ExpertPreneurLaw℠ Blog

The Cease and Desist Letter that Won't Go Away

Every ExpertPreneur will learn over time that it is a common first step in the case of copyright or trademark infringement, and even for other claims like defamation, to send a cease and desist letter to the alleged wrongdoer in an effort to bring the offending conduct to a quick end.

Such letters are typically sent by attorneys and contain mild or not so mild threats of what will happen unless the terms of the letter are complied with.

In the past, these letters were mostly kept between the parties and their counsel but, with the advent of the Internet in general and Blogs in particular, the stakes have been raised.

Many a cease and desist letter writer has been surprised to see that their letter has not only been rejected, but posted online in an effort to hold the writer and his or her client to public opprobrium.

Now the stakes have been raised again when a law firm that sent a cease and desist letter took the position that the cease and desist letter itself was copyrighted and that publication of it on the Net could subject the recipient to law suit.

To be fair, this law firm has been the subject of so much negative publicity on this issue, I hesitate to name it since it's both easy to find and because I don't like to pile on unnecessarily.

To make a long story, that is still being played out, short, the threatened party obtained the services of consumer watch dog Public Citizen , whose litigation group has dared the law firm to assert its copyright and sue. Time will tell what happens but there is no doubt that the threatening law firm and its client have gotten less than the kind of publicity they would like.

But, for ExpertPreneurs, the lesson is simple. While cease and desist letters have their place and are important weapons for establishing notice to an infringer of their wrongful conduct, it is best to take care before unleashing your lawyers, to take into account the public relations aspects of your actions, and to make sure they're worded in a way that will get you to where you want to go and won't backfire.


Technorati Tags: cease and desist, publicity, defamation, copyright, litigation

Are Bloggers Journalists?

In her "Writes like she Talks" Blog, Jill Miller Zimon writes about proposed federal legislation that provides "shield" protections to journalists and whether bloggers would or would not be included.

These "shield" protections deal with privileges afforded to journalists protecting them from having to divulge their resources,  among other things.

As the post points out, however, the crucial question is in how to define who a journalist is, for purposes of the law.

For example, would ExpertPreneur bloggers be included if journalism was not their main line of work?

Since an underlying concern of defining who is included as a journalist deals with comfort that they are abiding by professional ethics and codes of conduct otherwise followed by more mainstream journalists, the answer, as yet, is not clear.

The proposed bill is not the first stab at this subject, but it is the latest, dealing with federal cases. 

Prior versions sought to impose "financial gain" and "source of livelihood" requirements in order to be considered a journalist but that language is not yet in the current proposal.

The issue of journalist privilege for bloggers is just one of many shakeups in legal theory made necessary by the increasing prevalence and influence of blogs in today's World.

As an example of what rights and responsibilities ExpertPreneur bloggers may find themselves affected by, this legislation bears watching.

Where can you be sued for your Internet Activities - Part 2

In yesterday’s post, I began discussing how and when an ExpertPreneur can be sued in a courts in a state where they don’t live or have an office.

Specifically, I started to write about the concept of “long arm jurisdiction”, allowing courts sitting in other states to assert authority over out of state businesses when they had what were determined to be sufficient contacts with the target state and where the claims arose out of those contacts.

So, in the age of the Internet, what exactly is enough?

Interestingly, cases vary from state to state because the specific wording of a particular state’s statute on the subject and the interpretation of that state’s courts, varies and is often shaded on a case by case basis.

A recent case, interpreting New York’s long arm jurisdiction statute, serves as an example of what is NOT enough – at least in New York.

The case, Best Van Lines, Inc. V. Walker, was a defamation case in which a New York moving company sought to sue an out of state web site owner that posted consumer comments about moving companies for allowing and making allegedly defamatory statements about the company on its website.

The nature of the case is important here because New York’s statute allows long arm jurisdiction when, among other things,  the out of state defendant “transacts business” within the state.

Despite claims that the Defendant took specific acts to post and highlight the alleged defamatory statements about the Plaintiff, essentially claiming that the New York Company was carrying on its business without legal compliance and required insured.

Even if defamatory, the New York court held that this was not enough to “transact business” in New York.

And this was true even if people could exchange comments and other information with the website from New York.

What would have been enough?

Other cases point to actual commerce being done through the website, such as the taking and processing of actual orders, so long as the claim is somehow connected to the overall transaction.

For ExpertPreneurs, there are two important lessons.

First, if and when you are sued by an out of state party, one of your first considerations should be to determine that, under the prevailing laws of that state, you are properly under that court’s power.

Second, as a planning tool, keep in mind that the more actual business done from your site, the greater the chances that jurisdiction over you may be found.

Anything you say in your Blog may be held against you

Any expertpreneur who follows trends in online promotion knows of the popularity of blogs as both a money making vehicle and a credibility enhancing device as well -- a forum to show what you know and to develop your online brand.

Yet, it's also become increasingly clear that expertpreneur bloggers are subject to the same potential for legal liability as others when they post things online that may amount to intellectual property infringement, defamation or other legal wrongs. 

A recent medical malpractice case in Boston shows yet another pitfall of blogging to which expertpreneurs must stay alert, the fact that whatever you say in your blog may be used against you in Court.

In Binns v. Lindememan, et al., the Defendant, doctor, who was accused of failing to diagnose a diabetic condition in a patient who later died from related complications, wrote an anonymous blog about the trial containing a link to a Power Point presentation that had once been given by the Plaintiff's attorney and that contained information from his own attorneys that jury verdicts mainly rose and fell based on an assessment of the Defendant's character.

The Plaintiff's lawyer was alerted to the Blog by a colleague and confronted the doctor on the stand, demanding to know if he was the anonymous blogger.

Can you guess how fast the case settled? According to the linked article from www.law.com , the very next day.

http://www.law.com/jsp/article.jsp?id=1181293541242

Blogger by the Dozen

On my firm's website, one of the most frequently accessed articles is one that I wrote entitled "The Legal Risks of Blogs".

Over at the web and blog directory site, Akiva directory, there is a concise presentation of legal concepts applicable to blogging. Check it out at Blog Law » 12 Important U.S. Laws Every Blogger Needs to Know .

Permission to Speak Denied

A recent article in law.com deals with an unusual appellate case in California regarding the law of defamation.  While defamation, false statements about another that harm their reputation, is not protected under the first amendment, at least with regard to private citizens, typically, the remedy for defamation is a lawsuit seeking money compensation for the damage suffered because the First Amendment, protecting free speech, is uniformly interpreted by courts to resist efforts at prior restraint until the speech is proven not to be protected or unless it poses an imminent danger.

But, in Balboa Island Village Inn v. Lemen, the trial court issued an injunction against the defendant, who had been found liable for making defamatory statements, from repeating them after losing at trial.

The Defendant's attorneys appealed and, on appeal, the injunction was vacated on the grounds that even repeating previously determined defamatory comments was protected free speech that could not be restrained in advance, a conclusion that would've forced the plaintiff back into court on a new action every time the Defendant continued the pattern.

On further appeal to the California Supreme Court, the original lower court ruling and injunction was reinstated in a 5-2 decision, noting that preventing the repetition of defamatory remarks  is not the same as prior restraint of speech not yet found to be unprotected by the First Amendment.

This case, while reasonable on its surface, does raise some troubling issues that all expertpreneurs should be mindful of in their writing and speaking careers.

Chief among them is that, while truth is always a defense to a defamation claim, the Balboa court's finding would force a defendant-speaker to take the risk  of being in violation of an ongoing injunction even if speech that may have been found to be defamatory at one time, turns out to be true later on.

Still, cases on defamation vary from state to state and expertpreneurs would be well advised to have their writings and prepared speeches reviewed carefully in advance to steer clear of potential costly claims.