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3 Grim Legal Realities on the Web

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One of the great things about the Internet is how it makes us feel. It can easily seem like the Web is a secure, anonymous and inviting place that enables you to either get in touch with your closest friends or reach out to an audience of millions.

The Internet is home to YouTube, the site where anyone can be a TV/movie star, Facebook, the world’s largest social structure ever created and Twitter, where instant feedback and updates is the norm.

The Internet can be an inviting place and, if you’re running a blog or other website, you’ve obviously felt that call and decided to to carve out your own corner of it.

But the warm and fuzzy feelings need to be mixed with a healthy dose of caution and concern. While the Internet can be a very inviting place and definitely has many great things going for it, it also is home to some pretty grim legal realities that you need to be aware.

To be clear, these aren’t meant to stop you from enjoying the Internet, but rather, to keep you from getting so caught up in what the Internet can seem like that you do something daft that lands you in trouble.

After all, the last thing anyone wants is to end up in real-world trouble because of something they did in the virtual one… [Read more…] about 3 Grim Legal Realities on the Web

3 Areas of Law We Have Not Begun to Touch

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Phantom Touch ImageCopyright, trademark, privacy and pornography. These are all issues that, while still very much unsettled, we’ve at least begun to address online.

While not all of the answers have been great, there are signs that the law is thinking about these issues and that the wheels of justice are grinding forward.

So while that may be small comfort, it’s important to remember that there are areas of the law that we either barely have addressed or have not addressed at all.

It’s in these spaces that the next frontier of Internet law may be hiding. These may well be the areas of law to become hot topics in the coming years and they could easily be the areas that will have huge impacts on you and your sites as they rise up.

On that note, here’s a look at the areas of law that we haven’t really begun to address, but most likely will have to soon. [Read more…] about 3 Areas of Law We Have Not Begun to Touch

5 Laws Bloggers Can Be Thankful For

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When it comes to blogging and the law, we hear a great deal about what the law prohibits us from doing.

Bloggers are quick to gripe when they can’t post the music they want on their site, say what they want about another person or generally do all of the things that they want to do. For the most part, blogging (at least in the US) is governed by traditional mass media law and that law and that law was designed, mostly, to protect others from the media, not the other way around.

But that’s not to say that there aren’t parts of the law that protect bloggers and give you both powers and tools to make your life easier and your site better.

So, with that in mind, since it is nearly Thanksgiving in the US, we’re going to stop and give thanks to five laws (or sections of laws) that you can be thankful for this holiday season and beyond.

Because, while the law may mostly be a confusing morass of restriction, that doesn’t mean we can’t be grateful for the bright spots it does have. [Read more…] about 5 Laws Bloggers Can Be Thankful For

5 Reasons You Shouldn’t Fear Being Sued (Too Much)

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No one wants to be sued, ever. Most of us would rather resolve our differences through negotiation, communication and, failing that, arm wrestling, drag races or just about any other means.

Yet, when people get angry online, it seems to be that’s the first a lot of people do, threaten a lawsuit.

While you shouldn’t be reckless and infringe the rights of others, whether it’s copyright, trademark, defamation, privacy, etc., the truth is that you shouldn’t be too worried about getting sued, especially when you haven’t done something that’s clearly illegal.

As much as people like talking about suing one another, it rarely actually happens and there are several reasons for that.

However, to understand them, you have to delve a bit deeper into the legal process and see why it’s not used nearly as often as people might think for settling disputes online.

Reason 1: Cost

It’s not a hidden fact that litigation is expensive. In many parts of the U.S., $100 per hour is considered a bargain rate for an attorney and litigation takes many, many hours to even get off the ground.

For example, even a basic copyright lawsuit can take $10,000 just to get started and the costs only grow as litigation drags on, which it inevitably does much of the time.

Most people don’t have the resources to start suing everyone that they feel has wronged them and, even if they did, it probably isn’t worth the expense. Also, though some lawyers will take cases on a contingency fee basis, meaning they only get paid when you collect, those arrangements are reserved for cases where a payment is almost guaranteed.

At some point, litigation, like most things in life, is a cost/reward decision and the cost side of litigation is almost always very high.

Reason 2: Jurisdiction

If you’re having a spat online with someone else, odds are it isn’t your next door neighbor.

The modern justice system is built around a concept of jurisdiction, which determines which courts have oversight over which people/companies. That jurisdiction is built almost entirely upon geography and what city, state or country both parties are in.

Whenever people are far apart, especially in separate countries, the issue of jurisdiction becomes thorny. While it has to be taken on a case-by-case basis, often times the would-be plaintiff has to sue the would-be defendant in their hometown, meaning that they have to get a local attorney and work through an unfamiliar court system.

But even in cases where it’s possible to sue and get a judgment closer to home, enforcing that judgment, meaning collecting any money, may still be impossible without taking legal action closer to the defendants home.

In short, the distance between the two parties often makes litigation either impractical or impossible.

Reason 3: Lawyers

Lawyers get a bad rap in jokes and in media, but the truth is that most attorneys are actually very good, very honest and very nice people.

Part of that means representing their client’s interests to the best of their abilities and that, usually, means keeping them out of court.

The truth is that trials are expensive, risky and usually not in the best interest of either party. It’s usually better to settle things out of court or, even better, before a lawsuit at all.

There’s a saying that lawyers who do their jobs the best litigate the least and that is typically very true.

Reason 4: Time and Headache

This one is fairly simple, when most people are in a dispute they want a quick resolution. However, if you go the litigious route and there is no settlement, if the case isn’t quickly tossed it will likely take years before there’s any kind of resolution and that says nothing about appeals.

The entire time the lawsuit is going on, it’s part of your life. You worry about it, it’s a cloud over your head and a burden on your shoulders.

Most people don’t want this, no matter how upset they are, and most attorneys know this and it’s a big part of why they motivate their clients to resolve things out of court whenever possible.

Why take on such a large burden when it’s much easier to just let things go? That’s what most people realize after they calm down.

Reason 5: Enforcing Judgments

There’s a big separation between what the law says someone can collect and what they can actually collect.

While judgment amounts are often eye-poppingly large, the fact is large sums are often not collected unless they are against large corporations or the very wealthy.

Even smaller judgments, such as $25,000, which is attainable in small claims court in Tennessee, is beyond the reach of many people.

To make matters worse, in the U.S., many, if not most, legal judgements can be discharged in bankruptcy.

In short, it’s possible to go the distance with a case, get a judgment against someone and still not receive a penny from it. In fact, it’s actually very common.

Just another reason why people and their lawyers hesitate to sue.

Bottom Line

Is this to say you can’t be sued or won’t be? Of course not. However, it shows why 99+% of the people who threaten to sue you will never go through it. It’s simply not a practical way to resolve most disputes online.

The simple truth is that the reasons you fear being sued are the same reasons that others will hesitate, once they cool down, to sue you. While it’s definitely better to be the plaintiff than the defendant in most cases, it’s not easy or fun for either side.

That being said, you should still be careful online and do your best to not break the law and put yourself in a situation where you could justly be sued.

Not only might you find yourself in a situation where it is viable to sue you, you could also encounter the someone with the resources and the drive to push the case forward at almost any cost.

After all, it only takes one match of the right person and the right incident to make your life much more difficult. Though virtually none of the people who threaten to sue will go through with it, there’s no reason to tempt fate either.

The risk just isn’t worth the reward.

Avoiding the Legal Perils of Video Blogging

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YouTube LogoBlogging is increasingly becoming a multimedia activity with more writers also adding images, audio and video to their sites.

But while video blogging, or vlogging, is a great way to reach out to a new audience and engage your existing audience in a new way, it brings with it a whole new set of legal risks and challenges that have to be overcome.

This is not only because you’re working with a different medium, but because you’re working with different hosts and using different systems to get your work out there.

In short, even if the laws don’t really change that much when you make the jump to video, the practical realities do change a great deal. If you’re not ready for them, you could be dealing with having your videos muted, pulled offline or even losing your whole account.

Here’s a few quick tips for avoiding the biggest legal pitfalls when it comes to video blogging. [Read more…] about Avoiding the Legal Perils of Video Blogging

The Contracts You Sign to Run a Site

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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.

Performancing Blogosphere Roundup – May 18, 2010

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You might already know that social news and voting site Digg is undergoing some changes that’ll be rolled out in the near future. But if you want a glimpse of what the changes might be, TechCrunch has an annotated version of a picture that Digg CEO Kevin Rose tweeted over the weekend, with a bit of an analysis. The picture is of Rose’s MacBook Pro screen, though the sun’s glare makes it a bit difficult to see much. (An updated picture, albeit smaller, shows the screen more clearly.) From TechCrunch has gleaned, it appears that the new Digg will be even more social, with user avatars showing more prominently, embedded status updates related to story items and more. [Image courtesy of X64bit.]

Do you do a lot of downloading, screen captures, podcasting, video blogging or screencasting? Well then Seagate has a monster hard drive for growing data storage needs. Thinq is reporting that Seagate has confirmed an upcoming 3TB drive for later this year. That’s TeraBytes, as in 1,000 times a GigaByte. My MacBook Pro’s 500GB drive is filling up awfully fast, but that’s due to photo and video work I’m doing with my wife, a filmmaker. I have a few internal drives in my blogging setup, though one is for backups and the other requires two USB ports and gets whiny sometimes and simply doesn’t function. While a 3TB drive does sound tempting, from a purely mechanical point of view, I’d much rather have three 1TB drives or six 500GB drives. This would allow you to assign drives for different purposes, and if one fails, you don’t lose all your data.

Postrank is reporting that traditional hosted blog platforms such as Blogspot, WordPress and Typepad are still way ahead of supposedly popular microblogging services such as Tumblr and Posterous. ReadWriteWeb’s Marshall Kirkpatrick provides a bit of an analysis of the Postrank report, showing that Blogger is the king of comments. But while hosted blog services serve their purpose, if you’re trying to build a brand, you want to host your own blog, using WordPress, Drupal, Moveable Type, Joomla, Expression Engine, etc.

The EFF (Electronic Frontier Foundation) has published a report (PDF, 19 pages) on their findings of a experiment to study browser signatures. It appears that even if you have cookies turned off, 8 in 10 browsers still leave a unique, trackable signature, like a fingerprint, that could be used to track your surfing — especially if you have Adobe Flash or Java plugins installed. That doesn’t necessarily mean the government is watching you, but rather that it would be a boon to marketers. Of course, there’s an inherent violation of privacy if your browser is ratting you out. On a related note, even the speed and rhythm with which you type in a site’s password could give you away.

Twitter geotagging: Will you be using the new service?

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Do you Twitter from your mobile device while on the go, or do you tend to use the service from the comfort of your home computer?

Twitter’s recent announcement that it has added geotagging capabilities to its API means that we will soon see a number of third-party Twitter applications taking advantage of that.

Geotagging is one of the latest crazes, it seems, with many devices now containing GPS devices and making the task very easy.

Yet, while taking photos and geotagging them some time later has few privacy concerns (assuming you’ve granted permission to share the photos on a service such as Flickr), tweeting from an identifiable location raises some possible concerns.

Whereas manual tweeting means you can be a little vague about your exact location (West London, for example), broadcasting your GPS location means it’s possible for people to track where you are.

In the ideal, friendly world, this is a fantastic feature because it allows you to find your friends and other interesting people.

Without being alarmist, a slightly more sinister world may require some care to be taken. After all, unless you’ve made your Twitter account private, you could be tracked by anyone, and the fact that geotagging happens with each tweet means you can’t even delay revealing your current location.

What do you think of geotagging for tweets? Will you be using the new feature?