mark grossman, chair, technology law group, becker & poliakoff, p.a. legal issues for emarketing...

Mark Grossman, Chair, Technology Law Group, Becker & Poliakoff, P.A.

Legal Issues for eMarketing Professionals

Mark Grossman, Attorney and Miami Herald “TechLaw” Columnist

Frequent Speaker on Technology, Intellectual Property and Information Law

Chair of the Technology Law Group of Becker & Poliakoff, P.A.

Technology Group’s Home Page http://www.EComputerLaw.com http://www.EComputerLaw.com

Firm’s Home Page http://www.becker-poliakoff.comttp://www.becker-poliakoff.com


Session Summary

Copyright law E-sign COPPA Overview of anti-spam legislation


Copyright Basics

Copyright law fully applies on the Net If material is copyrighted by someone

else, get the author’s permission True or false?

– If you forget to put a copyright notice with the “c” in the circle or the word “copyright” on your written work, you lose all your copyright protection?


Copyright Mechanics

Answer is ??????????????? This has been the answer since

1989 Advantage of a copyright notice

– Prevents an infringer from claiming innocence as a defense

– Prevents misunderstandings


When is it Appropriate to Register a Copyright with the Government?

Not required If you don’t register, you’ll have a

copyright, but can’t successfully sue for infringement until you register

At the least, this will delay the filing of your lawsuit while you deal with the registration process


The Legal Landscape

Section 201 of the United States Copyright Act states the following, in part:

“(a) Initial Ownership. Copyright in a work protected under this title vests initially in the author or authors of the work”


The New E-Sign Act The Electronic Signatures in Global and National

Commerce Act (E-Sign) became effective on October 1, 2000. 15 U.S.C. Sec. 7001 et seq. and 15 U.S.C. Sec. 7021.

Electronic signature is defined in the Act as "an electronic sound, symbol or process attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record"

Defines electronic signatures broadly enough to encompass click-wrap agreements. In addition, the E-Sign Act says that any signature, contract or other record cannot be denied legal effect solely because it is in electronic form


E-Sign Provisions The parties to a contract must be able to

retain an electronic record that "accurately reflects the information" in the contract

The electronic record must remain accessible for later reference by all persons who are entitled to access

The electronic record of the transaction must be in a form that is capable of being accurately reproduced


UCITA, E-Sign, and UETA Reconciled UCITA is the result of efforts to produce model

law governing, among other things, clickwrap agreements. Provides that records may signed and retained electronically. Also gives defenses, like those involving electronic error.

UETA validates the use of any electronic records or electronic signatures, regardless of the technology; establishes technical requirements; and allocates liability depending upon the use of security procedures to detect error and changes.

E-Sign endorses the UETA approach- gives electronic signatures and contracts the same legal standing as paper-based signatures and contracts in a uniform matter.


EU Electronic Signatures Directive

EU’s Electronic Signatures Directive, adopted in 1999, was the first example of Europe’s effort to provide a framework for electronic commerce

The Directive was not designed to regulate anything in detail, but defines the requirements for electronic signature certificates and certification services so as to ensure minimum levels of security and allow their free movement throughout the Internal Market


Who Must Comply With the Children’s Online Privacy Protection Act (COPPA)?

You must comply with the Rules if you operate a commercial Web site or online service directed to children

If you operate a Web site geared to general audiences, and not directed to children, the Rules apply only if you have actual knowledge that you are collecting personal information from children

The Rules also apply to that portion of a general audience Web site that is specifically targeted to children

The Rules, however, do not place any particular burden on you to affirmatively confirm that you are dealing with an adult


How to Comply: Do’s and Don’ts

Do not collect information from children under the age of 13

Post prominent links on your Web site to a notice of how you collect, use, and disclose personal information from children

Notify parents if you wish to collect information from their children and obtain verifiable consent before you collect, use, or disclose any personal information


How to Comply: Do’s and Don’ts II Do not condition a child’s participation in

online activities on the provision of more personal information than is reasonably necessary to participate in that activity

Allow parents to review, delete, or prohibit further collection of information from their children

Establish procedures to protect the confidentiality, security, and integrity of personal information that you collect from children


COPPA: “Collecting Information” “Collecting information” is meant to be interpreted

broadly The FTC says that “[t]he term was meant to encompass the many ways that Web site operators could gather information from children”

It includes “the direct or passive gathering of any personal information from a child by any means…”

In addition, it includes, “[a]ny online request for personal information” by your Web site “regardless of how you use “passive tracking or use of any identifying code linked to an individual, such as a cookie”


COPPA: Obtaining Parental Consent Parental consent must be actual consent Identifying whether the parent gave

consent is the modern day dilemma: how do you know the parent, and not the child, signed the poor report card?

In drafting the Rules, the FTC had to balance economics and the need to protect children

The compromise was a sliding scale


Unwanted email or “spam” Spam threatening to cripple email Unwanted bulk email increased

approximately 4% in March Spam accounts for 45% of overall email

traffic The average “wired” American received

more than 2,200 spam messages in 2002


The Cost of Spam Spam has grown from nuisance to

threat status More importantly, spam is costly

– Storage– Transmission– Computing costs imposed on ISPs– Cost of time it takes people to sift and

delete unwanted emails– Lost convenience– Added expenses to curb spam


Why Has Spam Grown At Such a Rapid Pace?

Sending an email incurs no direct cost The cost of sending bulk emails is so

small that a response rate of one in 100,000 justifies many bulk mailings

Email addresses on CDs sell for about $5 per million

Spamming software can be downloaded free from the Internet or purchased for a few hundred dollars


Anti-spammers Anti-spam advocates are pursuing both

legal and technological remedies Florida has not enacted spam legislation,

although a Florida bar rule (Fla. R.P.C. 4-7.6(c)(3)) requires attorneys who advertise via unsolicited e-mail to put "legal advertisement" in the subject line

Anti-spam legislation has been enacted in 28 states


Anti-spammers Sens. Conrad Burns and Ron Wyden

introduced the “CAN-SPAM Act,” a bill outlawing the use of false return addresses

In July 2002, the EU passed a directive banning the sending of email unless the recipient has specifically “opted in” to receive it


Sophisticated Anti-spam Filters and Other Possible Solutions to Spam

“Black lists” “White lists” “IronPort” “Challenge and response” filters Content analysis Legal and technological solutions Managing individual email settings Resigning yourself to using the delete button


Mark GrossmanBecker & Poliakoff, P.A.

(305) 260-1018(800) 533-4874

[email protected] To subscribe to the electronic version of

my weekly syndicated column, TechLaw, please e-mail your request to [email protected]

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mark grossman, chair, technology law group, becker & poliakoff, p.a. legal issues for emarketing...

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