It started out as an effort to keep our clients informed. Keep them out of trouble. Give the affiliates, merchants, marketers, and business citizens of the web some perspective on the risks associated with various online activities. What better way, we thought, than to tell them what we see happening everyday? We can't take them into court with us. We can't send them a copy of the lawsuits filed for, and against, our clients. Dozier Internet Law generally does not even discuss most of the cases we handle, except in general terms.
Why is it important for clients to understand what can get them sued? Because, in the online world where marketing and business tactics evolve more quickly than the legal system can deal with, we often cannot speak of legality in an absolute sense. The fact is that among affiliate marketers, as an example, there is some black and white. Black hat tactics in the US will likely lead, eventually, to financial ruin through legal implications. In other words, you'll get sued or arrested. White hat tactics won't likely get you in legal trouble. But it will be difficult to effectively compete as an affiliate marketer. So, almost every affiliate marketer operates in a gray area in some respect; using strategies, tactics and practices that are neither clearly legal nor clearly illegal. Within this wide spectrum (Dozier Internet Law suggests 80% of the business practices used might be gray hat) there are individuals and businesses with different appetites for risk. And, of course, the businesses often weigh the risk with the anticipated reward in deciding what to do. That is how decisions are made in the world of affiliate marketing, and probably a big reason why the industry is extremely fragmented and the home of mostly very small businesses. It is an arena in which the Fortune 500 could not compete because they are relatively risk averse and not as "entrepreneurial" as the small mom and pop affiliate marketer.
Our initial thought was to provide a listing of all of the Federal law suits filed each week. Then we decided to add lawyer prepared summaries as case notes for ease of understanding by our business clients. I then started commenting on some of the lawsuits. Today we search every morning for all copyright and trademark lawsuits filed in the US Federal Courts the previous day, retrieve and organize them, have summaries prepared by attorneys...and then I select the most interesting cases and offer high level comments on the lessons to be learned by online businesses. Thus, the Dozier Internet Law Federal Court Report, previously delivered as a newsletter to our friends and clients, is now available online and linked on our homepage by category of legal issue including domain name, trademark, copyright, and trade secret lawsuits. The cases are typically added each week. Businesses can learn what actions or conduct got someone sued last week, and get a better understanding of what can get them sued.
Most small businesses realize that when they get sued, they lose. The cost of litigation makes it cost prohibitive to "win" a case in most circumstances. There are plenty of comments published about every court decision of importance. What many small and mid-sized clients don't hear is that the parties to the lawsuit decision spent $100,000, $300,000 or even more to get to that point. A tough nut to crack when your small business can't afford it.
So, for everyone struggling with trying to figure out what you can and cannot do, stop waiting for a court decision to tell you, because it will likely be a long wait. After all, the issue you should be concerned with is really "litigation avoidance", and the best way to avoid litigation is to know who is getting sued, and for what.
And remember...at Dozier Internet Law, we are all about protecting the business of the web. Enjoy. For our clients and friends we meet in person at the many conferences we attend, you'll continue to receive a monthly newsletter. It will take a new form....Mr. Dozier's "top ten" lawsuit lessons of the month, not otherwise available.
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