings in the development of the Web and, possibly, modern computing in general. [Read more…] about What the Google/Oracle Ruling Means to Bloggers

The Contracts You Sign to Run a Site

by

Contract ImageThough running a website might seem like a solitary endeavor at times, the truth is that pretty much nobody does it alone. You’re dependent on other companies to provide you the services you need to get your site online and keep it going.

However, those services are never truly free. Even if you don’t pay for them with cash, you still have to surrender various rights and privileges in order to make those services work. Even a company with no nefarious intentions, legally, needs guarantees and permissions from you to function.

These permissions and promises are handled in the form of terms of services (TOSes) that these companies get you to agree to before registering. These TOSes, though rarely read, are fundamentally contracts that you can and will be held accountable to.

But so few webmasters think twice before accepting the TOS on a new service and even fewer think about just how many they’ve agreed to just to keep their site online.

So, rather than going through and trying to highlight every thing you’ve surrendered with a click on a TOS, I’m going to go over some of the more common types of services that people register for when building a site and what the TOSes for those services routinely include. The idea isn’t to tell you what you have done, but what you might have done and what you need to look for when reviewing a site’s terms.

1. Web Hosting

Of all the contracts you have to sign, the agreement with your Web host is probably the most important for your site itself. Your Web host is what gets your site online and makes it visible to the world.

However, to do that, your host needs a broad range of rights in your work, including your text, photos and other content you upload to the service. From a copyright standpoint, this includes a right to display, modify (create derivative works) and, if the host is a commercial one that will be displaying their ads along with your content, commercial rights to your work.

Nearly all hosts take these rights on a non-exclusive basis, meaning that you can post it elsewhere, but when these rights terminate (and the host can no longer use the work) is often a thorny issue as sometimes deleting a work is not enough.

Perhaps more worrisome than the copyright issues is indemnification, where you agree to pay any legal expenses that the host may incur for your actions. This can include any legal damages and attorney’s fees if your host is sued but also any other losses they suffer.

Generally, this is limited to anything you do in violation of their TOS, but some hosts broaden it to anything, meaning that even legal activity that the host gets sued for could force you to pay their legal bills.

Always remember that your host has to protect its interests and is going to do everything it can to protect itself from any legal issues that could arise from your account.

2. CMS/Blogging Platform

Unless you use a host that has a built-in platform, such as Blogger or Tumblr, you likely had to download and install your own blogging platform or other CMS, such as WordPress, Drupal, Joomla, etc.

Most major platforms are licensed under the GPL or a different open source license. These actually grant you a lot of rights to use the work, including for commercial purposes, for free and gives you freedom to modify it as you see fit.

However, you also make several sacrifices as well. For one, if something goes wrong and the software harms you in a way (losing your data, etc.) there’s no legal recourse. This is common in nearly all software licenses, not just open source ones. Also, if you make changes to the platform and distribute them, you, depending on the exact license, will likely have to distribute the source code of your changes and license them under the same terms.

These might be small prices to pay for a robust, blogging platform but they are still issues to consider.

3. Media Host

If you use a media host to store and display multimedia content, such as YouTube, Soundcloud, Blip.TV, etc. they have largely the same set of requirements as a traditional host (including copyright and indemnification). However, expect to give up more copyrights in the work as the more involved service needs greater permission to convert your work into a format that can be seen online. Likewise, they’re going to want more broad commercial rights to display ads.

However, you’re also going to have greater and greater limitations with what you can do with the service. Though all hosts will prohibit you from putting up illegal content (for obvious reasons), media hosts are generally more interested in preserving community standards, such as YouTube’s community guidelines. Failure to follow these guidelines can result in videos being removed, accounts shuttered and, if you were earning money from views, lost revenue.

With media hosts, especially those that are paying you, expect a lot more oversight into what you’re doing, both in terms of what their TOS allows and in their enforcement of it.

4. Social Networking

Social networking sites have many of the same issues of copyright and indemnification that other kinds of hosts have. This makes sense because it basically is another Web host with social elements.

However, with social networking comes a whole new slate of concerns related to privacy. There are serious questions with these services regarding how much of your data they have, who they can share it with and when and the issues aren’t going away any time soon.

Of particular interest is what social networks can share with third parties, including advertisers, who may be interested in the data for the purpose of delivering better-targeted ads. However, since most social networks maintain a presence across the Web, that issue does not end when you leave the site and, if you embed social networking elements on your site, could involve your domain.

As a result, with social networking, it’s not enough to think about your interests, but also the interest and privacy of your visitors as well.

Bottom Line

As overwhelming as all of this might seem, it’s important to remember that these are just a small part of the much bigger picture. In addition to these services, you also likely use email, instant messaging, play games, video chat, VOIP and more, all with different contracts to look at and agree to.

This is why it’s important to read through a TOS before hitting “accept”. Otherwise, you’ll have no idea what you are agreeing to and what implications that might have for you down the road. While these contracts are necessary for companies to be able to host and display your content, they’re also an opportunity for overreaching, either out of fear or malice.

You need to protect your interests and the interests of your readers when you’re registering for services because these companies will not do it for you. Their contracts are written to protect them, not you, and it’s important to never forget that.

Failure to do so could wind up being very costly and put you in a very difficult situation later on.

5 Bad Pieces of Legal Advice Bloggers Get Regularly

by

When it comes to the Web, there are a lot of people out there willing to give you free legal advice. Unfortunately, much of it is outright wrong and it can be very dangerous.

While, fortunately, many of these legal misconceptions have been slowly dying off as the Web has become more and more aware of these issues, some have managed to stick around and get circulated repeatedly.

So, before you fall victim to some bad legal advice you found online, here’s a few of the more common (and more dangerous) pieces you are likely to encounter.

1. Fair Use Will Protect You

A lot of people believe that just about any copying can be justified as a “fair use”, especially when it’s used on a blog or in a YouTube channel.

The truth is that fair use can’t actually protect you from anything. Fair use is not a right, it’s a defense that has to be asserted after you’ve been sued. It’s basically saying that the use was infringing, but that you are not liable for damages because the use was fair.

Asserting a fair use defense and winning it is expensive, time-consuming and risky. The only reason more people aren’t sued over fair use cases is because filing lawsuits, especially ones likely to fail, is also expensive and time-consuming.

Furthermore, fair use is actually a very narrow set of exemptions in the law based on four factors that has to be weighed by a judge and/or jury. Until such a ruling comes down, all one can do is say what is likely a fair use and what is likely not.

In short, fair use is always a gamble. However, this doesn’t mean that it isn’t important for bloggers, just that it isn’t a free pass to copy what you want without a second thought.

2. You Can’t Get in Trouble if It’s the Truth

While honesty is certainly an admirable quality in blogging, it isn’t an absolute guarantee that you won’t run into any legal trouble.

Though truth is a defense in a defamation case, meaning someone can’t win a libel suit if what you said that hurt their reputation is true, there’s a huge difference between what is true and what you can prove is true.

If you attempt to assert a truth defense, the burden of proof is on you. Proving something is true is often difficult even when it clearly is the case. If you don’t have the evidence to back up your claims, a truth defense is almost useless.

But even if you can prove something to be true, if the facts are also private, then you’re looking at a privacy lawsuit, for which truth is not a defense at all. Divulging private facts about others is never a good idea ethically or legally, regardless of the veracity of those facts.

3. Everything on the Web is Public Domain

This myth and piece of bad advice comes from a confusion in terminology. Legally, the term “public domain” means that something is without copyright protection and can be freely copied. However, to a layperson, the term “public domain” means something that is out in the public, meaning everything on the Web.

Unfortunately, it’s very easy for something to be in the public domain in the common sense of the word but not be in the public domain in the legal sense. In fact, with current copyright law, everything enjoys copyright protection from the moment it is created and does so, in cases of individual authorship, for the life of the author plus seventy years (in the U.S.).

What this means is that very little on the Web is actually in the public domain and it’s best to assume that everything you see online is copyrighted until you can prove otherwise.

4. If I’m Being Funny, It’s OK

There’s a mentality among many online that the court jester can do things the serious blogger can not. Basically, many believe that, as long as you’re being humorous about what you’re saying and doing, that there won’t be any legal consequences.

Unfortunately, that’s far from the case.

On matters of copyright, while it is true that parody is heavily protected under fair use (see the caveats to that above) satire is not. Parody means using a copyrighted work to make fun of the work itself where satire is using a work to make fun of something else, usually society at large.

Parody, such as what Weird Al does with most of his music, is generally acceptable under the law but using a song to overlay in a video to make fun of the contents of that video is not as protected, at least not as parody. In short, using copyrighted content to make fun of something other than that content itself is still likely an infringement.

From a defamation standpoint, comedy can protect you in the statements are so outlandish that they are unbelievable but even things said in jest, if they can be believed and harm someone’s reputation, can put you on the wrong end of a lawsuit.

In short, even when joking, be careful what you say or do.

5. I’m Anonymous, No One Will Find Me

Finally, if you want to ignore all sane legal advice and do stupid things on the Web, there seems to be many who believe that there’s a “Get Out of Jail Free” card in simply not putting your name to anything you do. Basically, the idea is that if no one knows who you are, they can’t sue or arrest you.

While that is true in theory, the problem is that complete anonymity is almost impossible online. While not putting your name to your work certainly makes you harder to locate, someone sufficiently motivated, most likely, can still find out.

Your IPSs, email providers, social networks and other services you use can all be compelled to give information against you. Furthermore, as you travel the Web, you are leaving traces everywhere you go data that can be accessed by those eager to build a case against you.

Perfect anonymity online requires not just a great deal of technical knowledge, but, more importantly, that you be flawless with its execution at all times you’re online. In short, it’s probably not worth the trouble unless you’re doing something pretty serious.

In short, while anonymous blogging might keep your boss or spouse from knowing what you’re writing online, don’t expect it to provide too much legal protectin.

Bottom Line

In the end, the old adage about not believing everything you read online holds doubly true for legal advice. Take everything you read with a grain of salt (including this column) and check your sources.

When in doubt, ask an attorney or, at the very least, do your own research.

Getting these facts right is important if you want to stay out of court, so its worth taking the time to understand what’s going on.

5 Areas of Law Every Blogger Should Know

by

Lawbreaker ImageBlogging is an activity that is fraught with legal peril. Though most bloggers will go their entire lives without a lawsuit or a serious legal threat, it does happen and regularly.

It’s important to remember that blogging is, for the purpose of the law, the same as running your own newspaper or TV station. Every time you hit publish, what you wrote is going to be shot out to people all over the world and, with that power, comes a great deal of peril.

If you don’t want to be sued or threatened (with any seriousness) over your blogging activities, you need to take a moment and understand the laws that govern what you’re doing. I’ll be going over these areas in greater depth over the next few weeks and months here on Performancing, but for those who want to take their education into their own hands, here’s the ground your legal education should cover and why. [Read more…] about 5 Areas of Law Every Blogger Should Know

4 Questions Your Lawyer Can’t Answer

by

Law BooksContrary to what nearly every stand-up comedian says, the vast majority of lawyers are honest, hard-working and fair people. They offer a valuable service to their clients and to the community. They help people at some of their worst times and work hard to represent people in front of a complex and intimidating system.

They may be the butt of jokes, but everyone is happy to know a lawyer when they need one.

However, as talented and as useful as they are, they are still only human. They can’t predict the future, they can’t read other people’s minds and they can’t possibly know everything, even about their chosen fields.

So, if you ever find yourself needing the services of a good lawyer, bear in mind that there are many questions even the best and brightest can’t possibly answer. While there are many to choose from, here are four of the critical ones to be aware of when it comes to suing someone or being sued yourself. [Read more…] about 4 Questions Your Lawyer Can’t Answer