Keeping it Legal

Learning to Protect Yourself in the Interactive Space

Christina GagnierStephanie Margossian

consult [at] gamallp.com@gamallp

Gagnier Margossian

Intellectual Property

Government Affairs Corporate Affairs

Privacy Entertainment

First Amendment

Team

Digital Strategy

PRIVACY

Where is my data going?Q:

➡ People want to know how their data is being used.

➡ Who is seeing profile data? Credit card data?

➡ Even if you are just sharing high-level demographic data with advertisers, still best to advise.

Do people really care?Q:

➡ YES.

➡ Look at who your site users are.

➡ YOU are not Facebook. Most likely.

USER-GENERATED CONTENT

Who owns what I upload?Q:

➡ You can own content that is submitted-- the “irrevocable license”

➡ Think about the nature of your site -- explore alternative licensing (CC).

➡ Whatever your policies are, set them out in the terms of use.

TERMS OF USE

Why a TOS & what do I include?Q:

➡ A Terms of Use/Service sets out your “rules of the road”.

➡ Address things like accounts, advertising, intellectual property, links to other sites, disclaim warranties, liability.

➡ Whatever your policies are, set them out in the terms of use.

So I do X? Am I Liable?Q:

➡ Two key provisions on any site: Disclaimer of Warranties & Limitation of Liability.

➡ These need to be tailored for YOUR USE and YOUR NEEDS.

➡ Other key things: Choice of Law & How You Handle $$$.

COPYRIGHTFAIR USE

When do I have a copyright?Q:

➡ You write it, it’s yours.

➡ If you want to be able to protect it and sue for copyright infringement, get a copyright through the US Copyright Office.

When do I have to give credit?Q:

➡ Give attribution.

➡ Look at the licensing (Creative Commons, etc.)

➡ Sometimes, attribution is not enough and you need permission.

➡ Check out site policies.

What is a “fair use?”Q:

➡ The purpose and character of use (commercial v. educational).

➡ Nature of the copyrighted work.

➡ Amount used in relation to the copyrighted work as a whole (%).

➡ Effect of the use on the market or value of the copyrighted work.

plagiarism...

So, plagiarism?Q:

➡ Don’t make someone else’s work your careless “creative writing” project.

➡ Copying and changing a few words does not make it yours.

➡ For bloggers especially, could face the author’s online fury.

CHILDREN

Is your project for kids 12 & under?Q:

➡ If you deal with children 12 and under, you are required to comply with the Children’s Online Privacy Protection Act.

➡ Collecting limited information & gaining parental consent.

➡ Children 13-17: Still be careful.

FIRST AMENDMENT

“D” is for defamation?Q:

➡ Issuance of a false statement about someone else that causes them harm (Online = Libel).

➡ Check your facts.

➡ Watch it.

FEDERAL RULESFTC BLOGGING GUIDELINES

Rules for Bloggers?Q:

➡ Guidelines from the Federal Trade Commission on disclosure rules for bloggers.

➡ Reveal relationships with products and companies.

➡ Reveal affiliations.

➡ Practical: Avoid the “Shill” Effect.

bad behavior...

What do I do with “jerks?”Q:

➡ Make sure to have a “community policy” that outlines how you deal with bad behavior.

➡ We advocate a “strike” type of policy.

➡ You do need to remove users who harass others.

BUSINESS

I have this great idea. So now what?Q:

➡ Three Considerations:

✓ Formation

✓ Taxes

✓ Licenses

Why do I care?Q:

➡ What form your business takes will delegate liability protection down the line.

➡ The Tax Man will come for you. When he knocks at your door, you want to be ready.

Don’t be caught with your pants down.

What are my choices?Q:

➡ Sole Proprietorship

➡ General Partnership

➡ Limited Liability Partnership

➡ Limited Liability Corporation

➡ Corporations (S and C)

Sole Proprietorship or General Partnership?

Q:

➡ Both:

✓ Require little to no paperwork

✓ Offer absolutely no protection.

➡ Sole Proprietor = work alone.

➡ General Partnership = relationship with other people for a profitable purpose.

LLP or LLC?Q:

➡ Both offer partners and members protection from liability.

➡ Both offer tax benefits.

Maybe a Corporation?Q:

➡ Offers the most protection of all the corporate forms.

➡ C-Corp v. S-Corp Matters.

➡ Are you planning to have shareholders or investors?

To Profit or Not to Profit?Q:

➡ Non-profits must further a purpose that provides some social benefit.

➡ Non-profits are corporations that make a tax election under section IRC 501(c).

➡ Beware, section 501(c).

Cross your t’s & dot your i’s. Uncle Sam is watching.

I’ve heard about an L3C?Q:

➡ Differences from traditional LLC:

✓ Exists for charitable purpose

✓ Earning a profit is not the primary purpose

✓ Not organized to accomplish political or legislative purpose.

Anything else I need to consider?Q:

➡ Where I incorporate.

➡ How much risk I want to assume.

➡ City or county business license.

➡ Operating Agreement.

Why an operating agreement?Q:

➡ Protect partners or members.

➡ Give more control over how you run your business.

Three’s Company?

Do you work with 3rd parties?Q:

➡ If you work with third parties, you have to make sure they abide by your policies.

➡ Create Independent Contractor/Vendor agreements with third parties.

➡ Consider Non-Disclosure/Mutual Non-Disclosure Agreements.

CRISIS

Oh S**t Moments???!!!Q:

People forgive you for stupidity.Nobody likes a liar.

➡ Data Breach

➡ Hackers

➡ Blog post = defamation, etc.

➡ Get served a “take down” notice

GAME PLAN

How do we make sure a plan is legal?Q:

➡ DIY Legal can work sometimes, but best to meet with a solo or small firm for initial preparation.

➡ That “gut” feeling: If you feel “icky” about something, your instincts are probably right.

CHECKLIST

1. Clear Privacy Policy2. Clear Terms of Use

3. Clear Community Rules4. IP Check = Free & Clear?

5. Freelance/Ind. Contractor Agmts

CHECKLIST

6. Non-Disclosure Agreements7. Business Formation - Pick the right form.8. Business Licenses9. Crisis Plan10. Apply the “icky feeling” test.

Reminder that we are lawyers...

This presentation is provided merely for educational purposes and does constitute legal advice.

@gamallpgamallp.com