Dozier Internet Law, PC: Internet Lawyer

Dozier Internet Law at AdTech San Fran

John W Dozier Jr, Esq., Founder of Dozier Internet Law, will be book signing at AdTech San Francisco this Tuesday from 10am to noon in the exhibit hall. Drop by and say hello if you are in town.

The Dozier Internet Law Federal Court Report reaches thousands of subscribers each month. We pick the best Internet lawsuits filed each month and explain what it means to your online business. And best of all....it's free. Just go to the Dozier Internet Law homepage and follow the directions for signing up. It's getting rave reviews. After all, where else can you find out who is being sued and for what? 

The offer of the day? If you are going to San Francisco...where a flower in your hair...and you'll get a free, autographed copy of "Google Bomb" when you drop by the book signing. 

Dozier Internet Law at Search Engine Strategies Conference

Join Dozier Internet Law at the SES conference in New York next week. John W Dozier Jr will be signing the "Google Bomb" book, recently recognized as one of the most important Internet law and policy books of the decade.

If you missed Mr. Dozier's presentation on the ten biggest legal risks for social media sites, contact us for a rundown of the issues discussed. We understand the PowerPoint presentation from the Miami Social Media Conference in January is on the conference site.

We had a lively debate at LeadsCon in Vegas last month in a General Session on FTC and legal compliance. Mr. Dozier will be at the LeadsCon conference in New York this summer so look him up if you are in town. 

And for those clients in California, Dozier Internet Law will be at AdTech in San Fran in April.

It's always great for those of us at Dozier Internet Law to spend some face time with clients. 

Google Launches Law Search Engine

Wow is all we can say at Dozier Internet Law. Google has just launched a robust index and search engine for legal decisions in the US. You can search by jurisdiction, subject, etc. and it will return results by relevance. It's called Google Scholar.  

Law firms have paid for research tools that generate this information over the years. Now everyone can research in a quality way the court decisions and other legal commentaries on the issue you face in the locality you live. This is groundbreaking and, as Googlers state on their blog, a real benefit to the everday man and woman on the street who simply did not have the visibility into the volumes upon volumes of caselaw buried in law libraries around the country. We'll be using it at Dozier Internet Law Monday morning. 

You should too.

Dozier Internet Law: MySpace Postings Net Criminal Conviction

Dozier Internet Law protects the reputations of professionals and businesses online, so we do our best to keep up with the latest developments about social media comments. This case was handed down this summer. In US v. Voneida the Third Circuit Court of Appeals upheld a jury conviction for postings by the defendant on his MySpace page.

There is a federal law that prohibits the transmission in interstate commerce of any communications containing any threat to injure another person. In this case, the Defendant made generalized threats that the Virginia Tech students got what they deserved and stated his support for the shooter in various ways. The appellate court held that the statements, taken as a whole, could have constituted a serious intention to inflict bodily harm, and that a communication is a threat when in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor. The court reasoned that the comments were reasonably perceived as threatening bodily injury. 

At Dozier Internet Law, we continue to see greater efforts by prosecutors to clean up the web by pursuing criminal charges in the most egregious situations. This is one of them. 

Another Great Google Bomb Book Review

Here is the link to the first review from an Internet lawyer on the Google Bomb Book. Thrilled to get such a positive reaction from an attorney who is an online defamation specialist and obviously knows the landscape out in California. We don't know each other, either, except through the reputation of our respective work.

Link: Dozier Internet Law

Dozier Internet Law: Google Makes Major AdWords Trademark Change

At Dozier Internet Law we seem to be constantly fighting the issue of online trademark infringement and online defamation and product disparagement. It's about to get much more interesting, to say the least. 

Google has announced a change to policy and will allow the use of other business trademarks in the content of AdWords advertisements. Here's the new policy:

"In the US, our policy permits use of the trademark in the ad text in the following circumstances:

• Ads which use the term in a descriptive or generic way, and not in reference to the trademark owner or the goods or services corresponding to the trademark term.
  
• Ads which use the trademark in a nominative manner to refer to the trademark or its owner, specifically:
• • Resale of the trademarked goods or services: The advertiser's site must sell (or clearly facilitate the sale of) the goods or services corresponding to a trademark term. The landing page of the ad must clearly demonstrate that a user is able to purchase the goods or services corresponding to a trademark from the advertiser.
    
  • Sale of components, replacement parts or compatible products corresponding to a trademark: The advertiser’s site must sell (or clearly facilitate the sale of) the components, replacement parts or compatible products relating to the goods or services of the trademark. The advertiser’s landing page must clearly demonstrate that a user is able to purchase the components, parts or compatible products corresponding to the trademark term from the advertiser.
    
  • Informational sites: The primary purpose of the advertiser’s site must be to provide non-competitive and informative details about the goods or services corresponding to the trademark term. Additionally, the advertiser may not sell or facilitate the sale of the goods or services of a competitor of the trademark owner."

Dozier Internet Law believes the last provision is bad for businesses trying to protect their reputation online. This opens the door for scofflaws of the web to now buy advertisements and use the target's trademark name to both trigger the ad and use the trademark in the ad content, and then point the ad to a "sucks" site or other defamatory content. While it does mirror in intent the existing law of free speech, fair use and trademark infringement, it will surely be used to attack and extort. That's the problem with this "informational use" approach. And Google apparently will be the gatekeeper for what it deems appropriate. At Dozier Internet Law, we recognize that while there will be many fair and appropriate uses of trademarks under these provisions, there will be gross abuses and this policy change will only add to the legal turmoil surrounding Google AdWords, online advertising, trademark infringement, online defamation and mobosphere misconduct.  

Dozier Internet Law on the California Issue

Dozier Internet Law litigates Internet law matters all across the country. And it is likely that whenever a complex or seemingly novel issue arises in a Court, the first thing the law clerk (or Judge for that matter) might do is Google the issue and see what is being said online. It's a natural response. But it offers up a warped perspective. 

At Dozier Internet Law we follow many of the legal commentators on the law of the web, and with little exception (our website and blog property content the obvious exception), the commentary is controlled by the left leaning liberals. As talk radio is controlled by the conservatives, online commentary is controlled by those who support the rather liberal perspectives on everything from the ownership and protection of intellectual property to the expansion of free speech. 

How did this happen? One might have thought that a conservative perspective would have developed early on since the Internet began as government projects in Northern Virginia. But the actual commercialization of the web finds its primary roots firmly embedded in San Francisco and Silicon Valley. And the "hands off" approach to legal and regulatory intervention in the online world evolved out of the liberal mindsets of the left coast, with a lot of Berkeley and Haight-Ashbury gray matter sprinkled in for good effect. 

We've been bamboozled. San Fran mindsets aren't exactly embraced in most of our country. But California got the jump on us, and the effects are becoming more evident daily. From a lawyer's perspective, at Dozier Internet Law we see alot of court decisions coming from California and the 9th Circuit (the federal appellate court in that area of the country with more decisions overturned by the Supreme Court than any other Circuit) that are held out as defining the law of the Internet by the liberal commentators. Yet, many of the decisions end up being rejected by Courts throughout the country. California courts just got the first crack at the issue. But the decision, usually anti-business and pro-free speech based, is hailed as the holy grail by the legal commentators, many of whom are blogging away either from the San Francisco area or from other liberally minded educational bastions.

Do these decisions and the overwhelming support from online professors blogging away in praise influence other judges in other cases? Probably. And that is why these types love to attack any legal commentator with a pro-business or conversative perspective.

Here's a challange. Find me one law professor offering up conservative, pro-business perspectives on the law of the web with a page rank of 3 or better on his/her blog. Just leave a link as a comment. I can list two dozen liberal lawyer professors with strong blogs, far beyond a 3 page rank. Let's put this to the test. 

My guess is that the conservative law professors are too worried about having to face their liberal colleagues and put at risk their job and their opportunity for tenure to publicly voice their opinion. And given many of the liberal commentators' nasty habits of personally attacking conservative or pro-business commentary (there are some law professors just flat out embarassing their law schools with their childish online temper tandrums) that is understandable. Maybe I am wrong. Let's see.

Dozier Internet Law's John W Dozier Jr Inks Book Deal With Major Publisher

John W Dozier, Jr., a veteran of the Internet industry and President and Founder of Dozier Internet Law, a law firm specializing exclusively in the law of the Internet, has inked a book deal with veteran publisher Health Communications, Inc. (H.C.I.) to share his perspectives on the story of Sue Scheff and online attacks.

 

Tentatively entitled “Google Bomb”, it will provide the only insider account of Sue Scheff’s historic journey to obtaining an $11.3 Million defamation judgment. John Dozier will follow Sue’s journey and provide an unprecedented perspective on the entire landscape of online attacks and the solutions for families and businesses all along the way.

 

Commenting on the book deal, Dozier said “I am thrilled to be working with HCI in telling the story of the attacks that are ruining people, their families, and their businesses overnight. It is gratifying to offer solutions that can really help people immediately. We are facing an onslaught of venom that is like a plague sweeping the country. It has to end. And it has to be stopped. It is time for a ‘tell all’, and Sue and I do just that. We want to change people’s lives so they don’t have to walk around looking over their shoulder.”

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HCI is a pioneer in the self-help field with its roots in the life-changing Chicken Soup for the Soul, 101 Stories, which inspired the best selling series of all time with over 100 million copies sold to date. You can visit the Health Communications, Inc. website for more information. Dozier Internet Law is a top rated, nationwide Internet litigation law firm specializing in protecting businesses and people online. John W. Dozier, Jr. founded his first venture backed, award winning E-commerce company in 1994 and is the lead trial lawyer.  Visit Dozier Internet Law for more information.

 

Dozier Internet Law: Signature Required for User Agreements?

We have noticed at Dozier Internet Law that the latest legal commentary coming from the far left, free speech expansionists who so aggressively oppose any attempts to impose the rule of law (and basic rules for that matter) on netizen misconduct focuses on the illegality of enforcing the terms of a user agreement on those who do not admit clicking on an acceptance button. This is more of the same...trying to come up with reasons why the MySpace suicide conviction must be overturned on appeal. Their arguments ignore any significant legal support for the enforcement of user agreements absent a clear and unequivocal assent, either by the party to be bound or its agent or an independent contractor acting with apparent authority. 

But a person is bound by a new "terms and conditions" from a credit card company without signing it.

And a person is bound by the contractual default terms on the face of an invoice received for services rendered even without a written contract.

And closer to the issue, the Courts have been enforcing User Agreements against website visitors as long as the agreement is open and conspicuous, although at least one Judge has required the contract to be "above the fold" on the homepage (whatever that is).

The legal concept that Dozier Internet Law uses most often to support enforcement is either an "implied contract", which sometimes implicates promissory estopple and detrimental reliance, or an "oral contract" for which the Court adopts the written User Agreement terms as the deal. There are also other arguments. In this regard, anyone using the web should fully expect that there are rules governing conduct when that person signs up for a website or uses the password of another to use a website. The message we should be sending out is that if you go out and act inappropriately on the site, expect to be called to account for violations of the site's Terms of Use. It's as simple as that.

And this concept of the enforcement of the User Agreements is another weapon to use as the web pursues self regulation and self policing. The web is not intended to be a lawless Wild, Wild West. It began that way, so it is a struggle to get online misconduct that was acceptable for so many years under control. But I can guarantee you one thing. No matter what the legal basis is for enforcing User Agreements against registrants and even visitors, if for some reason the Courts begin finding that existing legal principles don't allow for the enforcement of these contracts, expect UCITA (the much maligned, anti-consumer "Uniform Commerical Code of the online world") to raise its ugly head again at legislatures all across the country and in Congress. Then the liberal, free speech legal commentators will really have their hands full. A self imposed purgatory of sorts. 

And once again at Dozier Internet Law we'll be wondering whether they "couldn't see the forest for the trees". An unfortunate and seemingly recurring theme.

Dozier Internet Law: Criminalizing The Web

Dozier Internet Law has fought many a battle opposing Microsoft in litigation and I always thought of them as being very reasonable, measured and practical. So it came as a surprise to see them trumpeting a $100,000 criminal fine levied against Carmelo Cerrelli for criminal contempt of court for selling counterfeit software. Microsoft already had a $700,000 civil judgment against him and the criminal court charges apparently stemmed from the civil judgment which typically includes injunctive relief prohibiting further copyright infringement. Apparently the defendant didn't read the court order. Or maybe he did. Anyway, he now has a criminal record and a huge fine to pay. And what is the penalty for intentionally failing to pay the fine? Jail. At Dozier Internet Law we've negotiated many a settlement with Microsoft and others in which civil legal issues are dealt with by injunctions. Now, those injunctions are being used to, in effect, turn civil liability into criminal misconduct. 

In Colorado, a man accused of making unflattering online comments on Craigslist has been charged with two counts of what is being reported as "criminal libel". Once again a civil matter (defamation or privacy violations) has morphed, albeit a bit more directly, into a criminal case and a risk of incarceration of up to 18 months in jail. These charges stem from an 1800's era law that the Court will likely quickly conclude is unconstitutional on its face. Mere words, absent a clear and present danger or, in some instances, a real ability to carry through on a threat of physical violence, cannot subject someone to criminal prosecution. And this law sounds more like a privacy statute that today exists in some states as a civil law affording civil relief. If you read the law under which this prosecution is proceeding it is not a defamation or libel statute at all. There is no falsity requirement. You could be telling the truth and get prosecuted because of the impact of the disclosure. At least that is the argument that will come from the lawyer for the defendant. 

What's going on here? Is frustration with the perceived lawlessness of the web leading to an ever growing desire to step up the attacks on the aggressors? Are our civil courts so broken that the only recourse is a threat of incarceration? Dozier Internet Law has been in the middle of some interesting criminal cases dealing with what many would consider to be purely civil matters. This is a slippery slope prosecutors and police departments take when they start interjecting themselves into the online world of scofflaws and miscreants.

Oh, and I've already commented on the MySpace suicide case and the Google executives indicted. It's getting scary out there.   

Dozier Internet Law: Public Citizen Lawsuit Thrown Out of Court

A lawsuit filed by Ronald J. Riley through his lawyers at Public Citizen against Dozier Internet Law has been summarily tossed out of Federal Court in Richmond, Virginia today. Judge Henry E. Hudson, declining to even entertain oral arguments on the points, found that Riley and Public Citizen's assertions in the lawsuit don't belong in Federal Court and are nothing more than defenses to the lawsuit Dozier Internet Law had already filed in state court against Riley.

This major setback for the litigation team at Public Citizen, and Paul Levy in particular, follows by a day or so another major loss for Public Citizen in the "Jones Day" litigation in which the Federal Court refused to even consider the arguments in the brief filed by Public Citizen, Paul Levy, and others, and found for Jones Day, and against Levy's position, by rejecting motions to dismiss the trademark infringement lawsuit filed by the mega-law firm over the use of its name online. Jones Day had earlier reportedly requested the Court to discard the Public Citizen brief on the grounds that Public Citizen's lawyers were biased. 

Paul Levy, recently a labor lawyer relatively new to the online legal scene, has developed a reputation for publicly denouncing lawyers, judges, and anyone supporting legal interpretations with which he disagrees, and he continues to suffer legal setback after legal setback as his interpretations of the law are regularly rejected across the country by the Courts. 

Earlier today, the Federal Court also reinstated the lawsuit filed by Dozier Internet Law against Ronald J. Riley by rejecting Levy's arguments and returning the case to State Court for further proceedings after Riley and Levy had removed it to Federal Court. Judge Henry Hudson declined to listen to oral arguments, and then stripped Riley and Public Citizen of Federal Jurisdiction.

The briefs and orders are available on the Pacer system. Although the issues were elementary and the deficiencies of the Riley and Public Citizen arguments obvious, the briefs are informative with respect to the interesting arguments and legal positions Levy continues to offer up to the online world.

Dozier Internet Law: Google Execs Charged in Italy for Criminal Defamation?

Dozier Internet Law has commented extensively on the issue of the erosion of US influence on the law of the web. In the US, we have the immunity from liability for Google under the Communications Decency Act and some state laws, and in the US defamation is a civil matter. The concern, of course, is that we have become accustomed to following the US laws and expecting everyone else around the world to take our lead in regulating the web. 

Reuters reports that a criminal prosecutor in Italy has ordered Google executives (reportedly the former Chairman of Google Italy, a former Google Italy Board Member, the former head of Google Video for Europe, and an EU privacy executive) to appear in a Milan court on February 3, 2009 to begin to face charges of defamation and failure to exercise control over personal data.

At Dozier Internet Law we are seeing an explosion of legislation, court decisions, and regulatory enactments conflicting with the notions we hold dear to our hearts in the US. This type of situation will continue to escalate as states and countries around the world exercise their value judgments in controlling the web. In the US we already have broad free speech protections in place, and the "free speech expansionists" Dozier Internet Law deals with on a regular basis are "missing the forest for the trees". Every time they argue that notions of free expression and free speech should be extended into the online world in unprecedented ways, the global community shakes its head and says to itself..."well, there go the Americans again". A little bit of discretion and foresight might be appropriate if we are to maintain our leadership position in the law of the online world. 

I think it is unlikely the far left, liberal minded, free speech fanatics will ever change. Let's hope someone out there steps up and shows the rest of the world that the US is worthy of its leadership position in regulating the online world, and maybe then we'll have a seat at the table when the incredibly complicated international conflict of laws issues are front and center. The last I checked, the EU countries had no First Amendment, the Middle East region had no First Amendment, the African nations had no First Amendment, etc.....but they all certainly have expansive notions of the reach of their laws (known to lawyers as "personal jurisdiction"). 

So, for Dozier Internet Law business clients, celebrate the global nature of the web, appreciate the ability to reach anyone anywhere at anytime, and respect this new society for what it is...a fledgling and scary work in progress. Just ask those Google execs.

Dozier Internet Law Reports Huge Judgments Being Entered Against Web Scofflaws

At Dozier Internet Law we monitor numerous daily reports and filings, and a surge in huge Court Judgments in the last ten days suggests a trend evolving. Just today we learned of another $600,000+ monetary judgment, together with a very broad injunction. You can read about it at the Dozier Internet Law Copyright Abuse post. You can also review the other most recent significant judgments, from $50,000 to over $11 Million, based upon online defamation and other online misconduct. We have to ask ourselves at Dozier Internet Law if US businesses and professionals are finally embracing legal remedies to deal with the outrageous conduct and intellectual property theft permeating the online world today.

Dozier Internet Law: Affiliate Marketing Rules Delayed

I blogged in July on the new Red Flag ID Theft Rules developed under the Fair and Accurate Credit Transactions (FACT) Act effective November 1, 2008. Now the Federal Trade Commission has delayed enforcement of the rules until May 1, 2009. Dozier Internet Law again recommends that lead generation and affiliate marketers pay attention to the rules and prepare for compliance if the rules apply to your specific situation.

At  Dozier Internet Law we can assist affiliate marketers and others in either complying or restructuring your business processes so the rules do not apply to your operations. Sometimes simple changes can be made to avoid this regulatory mandate. 

Dozier Internet Law Comments On "Virtual World" Murder Charges

Virtual worlds are becoming very much like real worlds, fueled in part by major businesses acquiring virtual real estate. At Dozier Internet Law we are asked about doing business in these virtual environments often by businesses looking for additional sales opportunities. But with the good comes the bad.

A 43 year old female player in "Maple Story" became so angry about her sudden "virtual divorce" from a presumably ill-conceived virtual marriage to a fellow online gamer that she basically hacked into her soon to be ex's player account and murdered his avatar (avatars are digital images that represent the individual in an online community). He reported his death to police when he logged into the game and discovered his avatar was toast. Police in Japan have arrested her and jailed her for illegally accessing a computer and manipulating electronic data, a statute similar to the US Computer Fraud and Abuse Act which is being used to prosecute the lady in the MySpace hacking case who allegedly caused a young girl to commit real suicide.

And about a month ago, a woman was charged in Delaware with plotting the real life abduction of a virtual boyfriend she met on "Second Life". 

And virtual currency is like real currency to such an extent that a man was charged with stealing the ID and password of a fellow player and "swindling" virtual currency worth $360,000.

Times are changing. At Dozier Internet Law we are constantly challenged to find the right laws to apply to new facts and scenarios. It's not easy. But those who have any doubt about whether something is legal or illegal today are best advised to look to ethical and moral considerations to guide their conduct.

Dozier Internet Law on Gambling Domain Name Case

You want to start a business, so you call Dozier Internet Law to find out if it is "legal". And you find out that if you are doing business online you typically will have to comply with the laws of all states in the US. And it would cost a small fortune to really go through every state's laws and get a legal opinion on the legality of your online business. The reality sets in that you will have to assume some degree of risk, and you need help balancing risk and reward. That is where Dozier Internet Law comes in. We specialize in risk assessment and assist clients in making smart decisions.

You won't often find a balanced perspective from online legal commentary because much of it is biased due to the nature of the web and its origins. Free speechers think everything is fair, even when laws are broken, but lawyers for businesses don't often participate in the dialogue because their law firm either prohibits it, they don't see a business justification for the exposure, or they are worried about the positions they take in the context of the many cases their law firm is handling. Not to mention, of course, that public positions outside of litigation could lead to disgruntled clients. So, online you are overwhelmed with public interest and law school professor commentators: the bastions of liberal, free speech, "information yearns to be free" followers. 

What do you do, then? It's not an easy question. If you are looking for approval and validation of a business undertaking, you cannot and should not rely upon anything you see online. You really need to stay away from the idea that since others are doing it, then it must be legal. The State of Kentucky lawsuit against gambling domain names is a good example of the challenges online businesses assume.

On the one hand, Kentucky is trying to seize domain names allegedly used by gambling websites. The Court's recent ruling to allow the forfeiture process to proceed included a number of interesting, and I believe correct, decisions. First, I criticized the original seizure order, and my focus was on claims made by domain name owners not running online casinos or gambling enterprises. Judge Wingate got this issue right and rescinded the Seizure Order for domain names that identify websites which are providing information only. I agree with that conclusion on jurisidictional grounds, although the issue of commercial free speech and the liability for advertising an alleged illegal site remains a ripe issue that will be revisited at some point in the courts.

The Judge found that domain names were property subject to seizure and not simply contract rights. While a few other courts have found otherwise in years past, it seems clear to me that this conclusion is correct.

The Court's decision also addressed the oft-cited defense that any judicial interference of the Internet will create havoc. This is a poorly conceived, yet common, claim asserted by a broad range of free speech expansionsists. "This doomsday argument does not ruffle the Court. The Internet, with all its benefits and advantages to modern day commerce and life, is still not above the law...[t]he challenge here is to reign in illegal activity and abuse of the Internet within the framework of our nation's and Commonwealth's existing common law norms and principles..."

Interestingly, attorneys appeared on behalf of specific domain name owners and refused to disclose the identity of the owner. The Court ordered the lawyers to disclose the names and identities of those who hired them, and the nature of their clients' interests in the domain name. Ouch. Remember the state indictments that resulted in the gambling arrests of executives of public traded UK companies? Want to guess where this is headed? The criminal prosecutors will be listening intently, I suspect. 

So, this case is a good example of the challenges all businesses face when operating online. Any state can jump into your business. We know, because we deal with state enforcement officers regularly and have to fight the battle of convincing them that our client is not subject to their laws. On the other hand, we assert claims implicating state laws against scofflaws who attack our clients. We are on both sides of this issue often, and that is why I think we can give some pretty good, balanced guidance to our clients. Making smart business decisions as to risk and reward requires a seasoned, quality, unbiased, and objective perspective from your lawyer. 

Should these domain name owners have anticipated problems? Yes. Was it worth the risk to run an online gambling site? I guess we'll have to wait and see...but the risk has gone way up.

At Dozier Internet Law we don't represent gambling website business clients outside of the litigation context for a number of serious reasons which I will not go into here. It is clear, though, that the liabilities and risks associated with such an enterprise are virtually impossible to accurately assess. And that is becoming clearer by the day.

Dozier Internet Law: $11.3 Million Sue Scheff Defamation Judgment Confirmed on Appeal

Dozier Internet Law is constantly battling the scofflaws of the web. On the one hand, the Internet as a whole opens up the world to everyone. On the other hand, it opens up the world to, well...to everyone. Defamation laws and related judicial interpretations evolved historically at a time, and in an environment, in which there were inherent protections that served as a filter of sorts. Today those protections are lost to the ability to distribute attacks to millions overnight. Want to physically picket a business? You have to invest time and disclose your identity if you are going to coordinate and show up at a business. Want to print and distribute flyers, or take out an advertisement or run a commercial? Expensive, of course. And newspapers and television wouldn't print, even as ads or commercials, alot of the outrageous claims and statements being readily distributed online.

Once in a while, Dozier Internet Law sees comments encouraging such illegality from what might seem to be credible sources. But the application and interpretation of laws dealing with disparagement and defamation and other lawlessness will eventually catch up with the online scofflaws, and defending misconduct by claiming you saw a blog by a lawyer saying it was legal is not a defense. 

On October 15, 2008 the District Court of Appeal of the State of Florida just rejected an appeal from the Defendant and confirmed a JURY judgment on behalf of Susan Scheff in the sum of $11.3 Million, of which $5 Million was for punitive damages (on behalf of Susan Scheff and her very small business), against an individual who took it upon herself to publish allegedly defamatory statements online. Read the plaintiff's comments by Sue Scheff about "free speech".

Online defamation and product disparagement is a huge issue, of course, and businesses are under attack. This judgment is just another example of the legal system catching up with online misconduct. And instead of a real attempt to establish standards and self police and self regulate, one blogger organization has started selling insurance to bloggers. It strikes me that insurance coverage is a wonderful thing for the businesses under attack. At Dozier Internet Law we hear from dozens of victims of online blog attacks each week, it seems. The possibility of insurance coverage is great. Online defamation promises to be a growth industry for trial lawyers. Another example, I surmise, of an unanticipated and unintended consequence...but this time of mammoth proportions. 

Dozier Internet Law: Section 230 Immunity

At Dozier Internet Law we are often involved in evaluating the application of the immunity provisions of Section 230 of the Communications Decency Act. And one thing is readily apparent...there is a false sense of security and a rather expansive, and totally incorrect, analysis of what that immunity actually provides. We are often retained to evaluate for a client the business practices it should implement in order to take advantage of the immunity provisions of this statute. We also evaluate sites to determine whether immunity is available given their operations and practices. 

And, what I have found is that there is a general misunderstanding in the blogosphere as to the scope of protections under Section 230.  At Dozier Internet Law, it seems like I get alot of telephone calls from lawyers every week asking my assistance in going through this analysis. The first thing I tell them is to read, and then ignore, much of the commentary concerning Section 230 coming from the "far left". If businesses followed the advice of groups like Public Citizen, EFF, and all of their related comrades in arms out on the web, it would be foolhardy. Maybe their advice and comments are a result of a very narrow exposure to law, a lack of understanding relating to the business of the web, a bias towards the "information yearns to be free" mantra of the free speech expansionists, or more fundamental intellectual limitations.

Whatever their thought process is, the advice and guidance of the left wingers is way off base. As I said in a Continuing Legal Education program on online defamation I recently gave to lawyers, the Courts are restricting the application of the immunity. But you often do not even have to get into the analysis of what evolutionary changes are ocurring because Section 230 does not apply anyway in many circumstances.

There is a specific carve-out for intellectual property claims. The DMCA establishes a process by which a website, or web business, with third party content could be liable. Yes, they can be liable under many circumstances for "contributory copyright infringement". And there is a well recognized concept of "contributory trademark infringement" that creates liability for those knowingly assisting trademark infringers. That is why, for instance, the search engines police trademark infringement in their advertising programs (although "Public Citizen" has the nasty habit of arguing, without success, that such use is not infringement when Google gets sued). 

Finally, there is a specific exemption for criminal misconduct. The difficulty with this concept is not in the application. As a criminal defense attorney in the 1980s I tried a broad range of criminal matters...from drug conspiracy and prison breaks to attempted murder. Don Morris, a senior attorney with our firm, was a criminal prosecutor in New York. My guess is that most of the Public Citizen lawyers and free speechers that are dishing out advice to the masses aren't qualified or experienced enough in criminal law, and don't understand or identify criminal copyright infringement, criminal tax fraud, extortion, larceny, and a host of other criminal actions that are often the basis for civil suits. And there seems to be an inability to understand the concepts behind aiding and abetting and conspiracy, and state and federal RICO (Racketeer Influenced and Corrupt Organizations Act) actions, that can get a party sued for participating in, or encouraging, such misconduct. 

So, when business lawyers call me and tell me that they have been searching the web for an answer, it only takes a couple of minutes before they understand the proper analysis surrounding the landscape of Section 230. If the free speech extremists, many of whom rather deceptively appear online to be highly qualified and experienced lawyers, had a broader experience base and an ability to view issues objectively, netizens could rely upon their advice and try to self police and self regulate more effectively. Instead, though, it seems that the crazy opinions of the vocal few will continue to influence and encourage scofflaw misconduct online. And at Dozier Internet Law we'll continue to help clients on both sides of the issue navigate through this increasingly complex and controversial arena. 

Ultimately, how will this all play out? And are netizens really taking this jibberish from the left wingers seriously? At what point will those placing their entire financial well-being on the off-base, biased, foolish, and often childish advice of these lawyer-commentators figure this out? They create controversy because it brings traffic, and traffic brings money. Are you comfortable with these left wingers leading you down the primrose path...putting at risk your reputation and the financial well-being of your family? Hanging you out to dry, because your case will garner them attention and money? 

There isn't an objective liability assessment or risk analysis bone in these free speech extremists' bodies...because they aren't in the business of protecting you. They aren't your lawyers, they owe you no duty of care.

You won't hear them say... "[E]very situation is different, the analyses involved are fact sensitive, this is an evolving and complex area of law with contradictory legal decisions, there have been significant successes on both sides of your issue, and we will engage in your issue in a quality way and give you an objective opinion as to where you stand considering potential liabilities and risks so you can make a fully informed decision."

But for the purposes of full disclosure, this is what they should be saying to you:

"I was a _____ lawyer until a couple of years ago when we lost that battle and we couldn't raise funds, so I decided to get into the law of the Internet. I have never tried a jury case in my life, am anti-business, irrationally obsessed with expanding all notions of free speech, biased and prejudiced in my advice and guidance, I never consider both sides or invest the time to really understand the facts of a situation, and if you doubt the value of my advice I have a ring of similarly experienced and similarly minded online blogger friends who will tell you that I am correct on everything I say, do and believe. PS: Send money."

Dozier Internet Law on Virginia Supreme Court Anti-Spam Decision

The breaking news at the Dozier Internet Law offices this morning was our home state's Supreme Court Decision to overturn on constitutional grounds the conviction of Jeremy Jaynes and his NINE YEAR consecutive (not concurrent) sentence. I have to admit that the nine years, even coupled with alleged fraud, is a bit much. In fact, I remember a chief prosecutor in San Diego being astonished and telling me they often plead out murder cases to nine years. It just didn't seem fair.

And, the Supreme Court, in Justice Steve Agee's authored opinion, got it right. The statute is overly broad and restricts anonymous speech. It is poorly drafted. Not that unusual a thing when dealing with the law of the web.

The legal players are an interesting bunch. I have discussed this case over the years with most of the key lawyers involved in the trial, from the defense lawyers to the Attorney General prosecutor and the AOL lawyer who sat in the courtroom in support of the prosecution. And I first supported Justice Steve Agee when he was a member of the Virginia General Assembly and running for the Attorney General nomination years ago. He retired from the Supreme Court on June 30, 2008 as the decision notes. It doesn't point out, of course, that he did so and then assumed his position on the Fourth Circuit Court of Appeals. He is a conservative, pro-business Republican and this decision bodes well for his future. This is not a conservative, pro-business decision. He has authored an opinion that will be viewed, and rightfully so, by free speech advocates as a major victory. Good for him. It was the right thing to do, makes sense, and suggests that he is able to shed his political labels, affiliations, and personal beliefs and view a situation objectively. The 9th Circuit might take a lead from Judge Agee.

Now, from the political standpoint, the Virginia Attorney General, Bob McDonnell, pledges to appeal this anti-spam decision all the way to the Supreme Court. He is running for Governer as a conservative Republican in 2009. Bob and I have spent a fair amount of time together over the years, and we go back to his first term in the House of Delegates almost twenty years ago, and he is not only a very conservative, tough-on-crime and pro-business legislator, but a skilled lawyer also. He's not going to need a Supreme Court decision to address the constitutional deficiencies in this legislation. And here is why...

The Virginia General Assembly begins its annual two month session in January. It is over by early March. The Governor's Veto session follows shortly thereafter, and typically new laws are effective July 1 of that year. Governor Kaine (a pro-individual rights Democrat), Bob McDonnell, and key legislators should work this out so a new law will pass that will address the real problem of commercial email and survive a constitutional attack. In fact, all you have to do is read the opinion and briefs filed in the case to get a very clear roadmap on how to do this. 

Before establishing Dozier Internet Law , I was a lobbyist at our Virginia General Assembly. I can tell you that in the early days of the web many of the legislators thought of AOL as "the Internet". AOL was involved in drafting, lobbying and passing this law and many others. The Supreme Court's decision is a big setback for AOL, and is really a wake up call to legislators that there is a balancing act involved when you legislate or regulate the web and the business of the web. We see it all around. My advice is for legislators to slow down, take a deep breath, and make really well considered decisions on passing laws impacting e-commerce. We see it on a lot of fronts today...local, state, and national legislators and governing authorities interjecting themselves into subjects they really do not understand. 

So, for my friend Bob McDonnell...we understand that your job is to fight to uphold the laws of Virginia. But I suggest you solve this problem as a problem solver. Go back to the General Assembly, submit a new law with your crime package, and let the General Assembly pass it. Don't get bogged down in debates in January and February as to whether the law needs to be changed since the Supreme Court of the United States has not spoken. 

The likelihood of success in appealing and overturning Judge Agee's opinion is very low, and as much as the public dislikes spammers, nine years in prison was grossly unfair in the first place. Sure, the sentence was set by a jury. But the jury was in AOL's backyard. Don't take a jury sentence of nine years as an indication of how the public realy feels. This is not a mandate to fight on to the US Supreme Court. But there is a mandate to get it right. Go fix the law now so that you can show a balanced perspective. Bob, you know Steve Agee. You guys share a lot in common. Read the decision. See how he got there. You should get there too. And, knowing you, you are probably already there! 

Dozier Internet Law: Legal Opinions and Outside General Counsel

Five times. In the past months Dozier Internet Law has seen five instances in which lawyers, rendering advice and guidance, have gotten themselves and their clients in hot water. One lawyer was indicted with his client. One lawyer was sued as a conspirator with his client. Three others gave advice to clients that ended up getting their clients either indicted or raided by the Feds. What's going on here?

Lawyers have been giving advice for a long time. Are they just getting it wrong? Clearly yes. But no one is perfect, and really good lawyers are sometimes wrong. That's why we have malpractice insurance. But is the law of the web, not really recognized as a specialty, creating more problems due to its complexity?

I think the problem relates to the scope of this area of law. Intellectual property attorneys were the first to carve out expertise in "Internet law". But it is hard to imagine a typical IP attorney giving quality guidance and advice to a client about electronic mail, the legality of online drug stores, or liability for defamation in UGC situations. If corporate/business lawyers get involved, it's hard to understand how they can give high quality guidance about online copyright and trademark law. Part of the challenge continues to be the evolving nature of the law of the web, the application of the reasoning of factually different court decisions, the contradictory and confusing court decisions being handed down, the difficulty understanding online business and technologies, and the apparent willingness of some lawyers to "shoot from the hip".

Let's consider the landscape today. A client wants to know if a website is "legal", and if not what can be changed to make it so. The prudent lawyer will make complete copies of the site, conduct diligence by interviewing the client, place in the file the supporting legal authority, and provide an opinion in writing. The well documented file now contains a record of the opinion and analysis, and coupled with the written opinion letter provides a strong record. Oral opinions are very risky because the lawyer has often included assumptions that are all too often overlooked or forgotten by the client. Clients who simply want a lawyer to validate their business conduct will search out a lawyer who is inexpensive and not necessarily knowledgeable. Their hope and expectation is that doing what a lawyer tells you is legal cannot cause problems. Of course, nothing could be further from the truth. You may have a claim against your lawyer, but the prosecutor, or the FTC, or the Department of Justice, or State Attorney General, or business competitor don't care what your lawyer told you.

Does this mean that a client should never be able to call up his lawyer and get over-the-phone guidance? Of course not. Knowing when a question calls for a simple answer, though, requires strong expertise, knowledge and judgment, and really strong communication skills on both sides. A written opinion is expensive and time consuming, and sometimes unnecessary and often impractical for the day to day guidance clients desire and deserve. But given the "grayness" of many online legal issues, even an oral opinion can have so many exceptions that it of necessity requires a formalized written communication from the lawyer confirming the guidance.

So, what are "opinion letters"? They are the legal conclusions of an attorney given a set of facts and the application of the law to those facts. Factual scenarios vary, of course, and small changes in the facts can make a big difference in the opinion. The law varies...from jurisidiction to jurisdiction. The great opinion letters set out the factual assumptions, identify the laws that may apply, explain the decisions and the extension of those decisions to the facts at hand, and provide possibilities and probabilities to the client. They are designed so that a client can understand the risks associated with certain conduct and make well informed business decisions. The smart client will weigh the risks with the expectations of reward. The risks include the possibility of having to answer for alleged misconduct coupled with the size of that risk. At Dozier Internet Law we are comfortable with offering our opinion in fairly concrete terms, often explaining the possibility of the risk arising as a percentage from each potential claimant, and then explaining the range of financial exposure, the parties who could be exposed, and the average settlements if standards have evolved. There are "rules of thumb" that are applied to claims, although most lawyers are not aware of the rules.

So, it's not as simple as many think. The kinds of questions clients need answered are the questions that will provide them with the maximum amount of information so an informed, and smart, BUSINESS  DECISION can be made...What are the chances the specific party that is on the receiving end of the conduct will litigate? What is their history? Can I be sued personally? Is this criminal? Do people go to prison for this? How much will it cost to settle a claim if one is asserted? Can this conduct adversely affect my business in another way like being "sandboxed" by Google? What is the worst case scenario? Those are some of the questions a good online businessman will ask. From that information, good decisions can be made by the client. Obviously, most online businesses are willing to assume greater risk if the reward is signficant. But, that is a BUSINESS DECISION, and the lawyer offers but one side of the equation.

Dozier Internet Law is often asked to work behind lawyers or offer our second opinion on an issue. So, I see a lot of opinion letters. Clients should stay away from lawyers who load up every opinion letter with so many disclaimers that the letter carries no risk to the lawyer. That is unfortunately a common practice, but there is nothing more reliable than a qualified lawyer giving an unequivocal opinion. And clients should also avoid the lawyer who seems to opine that everything you want to do is illegal. That is the easiest opinion for a lawyer to write since there is very little liability to the firm.

So, am I saying you should avoid lawyers who "rubber stamp" approval of your conduct? Or the attorney who regularly tells you that everything you want to do is illegal? Or the law firm that includes so many disclaimers in its opinion letters that they are inherently unreliable? Well, yes.

And the solution is not earth shattering at all. Get an expert in online law, establish an "outside general counsel" relationship, build a level of trust, and work jointly to nurture the relationship. These are the types of clients lawyers want. And then reach a level of comfort with each other and get on with focusing your energies on growing your business in an informed way. Your Internet lawyer can be one of the most valuable members of your team. Ask yourself if your lawyer is someone you would want to serve on your Board of Directors, or work with as a key executive. If so, that tells you that you feel your lawyer could do a good job of balancing online business considerations with professional guidance. And then...never let him do that! After all, business decisions are for business people. What you need is great legal advice giving due deference to the realities of doing business online.

Dozier Internet Law: Beware Online "Lawyer Advice"

I recently saw a comment from a lawyer at a public interest group giving advice and guidance on a hotly disputed online legal issue to the citizens of the web. The problem, of course, is that unlike a law firm like Dozier Internet Law these groups (Public Citizen, Electronic Frontier Foundation, ACLU and many legal professors) owe no one at all any duty of care. There is no attorney/client relationship, and their advice is more often their wishful thinking of how they want the law to be, and not guidance an online business would want to rely upon. Let's consider this in detail.

These commentators will state an opinion which is often seriously jaded by their own personal prejudices or interests, but they don't disclose that fact. They will try to influence public opinion and other lawyers by claiming certain conduct is "legal". For instance, an attorney at Public Citizen claimed that calling a business a "scam" was not defamation. The lawyer found one case in the US that found the use, in that particular instance, was not defamatory, but failed to disclose to his tens of thousands of readers that most courts disagree and many have even concluded it is the most egregrious form of defamation. No surprise this comment came from a free speech lawyer reliant upon contributions from the citizens of the web to keep his job. But the reality is that things are rarely "open and shut". This type of "lawyer advice" is really an argument being put forth as to why the law should be as that lawyer would prefer. It is inherently biased-but the reader would have no idea of this, and will often rely upon the lawyer's advice, sometimes with devastating results.

Think about it...the lawyer has no attorney/client relationship with the reader, owes no duty of care, is not legally obligated to be forthright, consider both sides of an issue, or even look out for the best interests of the citizens of the web. So, these types can shoot from the hip, act like something that is very unclear is crystal clear, and be consistently wrong with no legal exposure.

On the other hand, when you hire a lawyer, an attorney/client relationship is formed. The attorney owes you a duty to use reasonable care and has a malpractice claim to deal with if he is wrong. So your attorney will give you both sides of the issue, explain to you the costs associated with "winning" a lawsuit, the likelihood of prevailing on the merits of a claim and the likelihood of you getting sued for the conduct. You can then make an informed decision.

I recently saw a public interest lawyer telling its many readers and followers that it was okay to buy a company's domain name and use it as a "gripe site". That is a grotesque mistatement of the law. In the US, if you use the site in any way for a commercial purpose, like links to one of your sites that is commercial, or with ads on the site, or another direct or even indirect commercial purpose to gain some type of advantageous financial position, you are likely violating the Anti-Cybersquatting Act. And most of the gripe sites on the web today also contain defamatory statements. It will cost you huge sums to defend a lawsuit even if you win in the end. Your exposure is up to $100,000 per domain name plus lawyer fees that could exceed that sum, and even higher exposure for defamation. If you cannot afford to hire a firm and typically pay at least $25,000 to start the defense and $5,000 to $20,000 per month to continue defending the case, you will go into default, and another $12 Million Judgment could be on the way. Once a judgment is entered, you will be unable to obtain credit, bankruptcy laws make it extremely difficult to wipe this judgment out, and you can have your house seized and sold, your wages garnished, your bank accounts cleaned out, your auto seized, and on and on. That assumes you have a winning case and you cannot afford to defend. If you have a loser, it will cost you well over $100,000 to try the case, at the end of which you will have a financial judgment against you that will likely cripple you economically for a long, long time.

At Dozier Internet Law we work both sides of these types of issues. And a quality and complete analysis of both the merits of a claim and the possibilities and probabilities of litigation is essential. Take the advice of the so-called "lawyer experts" online who seem to absolutely know the law before the Courts have decided? Ask yourself first if you feel lucky...very lucky. Lucky enough to risk your financial future and the financial future of your family. Here's a list of things you can look for to tell you whether you are reading a reliable legal source of information:

1) The lawyer works for a public interest group (Public Citizen, Electronic Frontier Foundation, ACLU etc.): Such advice is usually biased and represents what the author would like for the law to be.

2) The lawyer is outside his field of expertise: Divorce and Personal Injury lawyers don't give good intellectual property or internet law advice, and are just trying to get traffic to their blogs to improve the blogs' positions in the search engines.

3) The lawyer is a Professor: These types often tried to practice law, but found that their colleagues and the judges didn't agree with them, so they decided to go teach law to the gullible law students. Most college and law professors have extremely liberal perspectives.

4) Lawyer blogs: Notice the disclaimer on the law firm sites. It is there for a reason. You should not rely upon the guidance you find online, whether or not it looks like the lawyer knows what he is talking about. Every situation is different. Give him a call.

5) IAMAL: "I am not a lawyer". Don't even read it.

Dozier Internet Law was asked to get involved in three legal issues in the past week or so because lawyers were practicing outside their area of expertise and their advice and work has caused some rather signficant, six figure problems (and potential indictment). So, even with an attorney/client relationship and a duty to use reasonable care, and the risk of a malpractice claim, good lawyers get it wrong too. Does this tell you how complex and difficult this area of law is? And how a lawyer with no obligation owed to clients like these attorney bloggers, professors and free speech lawyers can espouse all kinds of doctrine as fact?

Find a good lawyer who has a focus on the law of the web or the specific subject matter with which you are dealing. And if you are thinking that it is "better to be lucky than good", I am reminded of the golfer's response to a heckler claiming his shot in the hole was pure luck:

"Funny thing", the golfer retorted, "I come to the course every day and really work hard, try to do things right, get the best guidance from the best teachers, work until my hands are a bloody mess, and I am very thorough in my preparation prior to a tournament round. So it's a funny thing...the harder I work, the luckier I get!!!"

Dozier Internet Law Impersonators Continue

Dozier Internet Law continues to deal with impersonators. The latest incident comes from a heads up in the legal department at Apple Computer. Seems someone used our "letterhead" to try and pry some trade secrets and source code from them. We actually think we have found the culprit this time because he enclosed a return address envelope to assist Apple's attorneys in shipping the code to Dozier Internet Law!

This time, the Virginia Department of Corrections has opened up an investigation. Seems the perpetrator resides in a Virginia prison. Once again, impersonators are everywhere...and be wary and call us when you have any suspicion about something you have received from us. Now, if we can find out who keeps posting comments on blogs purporting to be from Dozier Internet Law, we'll be making some headway.

This week we are getting calls from people upset that a children's movie they purchased online did not download. Apparently our firm name and contact information was used on the site to establish credibility in order to perpetrate this scam. Welcome to the unseemly world of the web. And that is why we prohibit use of "Dozier Internet Law" without our express permission...and yes, we know that there are legitimate reasons to use our name online. We are trying to create legal bases, however, to go after these scofflaws when they try to rip off consumers or businesses.

We have also found a website that is using our firm name, and it turns out this guy received a demand letter from us for allegedly publishing defamatory statements. This site is more of a money raising mechanism than anything else. It contains all kinds of solicitations for its visitors to contribute to a "not for profit" business the alleged perpetrator purports to own, and he has optimized his site with our law firm name to draw traffic. Reportedly, this guy is doing the same thing targeting Fortune 500-type business. He seems to be a smart guy, though, and is not so obvious as the scammer or prisoner in his little commercial endeavor.

Dozier Internet Law: Beware of Online Advice From Professors

Dozier Internet Law represents businesses in online litigation matters. We are dealing with issues in real, live disputes everyday and debating with opposing attorneys the nuances of the laws, and briefing and arguing issues in the Courts around the country. There is a hotly debated issue surrounding Communications Decency Act liability, and our long standing interpretation is pretty much being confirmed by the courts as decisions come down that editing content can put your immunity for third party content at risk.

Professor Eric Goldman, who claims to be a Section 230 scholar, continues to grossly mistate the law as it relates to immunity, claiming that "editing doesn't matter" in the analysis, even going so far as to post a rebuttal to my interview with wired.com on the Twitter situation. I am not sure why the Eric Goldman types, almost universally liberal, free speech expansionists feigning expertise in these types of issues as "scholars", cannot grasp the concepts involved in CDA immunity analysis, do not understand the roomates.com case, and feel a need to attack those who dare disagree with them. Perhaps it is the inability to see both sides of an argument...it is easy to believe yourself when you are teaching law students and your interpretations are being blindly accepted. Dozier Internet Law litigates these issues, and our positions are vigorously vetted by the opposition and judges in the process.

Beware of the online advice, comments, and positions of the professorial types. They are disconnected from the reality of litigation and business, and surrounded by other liberal minded "scholars" and students who slap them on the back and agree with often ludicrous and extreme contentions. I would bet you that if your business followed the advice of these professor types, you would be out of business by now, having been brought to your knees by expensive litigation.

Eric Goldman reminds me of the saying among lawyers about law school professors: If you cannot practice law, you can always try to teach it.

Dozier Internet Law: Top Ten Tips To Manage New York Sales Tax

Linda Buquet of 5staraffiliateprograms.com gave me the latest heads up on the business side of this issue and has been providing Excellent Comprehensive Coverage on the New York Sales Tax Issue. Thanks, Linda.

Dozier Internet Law has been dealing with the new tax law that takes effect June 1 in New York. It is obviously a very complicated situation. I have some thoughts at a high level in terms of strategy and tactics in managing this risk pro-actively. I have worked as a lobbyist on three tax bills, two at the state level and one at the federal level, and encouraged the US Senate in testimony in 1998 to use private technology applications. So, I have assisted with the drafting of (and drafted) tax related legislation going back into the 1980s and used to represent the Commonwealth of Virginia and over a dozen local governments in governmental and municipal tax collection litigation. 

First, you should not rely upon the possibility that this law will be declared unconstitutional. Amazon's judge may decide the statute is unconstitutional as applied to Amazon and those very similarly situated, but find that the statute is otherwise constitutional and enforceable. Dozier Internet Law may or may not be filing a lawsuit before the June 1 date, but there is no guarantee there will be an injunction ordered prohibiting its enforcement before then. So, while fighting this out in the courts is inevitable, obviously you need to make some decisions. Here is some guidance:

1) Don't sit by hoping that the Amazon case will lead to a quick injunction that will save the day. It might, and it might not. Whatever the decision, it is likely to be appealed, and if two or three years from now the statute is upheld by a final appellate court, your business will likely be on the hook! Don't be fooled by the fact that the Amazon case was filed in the "Supreme Court" in New York. That is a trial court...steps removed from the ultimate appellate court that will likely have to deal with any decision. The odds of settlement in such a high stakes, politically impactive dispute are usually low.

2) Don't just jump to the conclusion that you need to cut off all of your affiliates in New York by June 1. This is a business decision and you need to weigh risk against rewards. This net risk assessment needs to take into consideration a legal analysis of liability.

3) Know your exposure. The fact that your company may have tax liability does not mean that you have any risk at all! Consider adding a specific indemnification agreement into your affiliate agreements and making some credit worthiness decisions. And don't limit it to your New York affiliates...you really don't know where they are, after all! Clarification: Let me explain this in more detail. If you, as a merchant, decide to only permit non-NY affiliates, you will be relying of necessity on certain representations, particularly geographic location. If these representations are incorrect, and liability attaches because of the misrepresentations, then you should have contractual terms requiring an affiliate to reimburse you for the tax liability, and when dealing with either big affiliates or the "grey area" situations you may be well advised to make sure that the affiliate marketer is in the financial position to meet its obligations under such a contract term.

4) Consider establishing a "hold back" for affiliate commissions more than enough to cover any tax liability. This obviously becomes tricky in the sense that  you don't want to retain commissions clearly owed to non-New York affiliates, so also establish a reliable method for evaluating who is, and who is not, subject to the New York law, although this will never be foolproof. Clarification: Merchant financial models don't take into consideration an unanticipated liability like retroactive tax liability. Some may consider, instead of relying upon contract representations and warranties from an affiliate, a more definitive and lower risk approach. If it makes financial sense, and subject to negotiations, another option is to establish the escrow account. There have been comments about the tax liability not being the affiliate marketer's responsibility. Of course, there may be a shifting of responsibility in a contract breach situation, and most importantly if a merchant is now faced with having to take some months to implement the necessary processes and technology to be able to charge the customer sales tax, merchants have other options such as this approach to keep the affiliate program going in the interim.

5) Amend your affiliate contract to allow for the creation of the liability reserve (like a tax escrow in a mortgage) to cover your sales tax liability until you can start charging. You likely can't give an affiliate personally identifiable information, and the affiliate contract is the perfect vehicle to reach an agreement on how this will be handled. Clarification: Personally identifiable information includes state of residence, particularly if the merchant has already agreed it will not be shared by contract in its privacy policy. Consequently, merchants must be careful to craft a solution that will not disclose state of residence in the accounting process with affiliates until its privacy policy can be amended.

6) Amend your privacy policies to allow for certain personally identifiable information (New York addresses) to be communicated to your affiliates. This may, or may not, be applied retroactively, and if not then you will need to segregate data. Clarification: This addresses accounting processes. Otherwise, affiliates will be unable to have any meaningful confirmation or validation of New York state customer transactions that may have a direct financial impact on them.

7) Google got a carve out...yes, that is my guess from reviewing the latest comments from the Department of Taxation in New York. It looks to me like there is language that removes their adsense program (for the most part) from coverage. If you cannot win at the legislature, carry your battle to the executive branch! The tax guidance interpreting the law has very likely come under the influence of the influential. Figure out a way to get your business treated well behind the scenes of all of this. It looks to me like Google did.

8) Begin to organize and be willing to finance litigation challenging the constitutionality of the law. Understand that if New York is successful, other states will follow. There has never been a "tax holiday" on Internet purchases. Consumers have to report their purchases and pay taxes. The issue here is the requirement for the merchant to charge and remit. If the industry is to prevail, it must organize and bring overwhelming force down on the New York situation.

9) Establish a special interest group. I was a founder and the National Legislative Chairman for a major national bar association in the 1990s. It can be done. Our impetus was also threatening legislation, but it now has grown into a dynamic and powerful legislative, educational and business association. The many, many small and mid-size affiliate marketers and related business interests need to come together to be heard early on in the process (unless you have leverage and resources like Google and can deal with things on your own!).

10) My last piece of advice is probably the most critical. We have entered a landscape littered with mines and minefields. Every business affected will likely have a lot in common, and alot not in common, with each other. You should deal with this situation as a unique problem to your organization first and foremost. There are many tactics available to consider. One is litigation, one is accommodation and negotiation with the tax department attorneys and Attorney General to try and get a carve out for your business, one is termination of business relationships, one is going the political influence route, one is shifting the burden and liability to affiliates, one is turning to Congress for pre-emptive relief, and...well, I could go on and on. Just work through this situation in a quality way with the right team.

Oh, and for affiliates out there in New York...just about everything I have said also applies to you. The industry realizes that you are losing your businesses because of this law. The reality, of course, is that affiliate marketers and the like from all across the country (except New York!) will now target New York consumers, and New York will lose an entire segment of small businesses throughout the state and control over compliance with New York laws. I expect that the next state to try this will also ignore the law of unintended consequences, and the same thing will happen...until there are only a couple of "tax haven" states where all of the affiliate marketers are located!

So, the final message is for the State of New York: If the momentum continues, New York affiliate marketers will be shut down entirely. You should have anticipated this consequence. No, you will not increase your tax base significantly. But you have added to your unemployment rates. We need to work together to save the many New York businesses going under.

Additional Comment May 24, 2008: We represent and have represented affiliate marketers, merchants, ad networks, search engines, and just about every other category of company or business involved in affiliate marketing, it seems. Affiliate marketers have no apparent immediate solution to this situation except to hope that merchants don't cut them off if they have a New York presence or merchants don't suspend their affiliate programs and only allow "blue chips" with strong balance sheets to continue. My suggestions are that the merchants don't jump to the conclusion that they should immediately cut off New York affiliates, and that there are many options available to merchants other than the "death penalty" for its entire affiliate program due to uncertainty about geographic location and presence. This is not a blog entry that is pro-merchant, pro-affiliate, pro-ad network, or pro-ad agency. And it is not anti-merchant, anti-affiliate, anti-network, or anti-ad agency...my comments are my personal views on the overall situation without regard to the various interest groups involved...but I must confess that all of my comments are "pro-smart decisions" and "anti-jumping the gun"!

By the way, I'm not suggesting the hold-back would be the exact amount of tax liability. Tax rates vary by jurisdiction and product sold. Any escrow of funds would involve a sum more or less and based upon a formula the merchant decides to implement that it believes is in its best interests.

I am not suggesting this approach in a vacuum. Everything is negotiable. Clearly a hold back won't work for some affiliates and some merchant programs. I expect you will begin seeing both a hold back requirement or creditworthiness reviews by some merchants, or a combination of the two, or a total exclusion of NY "presence" affiliates. Of course, those working through ad networks have unique challenges and merchants will have to revisit that relationship in light of the difficulties in tracking and reporting NY sales from NY affiliates, and the solutions will likely involve a variety of these actions. My suggestions are valid business alternatives to merely shutting down either NY affiliates or affiliate programs, restricting the tools affiliates can use, or other onerous steps.

Given the fact that merchants really do not know whether affiliates have the requisite New York presence to be subjected to the law (because that would be based upon the information provided by an affiliate), expect to see alot of activity next week. Determining which affiliates are "New York" affiliates is a very important point, and that is a basis for my comments.

Instead of finding reasons why approaches will not work, affiliates should be organizing their thoughts and focusing on solutions, and then going proactively to merchants with proposals that will address this new liability. Get to the table as soon as possible with constructive suggestions.Otherwise, affiliate programs are at risk. My view is that there are those who think they can, and there are those who think they can't. They are both right!

Dozier Internet Law: The Web is Not Anonymous

Dozier Internet Law chases a lot of scofflaws. Sometimes the subject matter is copyright infringement, sometimes trademark infringement, often hacking and defamation. A reporter interviewing me last week was surprised to learn that individuals posting information online were not entitled to absolute anonymity and was surprised that you could subpoena information to identify the source of the publication of defamatory information in the airline industry. That got me to thinking a little about the knowledge base of most netizens.

Yes, you can be identified. For every instance in which Public Citizen wins a case preventing the disclosure of the identity, I suspect they turn down dozens of cases they know they can't win. There is no absolute right to privacy or anonymity online. Identities are disclosed everyday in litigation through a process called "discovery". And most people leave pretty good tracks. If the plaintiff is obviously going to lose the case, the courts won't let the plaintiff use discovery to identify a defendant. But if the case is arguably valid, there is no problem with issuing extensive and far ranging discovery to locate and identify a defendant. And it is a process used often by lawyers, but an issue not publicized by the extreme left wingers very often. That way, each "victory" they claim sounds signficant. But most, frankly, are irrelevent or at least not significant. At Dozier Internet Law we go after these anonymous types often, and with great success. Rarely does Public Citizen get involved. When they do, their involvement is an anomaly. We don't publicize all of the cases in which we are identifying, through discovery, anonymous scofflaws, but from the volume of press release type emails and blog entries flowing from Public Citizen, I can understand this reporter's misunderstanding.

Dozier Internet Law: Blogger Reputations Ruined

At Dozier Internet Law we are constantly addressing the problem of false and defamatory attacks against clients on blogs. I'll be lecturing on the issue of online defamation to Virginia lawyers this summer in a course sponsored by the Virginia Law Foundation, governed by representatives of the Virginia State Bar, the Virginia Bar Association, and seven of Virginia's law schools. One of the interesting things I plan on doing is offering an outline of a blogosphere attack, and I'll really try to get to the motivation and mentality of "attack bloggers". They are growing in numbers everyday. While the blogosphere denies the existence of the miscreants and scofflaws within their community, once in a while you actually hear one admit what we at Dozier Internet Law already know. Take a look at this posting from a popular business social networking site in response to a question about how to build a business with a blog:

"2). Pick an enemy and attack them hard. The point is to galvanize people. This WILL lead to traffic."

Controversies and outrageous claims draw attention. That means eyeballs. And that traffic leads to more business, or more revenue, for the blogger. It is not hard to see how this works, but it is unusual to get such a blatant admission from a prominent blog professional. "Attack bloggers" need to be reined in. We are having pretty good success dealing with these types without having to file lawsuits all the time, but when it comes to push, we usually will pull the trigger and sue the "attack blogger". It's not free speech to create outrageous lies and propagate them all over the web. So, if you get a communication from us, be it a letter, a copy of a lawsuit, or a telephone call, consider the consequences that are about to ensue. The great majority of you already get the picture and agree to our demands. Smart move.

And, for many of those intellectuals who relish this new toy called the web, and you are in high school or college, or have a life and a career and an employer, consider how it is going to look when, for the rest of your life, a lawsuit describing your misconduct in vivid and creative terms shows up on the first page of Google results for your name. Do you honestly think that a business is going to take a chance on hiring someone who has exhibited such poor judgment and inappropriate conduct? No. The business is going to move you to the bottom of the stack of applicants.

So, when you get a communication from us, understand the consequences. These lawsuits will show up on the front page of Google results under your name. SEO is not the sole province of bloggers, by the way. While your lawyers, particularly those involved with the public interest groups, use your case to gain attention and raise contributions, your reputation is being ruined forever. Your reputation as an employee, your reputation as a college applicant, your reputation as a job applicant, your reputation as a private person, your reputation as a husband, and your reputation as a father or mother. Maybe you won't be confronted with it, but the impact will likely be profound, from prospective employers passing your resume by to parents avoiding you at school functions. It will happen. I tell clients that the problem blogger isn't always found in the Dozier Internet Law Blogger Persona List because we don't consider the immature or unsophisticated individual as a "scofflaw" blogger.

But, for those with something to lose today or something to lose in the future...beware that the "poetic license" you thought you had will likely turn out to be a trap door into reputation hell.

Dozier Internet Law: Law of PPC Advertising

I'll be speaking this week at the Click Quality Counsel on the law of PPC advertising. We'll post the Powerpoint on the Dozier Internet Law site shortly. At a high level, I go through the primary legal issues (trademark, domain name and false advertising) involved with a PPC ad. The four issues involve the use of a competitor's trademark in a search term, ad title, ad description, and url presented in the ad. The lesson to take away is that this is an unsettled area of law for the most part, and each situation turns on the unique facts involved and the way the ad is viewed in its totality to the consumer. There were at least four lawsuits filed in the past 45 days between businesses, but most litigants are avoiding naming Google as a "contributory infringement" defendant. When you go after Google, expect not only to have to incur huge legal expenses but also expect that their good lawyer friends over at Public Citizen will once again come in and file briefs supporting Google's position that there is no contributory trademark infringement liability, a dubious position in my opinion. As an aside, it looks to me like Public Citizen and Google's in-house IP counsel are trading legal support back and forth...kind of a "you scratch our back and we will scratch yours". It will be interesting to see how long this honeymoon of mutual admiration and support lasts since there are clearly some issues they should clash on relating to behavioral marketing and data.   

Dozier Internet Law represents businesses involved in PPC disputes and we assist businesses in understanding the risks so good business decisions can be made. A quality risk assessment involves understanding a number of factors that go beyond the law in a strict sense. I think of it as a pragmatist's perspective. I think the lesson learned, and you will see this in the slideshow going up on the Dozier Internet Law site, is to be very careful in the PPC world. Sure, the odds are low you will get sued. But when you do...you are paying expensive IP trial lawyers, and using expensive expert witnesses, in an expensive Federal court, dealing with an evolving, complex area of law. That's a recipe for disaster for the small business-a recipe that almost always carries with it individual or personal liability for the owners of the business even if you have a corporation. Ouch.

Dozier Internet Law: How Dozier Internet Law Shut Down The Blog Professor and Librarian

Once upon a time there was a professor at a prominent Eastern university who taught blogging as a course for undergraduates. Dozier Internet Law was hired to get a section of his blog, hosted on a University server, taken down since it was focused on attacking our business client. So we did not go directly to him. We went directly to the President of the University. And the President of the University went to the General Counsel of the University. Not only did the blog come down, but Mr. Blog Professor agreed to never mention our client's name again...and all without a lawsuit.

Once upon a time there was a librarian. She mentioned in a post on a site, and then in her own blog, that our business client was an alleged "scam operation". Dozier Internet Law approached her, explained the realities of life to her, she ran off and got the assistance of one of the prominent free speech groups, and they promptly caved in to our demands in full. No lawsuit was filed. She is to never mention our client's business name again, and all of her posts and blogs were pulled off the web forever.

Professors and Librarians. The Bastions of Free Speech. In both instances they had legal counsel. In neither instance was a lawsuit filed. In both instances all of the posts critical of our client were removed from the web forever. Both of the bloggers agreed to never speak, or allow others to speak on their blogs, about our clients again. That's results.

So every time a "learned professor" spouts off about free speech, understand that he or she is in a survival mode. Because while the general public may not know about the many matters we handle against the professorial types, the word has likely spread like wildfire through the halls of academia that if they think they can hide behind their institutions or some free speech lawyers like Public Citizen, they are wrong.

If you receive a letter from us you are usually being invited to resolve a matter through appropriate and reasonable discussion and negotiation. If the issue becomes public, you have a big problem. If the matter leads to litigation, you have a bigger problem. If you are lucky enough to convince one of the public interest groups to take up your case, you really have a big problem. Ask these public interest groups how much money they have in a fund to pay for a judgment rendered against you. The answer is Zilch. They are taking your case to get publicity, incite the passions and prejudices of their constituency and raise more money...and all of the risk of the outcome of the litigation is on your shoulders. When a financial judgment comes down, you have to pay it. And, when someone "Googles" your name it is likely they will read all about your misconduct and the lawsuit and the judgment on the first page of results for the rest of your career, and possibly your life. That's why disputes get resolved privately and confidentially...and why the public interest groups make private disputes highly visible and public. Lawyers owe a duty to always try to act in the best interests of their client. Do public interest lawyers like Public Citizen act in your best interests when faced with a dispute? Or do they act in their own self interests, turning private matters into highly publicized public issues to gain traction in fundraising so they can continue to have a job and pay their bills?

Dozier Internet Law: Dozier Internet Law Legislation Update

Dozier Internet Law is following a number of legislative and regulatory initiatives. The cause of so much proposed legislation? Failure of the industry to self regulate.

The FTC recently promulgated the “Behavioral Advertising Privacy Principles”, government’s effort to gain some reasonable control over personally identifiable data being used for advertising purposes. At the same time privacy advocates were pushing for the establishment of a “Do Not Track Registry” for online behavior tracking. Congress and state legislatures didn’t seem impressed by the new regulatory schemes.

The state of Washington passed the first “anti-spyware” legislation several years ago, and now Congress is today considering a similar law. You’d be surprised by the broad nature of the definition of “spyware” and since Dozier Internet Law litigated what appears to be the first case involving violation of a state "anti-spyware" law we have a pretty thorough understanding of the broad interpretation being embraced. There are proposed laws working their way through legislatures and Congress requiring data breach notifications to those affected by data loss, strengthening “security freeze statutes”, restricting Social Security Number transfer and publication, restricting the ability to maintain data, and requiring those responsible for data theft to reimburse financial institutions. Also at the state level there are laws being considered that would require opt-in for data sharing and the establishment of “do not sell lists” for personally identifiable data.

What does today’s environment tell us? It tells us that we, as an industry, missed the boat. We missed the opportunity to self regulate: to establish privacy policy standards with teeth, to establish data security standards and meaningfully enforce them, to buy and sell data and leads in a responsible way and treat the information as if it was our own, to be forthright about what data we are tracking…and keeping…and storing…and sharing…and packaging…and using…and selling.

I just finished an article on this subject for Practical E-Commerce Magazine. Lack of control, good judgment and discretion has its price. Great industries self police to avoid governmental intervention. Visit Dozier Internet Law and you can also review the lawsuits that are being filed in Federal courts at the Dozier Internet Law Federal Court Report.

Dozier Internet Law: Court Attacks Immunity

"The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune," the 9th Circuit Court held in the Roommates.com case.

The erosion of the immunity provisions for interactive service providers picks up some serious momentum as the Courts now begin picking apart the broad immunity interpretation taken by free speech advocates. When the immunity for the posting by third parties was passed as part of revisions to the Communications Decency Act you could see problems on the horizon. Bloggers, website owners, and investors, all buttressed by the commentaries from liberal, free speech advocates who even today control much of the dialog online, adopted an extremely broad interpretation of the applicability of this law. At Dozier Internet Law, we view the decision as fully supported by the law, and it is noteworthy that this Court is widely viewed as the most liberal and free speech oriented Circuit Court in the country. Immunity, at least in the 9th Circuit, is no longer available to those sites "encouraging" the posting of illegal content, and this now moves squarely into question a broad range of sites making a living on encouraging the posting of defamatory information. Many of these types of sites are represented by various "public interest" groups like Public Citizen, and Dozier Internet Law's position in many of the ongoing disputes relating to immunity is once again turning out to be correct. Expect to see the ACLU, EFF and Public Citizen, their lawyers and all of their professor supporters with blogs start attacking this decision or the interpretation of it by pro-business forces.

Of course, the Court does not decide matters in a vacuum. The reality is that the immunity provisions were being abused, in a very public way, likely resulting from the very public encouragement, support, and "legal advice" coming from the liberal left wingers. Dozier Internet Law has been engaged in an ongoing debate about abusive sites, and you can read the Dozier Internet Law letter and related comments to Public Citizen to understand more fully how the immunity law has been abused with the support of free speech lawyers.

This decision, coming on the heels of the setback in Congress for bloggers and discussed in the Dozier Internet Law Blog last week, is representative of the movement of the pendulum back to sanity. We saw this coming. I blogged on this months ago. If the free speech public interest groups could have made an objective assessment of the environment and understood the consequences of emboldening the blogosphere into more and more egregious misconduct, the Court and Congress may not be reacting to curb the lawlessness as aggressively. These groups have never been good at objectivity; but they do excel at overstatement fueled by a fanaticism towards expanding individual rights and restricting the protections available to businesses. While other industries, when faced with an obvious and growing problem with its denizens, would be exploring "self regulation" to avoid legislative and judicial activism, these "free speechers" have encouraged attacks. Dozier Internet Law Scofflaw Bloggers describes some of the scofflaws that comprise the constituency of these groups.

So, as we move forward, and the immunity doctrine continues to erode, let's see if these public interest and free speech bloggers and lawyers keep telling their "mobosphere" that it is okay to encourage illegality...and participate in, encourage and facilitate defamatory attacks. We know of at least one specific instance in which a lawyer for a major free speech group directly communicated with, and encouraged, a blogger to publish defamatory statements.

Scofflaw bloggers, free speech civil libertarians, "public interest" groups, and liberal law professors espousing with self righteous indignation any restriction on the concept that "information yearns to be free" will continue to suffer these setbacks. And one has to wonder how this could have been avoided by the thoughtful and measured treatment of the issue. Would we be seeing this movement by the courts, the executive branch in New Jersey, and Congress if the free speech interests were encouraging self policing, honesty and integrity instead of actively encouraging and, indeed, promoting the problem?

On a final note, there is no immunity law in the UK, and jurisdiction for the publication of comments here in the US may be asserted there. A six figure verdict was just entered for a "mobosphere" attack. Let's see what these free speech groups have to say about exporting their notions and concepts to the rest of the world so that their constituents are protected. A full retreat is in the offing, assuming that these revisionists to our First Amendment rights can see more storm clouds on the horizon blowing in from the UK. Huge and unlikely assumption...I'm afraid.

Dozier Internet Law Reports Congress Slams Door On Bloggers

Dozier Internet Law reported late last year that Congress was considering passing the "Free Flow of Information Act" that would have created a loophole wide enough for every scofflaw blogger to slide through. The proposed bill is a proposed "shield law" that would allow "journalists", including bloggers, to hide behind their "sources" under many circumstances. This would have opened up the opportunity for bloggers running the extortion scams to create their own postings and comments attacking businesses and then allow them to hide any evidence as to the source of the posts. I blogged about the unanticipated and unintended consequences that would ensue. The Dozier Internet Law expose' on the personas of scofflaw bloggers and our Dozier Internet Law extortion site documentation found their way to Washington, and while we have no idea what direct impact our perspective had on the debate, our friends working to "kill" the bill report that it now applies only to journalists earning "a substantial portion of the person's livelihood or for sustantial financial gain". Obviously that was much better, but then the bill was also amended to provide that it was not to be construed as applying to civil defamation, slander, or libel claims under State laws. Since these are the primary bases for legal action against the extortion racket bloggers and other bloggers with little regard for truth, let's chalk this one up, so far, as a victory for business. I think Congress, at least the House, sent a message to the blogosphere that free speech has its limits, and if you are going to run a criminal enterprise, or break the law by defaming a business, you are on your own. I guess the free speech groups were due a setback, although I don't immediately recall any victories the liberal, anti-business forces have enjoyed since the late 1990s on the legislative front. Let's hope the House version becomes law, because the Senate version is weaker in protecting businesses on this point. Anything could happen, of course, if the conflicting bills make it up to conference committee.

In other federal legislative news, there are rumblings from the Federal Trade Commission about a "do not track registry" on the heels of the "Behavioral Advertising Privacy Principles" it recently promulgated. Use of personal and behavioral tracking data for online marketing and sales is certainly going to be a hot issue. At Dozier Internet Law we expect the privacy and anonymity interests (ie. ACLU and Public Citizen) to be going heads up against some powerful online marketers and retailers. Federal spyware legislation is working its way through Congress also. Dozier Internet Law defended the first business accused of violating the first spyware law in the US several years ago, and I can tell you that the definition of what is considered "spyware" will likely come as an unwelcome surprise to many businesses if the law passes as is. There are also data breach notification and social security number disclosure bills in the House of Representatives and the US Senate.

Briefly, on the state level, there is the ongoing "at distance sales tax" issue in New York, state data breach notification bills, at least one data storage bill that creates liability for businesses for loss by their financial institutions (credit card merchants), various social security protection and disclosure bills, and a "do not sell" bill that requires an opt-in to permit an online business to sell personal information it has gathered.

I believe it was Thomas More who said that information is power. Some of the most successful online business enterprises have figured out how to take data, convert it into information, and in so doing build a lucrative business. At Dozier Internet Law we'll continue to work to make sure businesses are dealt with fairly, and the very idea of limiting the use of information in business is of course problematic. When I testified before the US Senate there was a concern about allowing private taxpayer information to move securely in an electronic manner. That testimony was ten years ago. Looks like data protection is still at the forefront of the debate, and it will probably take another ten years to iron it all out to everyone's satisfaction.

If you want to keep up with many of the latest significant lawsuits filed around the country dealing with the Internet, you may want to check out the Dozier Internet Law Federal Court Report. Then you'll have the latest news from both the legislatures and the courts...

Dozier Internet Law Impersonators

Dozier Internet Law has impersonators. And we also have fraudsters. You'd be surprised how often we get an email from someone pointing us to a site or blog/forum posting in which the claim is made that we are the attorneys for a party. A party that, by the way, we have never heard of. Some sites do this to establish credibility and show they are "connected". Others do this as an attempt to legitimize their position in whatever legal debate is raging that day. Still others steal the use of our name so they can get the benefit of our brand at no cost. Some bloggers and forum posters impersonate us with the intention of attacking our firm. One of the more brazen examples of this impersonation issue follows. I received this letter today from an affiliate marketer we met at Affiliate Summit. A copy follows...don't be fooled by this chicanery. If you receive a letter like this, it is not from Dozier Internet Law or our predecessor law firm from five years ago, Dozier and Associates.

November 2, 2007

Sender Information:

BattleTattle.com

Law offices of Dozier and Associates

P.O. Box 74993

New York, NY 10039 US

Recipient Information:

(Name and Address Redacted)

Sent via: Email

Re: Demand to Cease and Desist and Retract Libel November 2, 2007 Via Email

Dear (Names Redacted),

Our office represents SSL Certifications, and we have been asked to commence possible litigation action against you, (Names Redacted). Many of the statements about SSL Certifications posted on your web site are untrue and defamatory. We believe they were made maliciously to injure SSL Certifications and its affiliates. As such, they are defamatory per se. Under California Civil Code § 47, this letter constitutes a demand for immediate retraction of these false and libelous statements. Your web postings and conduct also constitute tortuous interference with the business and contractual relations of SSL Certifications and its affiliates. As such, they are actionable and expose you to the imposition of compensatory as well as punitive damages. Below, we have noted one of the more malicious, and libelous comments made by you and your associates.

If SSL Certification is forced to file suit to stop your wrongful conduct, it may also seek an award of its attorney fees and litigation expenses.

Here is the location of the exact posting we are referring to:

(Link Redacted)

If you do not immediately remove this posting, and cease and desist from tortuous interference and making false and malicious comments about SSL Certifications on your website, we will advise our clients to file suit against you.

Please govern your website accordingly.

Sincerely yours,

Timothy Myers

Law offices of Dozier and Associates

Of course, if this letter is actually from the party listed as the sender, and not someone else posing as the sender, then there is some rather signficant criminal exposure here. My advice to everyone is to stay away from claiming that our law firm is representing you unless that is true. And if you are impersonating our law firm, you need to stop.

This is the reason we specifically and explicity prohibit use of our name in the Dozier Internet Law Website User Agreement. For all of the liberal, free speech fanatics who don't like that provision, and apparently enjoy having the crooks of the web impersonate legitimate businesses for financial gain, I suggest you stop trying to protect the underbelly of the online world and get a life.

Dozier Internet Law Federal Court Report Goes Online

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.

Dozier Internet Law Legal Update

I am looking forward to seeing many of our Dozier Internet Law clients at the Affiliate Summit this week.

In California, an appeals Court has ruled that a subpoena cannot go forward in a case arising out of a lawsuit in Florida. The plaintiffs in the lawsuit sued the unknown individual for a number of statements. The plaintiffs attempted to subpoena documents from his Internet service provider in order to show the source of the comments, but they did so in California. The California Court found that the statements were not defamatory. Need I ask why, given California's pro-free speech inclinations, the plaintiff did not serve the ISP in Florida and let the much more conservative, and pro-business, Florida courts decide the issue? It is obvious service of process could have been obtained in Florida since the service provider operates and provides services in Florida.

The UK is threatening to start enforcing a policy of three strikes and you are out on web theft. If you are caught stealing content or streaming video/audio the ISPs are moving towards a program that cuts off your web access. It's about time. The US should follow suit, and pass a law that clamps down on stealing someone else's property by requiring action similar to the copyright takedown notice we use now for website content theft.

A Canadian court has sentenced a man to four months in jail and three years of Internet limitations for publishing comments on the web that promote hatred. When I see decisions like this, it reminds me that the US view of free speech isn't held by most of the world. This type of language would likely be protected in the US unless it was uttered as "fighting words" and that would require an imminent threat of physical harm.

As we move slowly closer to an Internet predominantly governed by others, it is going to be interesting to see how free speech rights play out. It strikes me that a bit of self regulation, instead of turning every free speech issue into a court battle, may be the wise approach for the liberal, free speech extremists. I am not sure how US free speech arguments will fly in China, or Russia, or even the UK or Europe, but my guess is that the day is fast approaching when individuals will be sued in foreign countries under the "effects test" or another theory of law that the foreign country finds adequate. I am not sure how the EFF, Public Citizen, and the ACLU will be welcomed around the globe, but they don't seem to be too worried.

The last time I checked, Public Citizen was challenging our firm to sue one of its clients in Canada because its client would not respond and a judgment would, according to Public Citizen, be useless. Of course, experienced litigators know that there are tools to collect a Canadian judgment even against a US defendant. If the defendant ever decided to travel to Canada, he could be hauled into a debtor's interrogatory hearing and required to turn over his cash and all of his property on the spot, with a few exceptions. If he failed to appear, an arrest warrant could issue, just like here in the US. And, in case Public Citizen does not understand garnishment laws, its client, generating "adsense" revenue from Google, would soon see all of that disappear since Google can be served in Canada with a post-judgment attachment for all sums due under the program. These are just two methods available to collect. Next time you hear from Public Citizen and their ultra-liberal friends that you have nothing to worry about... you had better start worrying.

By the way, as much as these free speech groups like to jump into litigation, have any of their clients ever wondered where the money is going to come from to pay the judgment when they lose? That day will come, of course, and while another $11 Million defamation judgment like we saw a couple of months ago may not be in the offing, a big judgment is inevitable. When that happens, the free speech groups will be pleased with all of the funds they have raised from contributors for legal fees, but who is going to pay the judgment or face bankruptcy? Wanna guess?

Dozier Internet Law: Copyright Rights and Free Speech

Some get it. Some don't. And some simply don't want to, or can't. I guess that is a fair assessment of the comments about our recent Press Release on the US District Court holding that copyright rights can arise in a lawyer cease and desist letter. As we reported, the Court confirmed the issuance of a subpoena aimed at identifying the poster, and found on a prima facie basis that copyright rights existed in the demand letter. Considering the fact that just months before Public Citizen had attacked our firm for asserting such ownership rights, and created a firestorm of comments attacking the very concept of a cease and desist letter being subject to copyright protection, it seemed appropriate to comment on the decision. It still does. The Press Release is accurate, but some of the blogosphere took the release, added words and associated meanings to the non-existent words, and then explained why what I had not said was incorrect. Others simply attacked the judge for erroneous logic and purported errors of law.

Okay, so here we go again. Let me explain the decision in plain terms. The Court found that a lawyer or client can have copyright protection in a Cease and Desist. First Amendment and Fair Use defenses were raised by the defendant, and despite such defenses the Court approved the subpoena. Some will argue he never considered those defenses, some will argue he did consider them and rejected them as not persuasive, and some will argue that it does not make any difference since such defenses are case specific and fact sensitive to each situation. 

The impact of this decision is that the first requirement for establishing a copyright infringement claim against a party posting a lawyer cease and desist is supported. Many free speech commentators attacked this belief previously. Of course, those commentators are some of the same ones who claimed you had to have a registered copyright to assert copyright rights, and when they learned that was wrong then they fell back to the position this US District Court has now rejected. So, they now fall even farther back to the "fair use" defense. Get any idea in which direction this is going? Not much left after that to fall back on, frankly.

Some commentators have praised this decision. Others have attacked it. Others have attacked our interpretation of it, focusing on the "fair use" argument. I really get a bit of a chuckle out of the liberal "free speech" types who have never spent a day in their life in a business setting, never attended a board meeting, never had to make payroll for employees, and cannot tell you the difference between an income statement and a balance sheet. They couldn't see things from the eyes of businesses no matter what the situation. They can come up with all kinds of arguments and purported authority for the proposition that if you receive a cease and demand letter you can post it online without risk. They tell the blogosphere that it can do something that could lead to an award against them for $150,000 in statutory damages plus much more in attorney fees; do something that could lead to financial ruin for the gullible netizen and his family for the remainder of their lives. What they do not tell you is that asserting a fair use defense is going to be fact and case sensitive; in some matters you may succeed, in some matters you may not succeed, and that the Courts are still dealing with many of these issues for the first time.

Do the free speech groups really believe in free speech? No. Just speech they agree with. Free speech is a noble concept in their minds, but their minds are clouded by a bias and prejudice against businesses. Consider the irony of FREE SPEECH GROUPS PROTECTING TACTICS USED TO SILENCE CRITICISM. That is what their "fair use" defense does. Let's walk through this for a moment.

Your business is attacked viciously online with damaging lies. If your business lawyer criticizes the blogger, and demands a retraction, you know that there is a real possibility this blogger could publish your letter and create a "mobosphere" attack on your business that would far outweigh the damage to date. Your business is inhibited from voicing your criticism because of the fear of reprisal, and the primary fuel for this reprisal is the threat of publication of your criticism. Free speech groups actually encourage their constituents to post these demand letters, providing further high profile attention to the issue and participating in the "mobosphere" attack. Why are the letters published? To discourage businesses from voicing their criticism of the blogger criticizing the company. Since when did free speech protections not apply to businesses?

And so, from free speech comes a claim of "fair use". Is it fair use to publish a lawyer demand letter, even when the recipient is free to comment on the letter and issues surrounding it, and can likely even publish insubstantial parts of it? No, it is not. The "fair use" argument is a red herring, repeated so often that those who argue its applicability actually believe it. Let's not ignore the reason for the publication. It is not to inform the public. That can be done through comment and criticism. The first intended use is for it to chill the rights of businesses to speak without fear of a mob attack. It is often published to incite an overwhelming force to attack a business in many ways, both legal and illegal, and to intimidate businesses into submission. The publication itself, in this context, is an attack on our free speech rights. Chilling effect is an understatement.

The second is even more obvious. If the business decides to move forward, the recipient uses the threat of posting it to gain an advantage in the legal dispute. The threat is not one founded upon the public's right to know. It is founded upon a belief that the threat of publication of the cease and desist letter will get the recipient a better "financial settlement", which is often a nice way of saying that "if you pay me off I will stop the attacks and remove the postings about your company, and if not, well, you'll have to suffer the consequences ". That, my friends, smells of extortion. But it happens every day. These public interest and free speech groups know it, and I suspect they greatly appreciate the generous donations coming in. How important are donations? Reportedly important enough for Public Citizen to "fire" Ralph Nader when donations dropped after his presidential bid. Many suggest it has been slipping into mediocrity and irrelevance ever since, and Public Citizen is scrambling to keep the contributions coming in.

The equities weigh in favor of not recognizing "fair use" as a defense to this copyright infringement claim. The applicability of the First Amendment isn't limited to members of Public Citizen, the ACLU, or the Electronic Frontier Foundation. The most important aspect of free speech this issue implicates is the chilling effect visited upon businesses from the threat of a mobosphere attack. The lawlessness of the web is a big enough problem without having public interest groups pushing a self serving agenda that protects the scofflaws of the web.

Coming Up Soon: We're working on a piece that lays out the organization and dynamics at play in a "mobosphere" attack. You won't be surprised, unfortunately, to find out who is providing the legal support, on many different fronts, for these attacks, and we'll get into how the payoffs are solicited, who gets paid first, and how the bounty is shared among the participants. Fair Use? You be the judge.

Dozier Internet Law: Federal Court Agrees Cease and Desist Protected By Copyright

Remarkable, really. We at Dozier Internet Law asserted copyright protection on cease and desist lawyer letters. Public Citizen, the Ralph Nader founded organization, and Citizen Media Law Project, straight from the University of California at Berkeley (yes, that Berkeley), come out on the attack, instigating their 100,000 plus members to attack our law firm over our position. We ended up getting hundreds of profane and threatening emails and telephone calls because their lawyers told the blogosphere that they could all post lawyer cease and desist letters and be comfortable that it was legal, pompously asserting that they were right and we were clearly wrong. 

Here's a mellow sample of what they had to say: "Don't be bullied by a lawyer threatening you with a copyright infringement suit for republishing the contents of a threatening letter. One way or another, this is an extremely weak legal argument..."

I have sat by patiently for the past month waiting to see a retraction and correction of this erroneous advice to their netizens. You see, for the past month, since at least December 17, they have known that the first decision in the country on the issue vindicated the Dozier Internet Law position. Check it out here.

So, it's been over a month. I don't know of any attempt to correct their bad advice, correct their blogs, or notify all of the hundreds of thousands who believed in, and relied upon, their advice that they were wrong. And this is consumer protection? If a corporation knew it had a harmful product among the public and did not inform them, these groups would be going ballistic. But I guess if the only downside is some poor blogger who believed and did what they said, and is faced with a statutory damages claim of $150,000 plus lawyer fees, then these groups will just chalk that individual's loss up to "the movement".

You can track the events and communications, and our response, right here: Dozier Internet Law Responds. As I said in my initial response to Nader's Public Citizen lawyers, and I'll repeat it here...if you can't give good advice, don't give any at all. Creating a frenzy by misleading your constituency is a shameful way to raise money for your organizations.

And here is the real irony. These organizations are founded upon an almost maniacal belief in expanding notions of free speech, so we can't successfully insist that these young, recent law graduates be reined in and controlled, managed, or censored. There are no quality controls in place. Good businesses institutionalize levels of authority, review and vetting. It leads to higher quality goods and services. These free speech organizations will never implement such oversight since it runs counter to their cultural beliefs of promoting free speech and banishing censorship.

So, they have no means of controlling quality. And no quality means of remediating their mistakes. They give bad legal advice. If you listen to them, learn to live with it. Recalls and retractions are not in their dictionary.

Dozier Internet Law PC Releases 2008 Conference Schedule

We know we have been a little slow in getting our conference list out to all of the prospective and existing clients of Dozier Internet Law. It is being posted soon on our site at www.cybertriallawyer.com.

We will be attending a lot of sessions...participating as speakers...and exhibiting at EVERY conference. We'll typically have at least two seasoned attorneys at our Exhibit at every conference. We start next week in New York City at the National Retail Federation annual conference. Sorry it has taken so long to get this finalized and the dates to all of you who have been trying to find out when you can meet us in person. We will be exhibiting at, and attending, 25 conferences this year all around the country with about an equal mix of West Coast (LA, San Fran, Silicon Valley, Vegas) and East Coast (NYC, Boston, Orlando) and quite a number in Chicago for our Midwest clients. 

• National Retail Federation
  New York, NY, January 14 - 15, 2008
• National Association of Television Program Executives
  Las Vegas, NV, January 29 - 31, 2008
• Affiliate Summit
  Las Vegas, NV, February 25 - 26, 2008
• Search Marketing Expo
  Santa Clara, CA, February 27 - 28, 2008
• Search Engine Strategies
  New York, NY, March 17 - 20, 2008
• Ad:Tech
  San Francisco, CA, April 16 - 17, 2008
• Web 2.0 Expo
  San Francisco, CA, April 22 - 25, 2008
• Interop
  Las Vegas, NV, April 29 - May 1, 2008
• Digital Hollywood
  Los Angeles, CA, May 5 - 8, 2008
• Annual Conference for Catalog and Multichannel Merchants
  Orlando, FL, May 19 - 21, 2008
• Ad:Tech
  Miami, FL, June 3 - 4, 2008
• Internet Retailer Conference and Exhibition
  Chicago, IL, June 9 - 12, 2008
• eBay Live!
  Chicago, IL, June 19 - 21, 2008
• Affiliate Summit
  Miami, FL, July 8 - 10, 2008
• HostingCon
  Chicago, IL, July 28 - 30, 2008
• Ad:Tech
  Chicago, IL, August 5 - 6, 2008
• Search Engine Strategies
  San Jose, CA, August 18 - 21, 2008
• Interop
  New York, NY, September 17 - 18, 2008
• Online Market World
  San Francisco, CA, September 30 - October 3, 2008
• Search Marketing Expo
  New York, NY, October 6 - 8, 2008
• Direct Marketing Association
  Las Vegas, NV, October 11 - 14, 2008
• Fall Von
  Boston, MA, October 27 - 30, 2008
• Digital Hollywood
  Los Angeles, CA, October 29 - November 1, 2008
• Ad:Tech
  New York, NY, November 3 - 6, 2008
• Pubcon/ Webmaster World
  Las Vegas, NV, December 4 - 7, 2008

Past Appearances PubCon/Webmaster World Las Vegas, NV, December 5 - 6, 2007 Ad:Tech New York, NY, November 5 - 6, 2007 Digital Hollywood Hollywood, CA, October 29 - November 1, 2007 ISPCON San Jose, CA, October 16 - 18, 2007 Online Market World San Francisco, CA, October 3 - 5, 2007 Search Engine Strategies San Jose, CA, August 21 - 22, 2007 HostingCon Chicago, IL, July 24 - 25, 2007

Dozier Internet Law Supports Web Business Interests

Dozier Internet Law believes that businesses have a right to legal protections on the web. The web is the technology child of Virginia, but its initial commercialization and mass appeal can be attributed to the folks in San Francisco and Northern California. Naturally, some of the liberal, anti-business philosophies of the Bay Area took hold as the guidance for establishing the rules of the web. Business interests were rarely contributing to the dialogue early on. Laws were passed, and policies established, that created and then protected "individual rights", but in an unbalanced way. Businesses were not offered a seat at the table, and one sided policies, practices, procedures and laws evolved. Immunity was legislatively granted to those that would be liable for copyright infringement, defamation, and much more. When the history of the web is written, this "time of lawlessness" shielded by disingenuous claims of legitimacy will certainly have a prominent place.

But times are changing. At Dozier Internet Law, we believe that companies should be able to protect their intellectual property, not have it stolen by websites and consumers through "free" downloads of music, software, and films. At Dozier Internet Law, we believe that business trade secrets should be protected, and that the scofflaws of the web should not be permitted to trample the reputation of a business. At Dozier Internet Law, we believe that the thieves of the web should be pursued civilly and, when appropriate, prosecuted criminally. It's as simple as that. And, fortunately, all around the world, court decisions are moving in the direction of returning commerce, albeit e-commerce, to a rational marketplace that respects the rights of businesses. A return to status quo, and away from the stranglehold of expansive liberal concepts of "public participation" and free speech, is under way. The ACLU, EFF, and Ralph Nader founded "Public Citizen" are all losing leverage, losing bargaining position, and losing their wars on business. 

In China, an appeals court recently held that linking to copyright infringing material creates liability. Yet, how often have we heard "Public Citizen" tell its constituents that they can link to anything, at anytime, and ignore the property rights of website business owners?

Apple's trade secrets were allegedly published by a website, and a California court is on the verge of entering an order shutting the website down. Consumer protection interests defended those responsible for the theft.

The NCAA has just approved new rules for bloggers...limiting their ability to report live from athletic events because the NCAA owns certain rights to the airing of their events, in the face of opposition from a broad array of "free speech" expansionists. 

A court in California recently stripped a website of its immunity granted by federal law, rejecting the consumer protection stance and assuming a pro-business perspective. 

And so it goes. The pendulum is swinging. Swinging back from an apogee of liberalism and expansive notions of free speech and towards a fulcrum of normalcy. Swinging back to a level playing field in which the pre-Internet property rights of businesses are returned to businesses. But this process is just beginning to play out here in the US and all around the world. And the tools of aggression will once again be wielded by the Ralph Nader founded "Public Citizen" and its many constituents and followers. "Free speech" liberals are all about protecting free speech...unless they don't agree with it.

Dozier Internet Law Review of Recent Legal Developments

Dozier Internet Law is continuing to monitor proactively legal developments in the US and in other countries. In France, the 19% Value Added Tax for delivery by foreign (yes, US) businesses supplying software updates, electronic data, distance learning, online subscriptions, and other electronic services to French citizens, even if the US business has no other connection to the country, is authorized and supported by an EU directive. Also, an agreement has been reached between the French government, ISPs, and film and music rights owners that will punish illegal downloaders of copyright protected music and films by cutting off their internet access.  "The Internet must not become a high-tech Far West, a lawless zone where outlaws can pillage works with abandon or, worse, trade in them in total impunity. And on whose backs? On artists' backs," the French President stated upon announcing the new anti-piracy program.

In Canada, on the tail of proposed legislation that could create a Canadian DMCA-like copyright infringement take-down notice tool, a defamation judgment has been entered against the director of the Canadian Association for Free Expression in the sum of $20,000 in compensatory damages and $10,000 in punitive damages for nine defamatory postings.

In the EU, and Antigua and Barbuda, sanctions are on the way against the US for banning online gambling in apparent violation of the World Trade Organization Treaty in which each member pledges not to institute a law or policy that would have a materially adverse economic impact on other members. Antigua and Barbuda claim that a huge percentage of their Gross National Product is generated from online gambling, which is illegal in the US and subject to stepped up enforcement measures here.

And in the US, the State of Pennsylvania is now requiring third party sellers on e-Bay to get auctioneers' licenses, and this requirement is not necessarily limited to in-state sellers. In Missouri, a town ordinance has been passed prohibiting cyberbullying after the suicide of a 13 year old after receipt of intentionally hurtful messages on MySpace. Expect this to be the first of many efforts at the local, state and federal level to address this perversion of free speech, and expect to see the ACLU, Public Citizen, and other "consumer rights" organizations attack the laws through lobbying and lawsuits.  And in California, the use of another party's name in a chatroom to identify the "poster" almost resulted in criminal indictments after an FBI investigation. This form of "online identity theft" in chat rooms (and by implication in blogs, forums and websites) can result in criminal liability for impersonating another person under either forgery, fraud, or identity theft common law.

Dozier Internet Law continues to monitor and evaluate developments in the law of the web. Right now it looks like the laws and decisions are continuing to catch up with the "Wild West" mentality that is so prevalent among the "scofflaws" of the web. It's good to remember that some pioneers get arrows in their backs, I guess.

Dozier Internet Law Reports Congress Struggling with Bloggers as Journalists

While the blogosphere continues to portray themselves as journalists, traditional professional journalists are panicking at the thought. These real journalists understand the balancing act of free speech and accuracy and objectivity in reporting. The essence of their credibility is the reputation of journalistic work as balanced, fair and fully vetted by editors and publishers. Most of the bloggers publish inherently unreliable and often false information if you hear the real journalists talk.

I spent some time in LA recently discussing the issue with several journalists, including true entertainment industry website publishers, and they have nothing but contempt for the blogosphere. They insist most bloggers are not journalists, but when they attempt to define legitimate journalism, they can't. Most journalists don't join their union, the education background of journalists varies widely, and there does not seem to be an easy description for legitimacy.

Here is why they are so worried: They are being lumped in with the bloggers in legislation before Congress that would create a bar to requiring the disclosure of confidential sources. And the bill is likely to fail, frankly, based on the inability of the journalists to explain to Congress how to draw a line between real journalists and the blogosphere. On the one hand, Congress is ready to protect confidential sources for journalists. On the other hand, extending such a privilege to the blogosphere (which by definition includes the mobosphere of miscreants and scofflaws) is unpalatable to Congress. So, the House of Representatives recently passed the bill but added a requirement that significant income be generated by the blogger in order to qualify for the privilege of not revealing confidential sources. My guess is that the bill will die or be gutted in the Senate, or in Conference Committee, unless the journalists can somehow create a clear distinction between themselves and bloggers.

Why is including bloggers such a big deal? Because bloggers will publish information that is defamatory or otherwise inappropriate or illegal, and do so with claimed false attribution to a third party, and then claim privilege when asked the source. Check out the Dozier Internet Law Blogger Defamation Issues for more insight on blogger defamation.

We recently found "Public Citizen", the Nader free speech and consumer rights group, recommending and linking to a description of how to get rid of evidence in website log files that would allow an aggrieved party to figure out who was responsible for third party blog posts. This type of advice is pro-blogger, but anti-journalist, and is one of the concerns Congress has in trying to pass this law but change the definition of its applicability to cut out bloggers.

Journalists are now realizing that they are known by the company they keep. If the blogosphere could dis-associate itself from the crooks, crazies and thieves then maybe the legitimate blogosphere could catch a break here. I don't see that happening, though. 

Dozier Internet Law: Internet Lawyer Experts

Welcome to the Dozier Internet Law Internet lawyer blog, our little corner of the web. Our law firm, Dozier Internet Law, represents business interests on the web. Sometimes we represent businesses that are victims of intellectual property theft or defamatory attacks as their Internet lawyer, and just as often we represent recipients of "cease and desists" and lawsuit defendants. And if we are considered by some to be Internet lawyer thought leaders of the conservative, pro-business interests, then so be it. But at Dozier Internet Law you'll get the unbiased perspective and advice from highly seasoned and experienced Internet lawyer experts. Visit us online or view Dozier Internet Law on Defamation and Dozier Internet Law on Web Startups, both videos available through Youtube.com.

Interested in the Dozier Internet Law Internet lawyer insight into the Federal lawsuits filed each month dealing with the web? Visit:

• Trademark
• Copyright
• Defamation
• Domain Names
• Unauthorized Access to Computers
• Trade Secrets

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And don't forget to keep up with the breaking issues of the day. View our youtube.com videos dealing with online defamation: Big Five; Next Five; and Why Addressing Online Defamation is Important.. Also, don't miss a video message from Mr. Dozier: Internet Lawyer-John W. Dozier, Jr.

The content of this Dozier Internet Law Internet lawyer blog is not legal advice, should not be relied upon as such, and you should certainly retain a high quality Internet lawyer for advice and guidance on any Internet law issues.  And in satisfaction of lawyer ethics rules, please be advised that CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE OR MATTER, AND PRIOR CASE OR MATTER RESULTS DO NOT PREDICT OR GUARANTEE A SIMILAR RESULT IN THE FUTURE.