Tag Archives: Internet law attorney

The Power of a Tweet

Though excellent tools for expression and brand marketing; a tweet can be a powerful method of expression. As the use of sites like Twitter and Facebook increase; it appears legal issues regarding what one posts are also on the rise. Laws and regulations about social networking are beginning to emerge as the legal system continues to see more cases involving defamation, fraud, and cyberbullying.

At a young age, many of us are often taught if you can’t say anything nice, don’t say anything at all. This simple life lesson is often disregarded in the digital age and the results of a post could prompt one to seek legal advice. Based on your post, you might find yourself in front of a judge! Even if you delete the tweet, it is most likely someone has retweeted or shared it. Prior to making a post, consider if it may be defamatory to a third party. Also, the terms of us for the site because the information you disclose might not belong to you.

There have been several cases in the media about online defamation. One of the most sensational involved Courtney Love (Gordon & Holmes v. Love, No. BC462438), who tweeted an alleged defaming statement about one of her attorneys. The attorney responded with a lawsuit against Love. At trial, Love stated she intended to send a private direct message; but inadvertently tweeted the information. The jury ultimately found in favor of Love.

Fraudulent Twitter (and Facebook) account cases are becoming more prevalent as well. Celebrities, businesses, and even the average person can be the victims of a fake Twitter account. These accounts can create problems if the anonymous owner posts information that can be interpreted as misleading, controversial or libelous. Twitter currently is in the spotlight for trademark infringement because the Estate of James Dean wants ownership of the Twitter account @JamesDean. James Dean, Inc., et al v. Twitter, Inc., et al, No. 1:14-cv-00183, notice of removal (S.D. Ind., Feb. 7, 2014).

Cyberbullying has become a hot topic with Twitter and other social networking sites. The sites are used in an intrusive manner to expose private information or even fraudulent information about a person in an effort to cause humiliation or mental harm. Megan Meier and Ryan Halligan are perhaps the most famous cases of cyberbullying because each ended in tragedy. As recently as January 2014, cyberbullying via social media had been implicated in the attempted suicide of a rape victim in Maryville, Missouri. In State v. Bishop, a North Carolina teen became the first person in Alamance County to be convicted under the new state cyberbullying laws. The case is currently under appeal.

Not all situations with tweets involve defamation, fraud or cyberbullying. Tweets are now being used as tools for employers to screen potential employees or make personal changes. Earlier this year, a young advertising executive lost her job because of an inadvertent tweet she posted as a joke prior to boarding a flight to Africa. Unfortunately her employer did not find it funny and she lost her job before her flight even landed.

The power of the pen is not a new concept to society; yet we should exercise more caution with online posts because the ramifications might be more than you expected.

If you need additional information about the impact of social networking communication, please contact Attorney Mark Ishman at the Ishman Law Firm at (919) 468-3266 or mishman @ ishmanlaw.com.

Impact of the Internet on Jury Trials

In the era of the internet, the legal profession is faced with the growing issue of information being at the fingertips of jurors and others involved in the case. Computers, tablets, laptops and smartphones are common place in some courtrooms and can be used by prosecutors, judges, defense attorneys, court reporters and jurors. “While technology can be a benefit to the legal system,” Mark Ishman, Internet Lawyer said, adding that “it also can be a hindrance to the interest of justice and to individual privacy.”

It is impossible for the courts to control the flow of information in an effort to insure that justice prevails for the parties involved when the internet becomes a tool to decide the case. The legal system provides safeguards to prevent the miscarriage of justice by providing jury instructions in an effort of fairness. However, “when jurors have access to the internet, it is possible that mistrials may occur because everything on the internet is not reliable” Mark Ishman, Internet Lawyer. The jury decision at trial should be based on the evidence presented and not by what a juror may find by conducting independent internet searches.

A case can also be impacted by access to email and jurors can run the risk of being found guilty of criminal contempt for juror misconduct. In a recent federal Pennsylvania case, a juror requested to be dismissed from jury due to employment-related reasons. Upon the court granting her dismissal, this dismissed juror then sent an email to the remaining jurors that discussed the merits of the pending case as if she had remained on the jury. Then when this email was received by the pending jury, one of jurors responded to this email from the dismissed juror. When the court discovered this inappropriate conduct, it fined the first dismissed juror $1,000 for sending the email to the jury, and dismissed the second juror who responded to the email. United States v. Juror No. One, 866 F. Supp. 2d 442, 453 (E.D. Pa. 2011)

As a reminder, when serving on a jury, the use of your smart phone or other electronic devices cannot only impact the outcome of the case; but it also can have an impact on you in the form of criminal charges and/or fines.

If you need additional information about Internet Law, please contact Internet Law Attorney Mark Ishman at the Ishman Law Firm at (919) 468-3266 or mishman @ ishmanlaw.com.

Commercial General Liability Insurance Policy Does Not Cover Damages Caused By Hackers

The Supreme Court of the State of New York held that a commercial general liability insurance policy would not cover damages caused by a third-party hacker’s unauthorized access to a computer. Zurich American Insurance v. Sony Corporation of America, Civil Case No. 651982/2011, Supreme Court of the State of New York (February 2014).

In this case, Sony Corporation suffered a well-publicized security breach that compromised over 70 million of its PlayStation user accounts. When PlayStation Users filed lawsuits against Sony Corporation for alleged damages they sustained from this security breach, the insurance companies that represent Sony Corporation filed declaratory lawsuits for the court to determine whether Sony Corporation’s commercial general liability insurance policy would cover it for the alleged damages caused by a third party’s unauthorized access to its computer network.

The Supreme Court of the State of New York found that Sony Corporation’s commercial general liability insurance policy was written to only cover security breaches committed by the insured, Sony Corporation, and not third party hackers. As a result, it appears that Sony Corporation’s insurance policy will not cover its defense and expenses in the PlayStation security breach lawsuits.

Due to the daily number of security breaches, the insurance industry is now offering new insurance options to businesses that would cover them for liability resulting from security data breaches committed by third-party hackers.

If you believe that your computer, website, cloud account, email account, or other device connected to the Internet was accessed without your authorization or access exceeded your authorization, or if you have been wrongly accused of accessing a device connected to the Internet without authorization, please contact Computer Law Attorney Mark Ishman at the Ishman Law Firm at (919) 468-3266 or mishman @ ishmanlaw.com.  To learn more about computer law, visit Mark Ishman’s computer hacking law web-page http://www.ishmanlaw.com/hacking-unauthorized-access.php.

Hacking Law and What To Do If Your Computer/Account Is Hacked

Businesses and individuals are affected everyday by unauthorized access to their computers, email and social media accounts (e.g., Facebook®, Instagram®,Yelp®, Google®, Yahoo®, LinkedIn®, Tweeter® and other social media forums and blog websites). When this occurs, it can result in substantial damage, such as theft of intellectual property, unauthorized communications, damage to goodwill and reputation and theft of personal pictures/videos.

 

When you are a hacking victim, you need legal assistance from a hacking law attorney.  Mark Ishman, of the Ishman Law Firm, is a computer and email hacking lawyer who helps victims in rectifying the injustice committed upon them.

 

There are two important steps that hacking victims must do immediately upon realizing that their computer, email or other accounts have been hacked.  First, create a back-up of all evidence of your hacking incident.  This would include access logs with date, time and IP addresses of when your computer/email/online account was accessed without your consent.  Second, a hacking victim needs to retain a hacking lawyer as soon as possible to provide assistance in preserving the data and identifying the hacker. As part of preserving evidence of your unauthorized access of your computer/email/online account, a hacking attorney will investigate your hacking incident and contact third parties to preserve evidence.  This is very important because many third-parties that could have helpful evidence to identify your hacker will delete such evidence as part of their regular business practices.  You must act quickly due to many third-parties practices deleting data every 7 days after your hacking incident. 

 

This is why it is so important to preserve all evidence of your hacking incident within your control, as well as retaining a hacking lawyer to investigate and assist you.  A hacking attorney will collect evidence aimed towards identifying the hacker who accessed your computer, email or other account without your authorization.

 

As you can imagine, hacking law is an emerging area of law, and there always seems to be new court opinions and laws enacted to assist hacking victims.  For example, computer-related laws interpreted by the courts allow hacking victims to recover their incurred expenses of “time, money and resources to investigate and repair” the damages incurred from their hacking incident.

 

If you are a victim of an unauthorized computer hacking, email hacking or other account hacking incident, please contact hacking law attorney Mark Ishman, of the Ishman Law Firm, to assist you in investigating, repairing and recovering from your hacking incident.  Hacking law attorney Mark Ishman, of the Ishman Law Firm, can be reached at mishman @ IshmanLaw.com or (919) 468-3266.  For more information on hacking law, visit http://www.ishmanlaw.com/hacking-unauthorized-access.php.

How Long Must a Phrase Be For Copyright Protection?

Only original work product is entitled to copyright protection.

The United States Supreme Court has stated that the level of creativity required for a work to be “original” is extremely low. A work satisfies this requirement as long as it possesses some creative spark, “no matter how crude, humble or obvious it might be.” Feist Publ’ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (internal citations omitted). Thus, a work that originates from the author and contains any level of creative expression will satisfy the originality requirement. See id. Additionally, a copyrightable work is considered “fixed in a tangible medium” if it can be perceived, reproduced, or otherwise communicated for more than a transitory period, such as an email. See 17 U.S.C. § 102.

However, under the Copyright Act, “[w]ords and short phrases such as names, titles, and slogans” are not subject to copyright. 37 C.F.R. § 202.1(a).  When considering phrases, Courts must balance these factors in deciding whether words or short phrases are entitled to protection under the Copyright Act.

In Predator International, Inc. v. Gamo Outdoor USA, Inc., the plaintiff was attempting to enforce its alleged copyright registration for “unsurpassed performance.”  When considering this short phrase, a Colorado Federal District Court discussed in its opinion that other courts had found that short phrases, such as “Words Come Alive,” “Earth Protector,” “Chipper,” and “Retail Plus,” were not entitled to protection under the Copyright Act.  The Court then held that “unsurpassed performance” was also a short phrase that was not subject to protection under the Copyright Act.


If you are original work product that you would like to seek protection under the Copyright Act, or enforce your rights under the Copyright Act against a third party, please contact Internet Copyright Attorney Mark Ishman from the Ishman Law Firm, P.C. at (919) 468-3266 or mishman @ ishmanlaw.com.  Also visit Mark Ishman’s Internet Copyright law web page at http://www.ishmanlaw.com/internet-copyright-lawyer.php.

Mark Ishman Summarizes Key Internet Law Cases of 2013 – UNAUTHORIZED ACCESS

Throughout the year of 2013, there have been many noteworthy Internet Law cases.  Any attempt to summarize all of these Internet Law cases would be an epic accomplishment.  Rather then attempt such an astronomical task, Internet Law Attorney, Mark Ishman, has chosen a few Unauthorized Access cases of 2013, and has provided short summaries of them to explain how each of these cases have added clarity to Unauthorized Access Law.

  • Under the Computer Fraud and Abuse Act (CFAA), when employees access electronically stored confidential and proprietary data with permission from their employers, and then later misappropriate such electronically stored data before their company revokes their unlimited access to such data, such misappropriation of electronic data is not “unauthorized access” and does not violate the CFAA.  Aerofoil Techs. AG v. Todaro, 2013 WL 410873 (Southern District of New York 2013); see also <http://www.ishmanlaw.com/hacking-unauthorized-access.php>.  This is beginning to be the majority opinion in most federal circuits.
  • Under the CFAA, despite not having any legitimate reason to copy electronically stored confidential and proprietary data prior to resigning from his employment with his employer to take a position with another company, a former C-level officer was found not to have violated the CFAA because such copying conduct was ruled to be misappropriation, and not the unauthorized access, of data. Integral Dev. Co. v. Tolat, Case No. 3:12-CV-06575 (Northern District of California 2013), available publicly at <https://docs.google.com/file/d/0B4dsXU5JRvyidmxMUlRIOE0wc3M/edit>; see also <http://www.ishmanlaw.com/hacking-unauthorized-access.php>.
  • Under the CFAA, a jury found a man guilty of violating the CFAA for unauthorized access when he competed against his former employer by coaxing his former colleagues who still worked for his former employer to access the electronically stored confidential and proprietary data and provide it to him.  United States v. Nosal, Case No. 3:08-cr-00237 (California 2013);
  • Creating parody social media accounts do not violate the CFAA because defendant’s use of plaintiff’s name and image to create such accounts did not constitute “without authorization” of a protected computer under the CFAA. Matot v. CH, Case No. 6:13-cv-153 (Federal District of Oregon 2013) <http://scholar.google.com/scholar_case?case=14332075485572882838&hl=en&scisbd=2&as_sdt=20000006>. This appears to be the majority opinion among most scholars.
  • Under the CFAA, a publicly accessible website can remove access authorization to one of its users through notice, such as a cease and desist letter.  Thereafter, when such de-authorized user circumvents the website technology to access the website to obtain data, such circumvention is considered “without authorization” and such facts give rise to a bona fide claim under the CFAA.   Craigslist v. 3Taps, et al, Case No. CV12-03816 (Northern District of California 2013), <http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf>. Beware companies that employ scrapping technology;
  • Under the CFAA, when a website user accesses a website and obtains or uses data (e.g., scrapping) from such website in a way that is not authorized by such website, such as the website’s terms of use, then such gathering/scrapping of data “exceeds authorized access,” and violates the CFAA entitling the website to damages for “responding to an offense” and “conducting a damage assessment.”  Facebook, Inc. v. Power Ventures, Inc., Case No. 08-05780 (Central District of California, 2012), cert. denied (Ninth Circuit 2013).
  • The “cloud” is considered a protected computer under the CFAA.  Property Rights Law Group, PC v Lynch, Case No. 13-00273 (District of Hawaii 2013) <>;

If you believe that your computer, website, cloud account, email account, or other device connected to the Internet was accessed without your authorization or access exceeded your authorization, or if you have been wrongly accused of accessing a device connected to the Internet without authorization, please contact Computer Law Attorney Mark Ishman at the Ishman Law Firm at (919) 468-3266 or mishman @ ishmanlaw.com.  To learn more about computer law, visit Mark Ishman’s computer hacking law web-page http://www.ishmanlaw.com/hacking-unauthorized-access.php.

Mark Ishman Summarizes Key Internet Law Cases of 2013 – ONLINE DEFAMATION

Throughout the year of 2013, there have been many noteworthy Internet Law cases.  Any attempt to summarize all of these Internet Law cases would be an epic accomplishment.  Rather then attempt such an astronomical task, Internet Law Attorney, Mark Ishman, has chosen a few Online Defamation cases of 2013, and has provided short summaries of them to explain how each of these cases have added clarity to Online Defamation Law.

  • Under the Online Defamation “Doctrine of Republication,” alleged defamatory material is not considered republished when a website changes the online advertisements on the web page where the alleged defamatory material is published, even if the purpose of making such ad changes was “to reach a new or broader audience.” As a result, the statute of limitations for an Online Defamation claim does not reset every time there is a new advertisement that appears on the web page where the alleged Internet Defamation material is published.  In other words, mere changes in the advertisements that appear on a web page where alleged Online Defamation material is published does not alter the substance or form of the alleged Online Defamation material, and the Online Defamation Single Publication Rule applies.  Solomon v Gannett Co., Inc., Case No. A-6160-11T4 (Superior Court of New Jersey, Appellate Division 2013), available publicly at <http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2013/a6160-11.html>, Churchill v. State, 378 New Jersey Superior Court 471, 481 (App. Div. 2005), Firth v. State, 775 N.E.2d 463, 466-67 (New York 2002); see also <http://www.ishmanlaw.com/internet-defamation-lawyer.php>.
  • Under the Online Defamation “Doctrine of Republication,” alleged defamatory material is not considered republished when someone provides merely a link to the web page where the alleged Online Defamation material is published.  A link alone does not restate the alleged Online Defamation material and thus does not republish the material.  The Third Circuit Court of Appeals affirmed a Pennsylvania Federal District Court decision, and reasoned that “if each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated.”  In re Philadelphia Newspapers v. Vahan H. Gureghian, Case No. 11-3257, 2012 WL 3038578 (Third Circuit 2012), available publicly at <http://www2.ca3.uscourts.gov/opinarch/113257p.pdf>; Salyer v. Southern Poverty Law Center, Inc., 701 F. Supp. 2d 912 (Western District of Kentucky 2009); Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. 02-02258, 2007 WL 935703 (Southern District of California 2007); Churchill v. State of N.J., 876 A.2d 311 (New Jersey Super Court 2005); see also <http://www.ishmanlaw.com/internet-defamation-lawyer.php>.
  • Under California’s anti-SLAPP law, a tweet by an Internet Lawyer discussing the merits of his own pending case cannot be the basis for an actionable Online Defamation cause of action. Getfugu, Inc. v. Patton Boggs LLP, 2013 WL 4494952 (California Appellate Second District 2013), available publicly at <http://www.courts.ca.gov/opinions/documents/B231794A.PDF>; see also <http://www.ishmanlaw.com/internet-defamation-lawyer.php>.
  • Under § 230 of the Communications Decency Act, a website operator may be deprived of immunity if it significantly alters third party content by editing it and actually changing the meaning of the edited content and thus participating in the content’s development. Such reasoning can be applied to almost any contributory claim associated with Online Defamation material.  For example, changing ads, providing a link to, or tweeting about, alleged Online Defamation material is actionable only if such new ads, link or tweet is accompanied with new false, misleading or deceptive content that adds to the development of the prior existing Online Defamation material.  Ascend Health Corp. v. Wells, Case No. 12-cv-00083, 2013 WL 1010589 (Eastern District of North Carolina, March 14, 2013), available publicly at <http://www.dmlp.org/threats/ascend-health-corp-v-wells>; see also <http://cyberlawattorney.com/2013/12/03/when-can-you-overcome-§-230-immunity-defense/>; see also <http://www.ishmanlaw.com/internet-defamation-lawyer.php>.

If you believe that your reputation or business has been damaged by content published on the Internet (web page, blog, review website, Yelp.com, complaint website, or RipOffReport.com), or have been wrongly accused of publishing online defamation material, please contact Online Defamation Attorney Mark Ishman at the Ishman Law Firm at (919) 468-3266 or mishman@ishmanlaw.com.

ARE YOU OFFERING THIRD PARTY SERVICES ON YOUR WEBSITE?

The practice of injecting third party service with recurring billing into a transaction has drawn the attention and anger of federal and state regulators. To address this concern, Congress enacted the federal Restore Online Shopping Confidence Act (“ROSCA”). The primary purpose of this law is to protect consumers from deceptive data passing among merchants. One form of deceptive date passing among merchants is when consumers unknowingly authorize a merchant to transfer his/her payment information to another merchant for a separate online sale without requiring the consumer to reenter his/her payment information and consent to the third party transaction.

To address this concern, ROSCA has two principal provisions to protect consumers, which are:

(1) ROSCA requires third party sellers to disclose to consumers the terms of their offer, and the fact that the third party seller is not affiliated with the merchant.

(2) ROSCA also requires the third party sellers to obtain “the express informed consent” for the charge by obtaining the account number, name and address, and a means to contact the consumer directly from the consumer, and requiring the consumer to check the box or perform some other affirmative act to indicate his/her consent.

ROSCA is intended to be enforced by the Federal Trade Commission and the State Attorneys General, but it does not rule out private enforcement in civil litigation actions.

As an automotive dealer, if you are offering any third party services via your website, you will need to make sure that your “check out” procedures and disclosures are compliant with ROSCA. Such third party services offered at your website could be financial, insurance, warranty, satellite radio, paint and other services related to the purchased vehicle.

If your dealership’s website is offering third party services to consumers, then it may make sense to conduct a legal website audit of your “check out” policies and disclosures to make sure that you are compliant with ROSCA. Otherwise if your dealership’s website is not compliant with ROSCA, you may draw the attention of the Federal Trade Commission, State Attorneys General and civil plaintiff lawyers.

Mark Ishman is the founding attorney of the Ishman Law Firm, PC. You can reach Mark at: (919) 468-3266 or mishman@ishmanlaw.com. For additional information on this topic as well as other related topics, please visit www.IshmanLaw.com and www.IshmanLegal.com.

Internet Domain Name Disputes And How To Handle Them

There are thousands of Internet domain names that are being registered each and every day, and many of such registrations result in internet domain name disputes, such as Cybersquatting Continue reading

Legal Marketing Issues for Today

It is safe to say that most, if not all, potential customers utilize the Internet during their shopping process. This includes locating businesses, their products/services and customer reviews on the Internet after watching, hearing or viewing targeted advertisements.

In targeting potential customers, today’s modern businesses have invested heavily in their individual websites and virtual billboard advertisements such as pay-per-click and banner advertisements. Today’s businesses have also used Internet-based communications such as e-mails, instant messaging and Tweets™ to advertise their products and services, and have paid particular attention to the way Internet users locate the products/services in which they are interested.

With today’s new marketing opportunities come new risks as the changing law adapts to the evolving use of technology for commercial transactions. This article is intended as an overview of the many legal marketing issues the Internet raises for the modern business, and identifies new areas of law that Business Wealth Lawyer can provide advice and counseling.

Advertisement in the New and Evolving Media

As a modern business, you are spending hundreds, if not thousands, of dollars in your print, radio, television and online advertisements. Additionally, your investment in advertising naturally has developed your “branded” identity. As a result, all forms of your advertisements, website content and brands are your intellectual property, and they can be protected by obtaining federal copyright and trademark registrations. Not only do such Intellectual Property registrations add value to your business’ net worth, but they also can prevent, or quickly resolve, unfair and deceptive practices by a competing dealership that utilizes your copyrighted ad content or trademarks to compete against you. If you are spending hundreds of thousands of dollars in television, radio, Internet or print advertisements, a Business Wealth Lawyer can assist you in securing your intellectual property rights in order to add value to your business’ net worth and deter your competitors from unlawfully using it to compete against you.

Keyword Advertisements

As a modern business, you are also targeting your potential customers by using the same search engines those potential customers use to find information about their desired products/services and your business on the Internet. Internet search engines, such as Google®, bing™ and Yahoo!®, assist vehicle buyers in locating specific websites that have information about their desired products and services by displaying a list of sites that contain search terms or “keywords” entered by the potential customer. The order in which the listed websites appear takes on particular importance in light of the view that only the top few sites on the first page of the search results will be visited by potential customer. As a result, today’s modern businesses are utilizing online search marketing techniques that focus on increasing the likelihood that their specific websites will appear near the top of generated search results.

Used properly, online search marketing techniques can directly increase the number of visitors to, and sales by, your business. However, when these techniques are used improperly, they can cause your business to lose sales or impose liability upon it. This occurs when a business or competitor, utilizes another trademark, slogan or “catch phrase” as a keyword in its online search marketing techniques. Such unclean online search marketing techniques can result in liability for trademark and copyright infringement, unfair and deceptive business practices, fraudulent misrepresentation and intentional interference with contractual and business relations.

This unlawful activity typically happens in pay-per-click advertisements where one of your competitors pays Google® a fee each time their ad is displayed as a search result when the potential customer was searching for your business. If you believe that you are a victim of this type of activity, or similar unfair and deceptive practice, a Business Wealth Lawyer can assist you in stopping it and address the damages that you suffered as a result of such unlawful activity.

IF YOUR BUSINESS IS FACING ANY OF THE ABOVE IDENTIFIED LEGAL ISSUES, OR IF YOUR BUSINESS DESIRES TO BE PROACTIVE AND IMPLEMENT STEPS TO AVOID AND/OR MINIMIZE FUTURE RISKS, PLEASE CONTACT A BUSINESS WEALTH LAWYER.

Call our office today to schedule an Online Assessment of your business, and if you mention this article by name, we will waive our customary initial consultation fee. Be sure to use this opportunity to ensure that you are receiving the maximum benefit of your online advertisements. Call (919) 468-3266 or email mark@ishmanlegal.com. For additional information on this topic as well as other related topics, please visit www.IshmanLaw.com and www.IshmanLegal.com.