I was recently quoted on the FTC’s proposed “Do Not Track” list in the Maryland Daily Record (subscription required). The proposed “Do Not Track” list is a follow-up proposal in light of the success of the “Do Not Call” list. The proposal would allow consumers to notify advertisers that they do not want their personal information shared for online marketing purposes. The article discusses a variety of viewpoints as to the necessity of such regulation and looks at the potential difficulties with implementing such a list.

My quote in the article points out that advertisers’ fears about implementation of a “Do Not Track” list are probably a bit overstated. Consumers that are on the “Do Not Call” list are among those least likely to respond to a phone advertisement and being on the “Do Not Call” list is a free way for advertisers to eliminate people least likely to be good telephone sales prospects. I suspect that the same principle will be true of people that actively maintain membership on a “Do Not Track” list.

I am often contacted by potential clients that discover that ostensibly “private” information on social networks, particularly Facebook and Twitter, has become public, often to the potential client’s detriment. The content has often become public because a third-party, including other Facebook or Twitter users, or a third party blog, reposts the information, often in a negative light.

Content of concern to potential clients often includes an inappropriate photograph, or a now-regretful Facebook comment or Twitter post. I also routinely see concerns about direct messages on Twitter or wall-posts on Facebook. In most cases, the potential client asks what can be done to remove the offending content.

Unfortunately, there is usually little chance to remove such content because there is no legal basis on which to base demands for removal. Information that a user generates and publicly posts is generally not legally protected from further dissemination or commentary, except in very special cases where other legal principles such as copyright protection, false light or defamation may apply. If you have questions about your specific situation, contact a privacy attorney here at CyberLaw PC.

Potential clients are often frustrated to hear that opportunity for removal is limited and ask what can be done to prevent future scenarios. I generally offer three main tips to such potential clients:

First, you should always assume that ANY content you post or share on the Internet can become public. Whether it is e-mail, a photograph, a video or simple text, any document shared digitally, even amongst friends, can often find itself becoming viral, replicated thousands of times as it is shared via e-mail and other electronic means. Search for Karen Owen’s “List”, for one such example of an unintended viral consequence.

Second, I generally do not recommend that you issue any type of takedown notice unless you are confident that you have a colorable legal justification for doing so. Individuals that were willing to post the original content in a negative light are quite likely to post your takedown notice as well, compounding the problem. More importantly, there is little chance that the content will be removed as a result of the takedown notice.

Finally, I strongly recommend that EVERYONE that maintains any type of Internet presence register and develop the .com version of their full name. For example, if your name is John Smith, I would recommend that you register JohnSmith.com. If your name is similarly common to John Smith, you may want to use your profession, location or middle initial or name. For example, AttorneyJohnSmith.com or JohnSmithWashingtonDC.com, or JohnMSmith.com.  Prominent individuals at start up companies or firms with strong figure heads may also want to do the same.  

Once the name is registered, be sure to occasionally post newsworthy information about yourself using simple blogging software such as WordPress or Joomla. In most cases, you website will rise very quickly to the top of the search results when people search for you by name and will give you the opportunity to have the opportunity to share “your side of the story” as to any criticism you receive for uncontrolled content or other issues that may arise.

Many people, particularly professionals such as doctors, lawyers, accountants and journalists, will receive some type of negative online attention, warranted or not, at some point in their lives. While an unfortunate reality, taking steps to maintain control of your content and being prepared to proactively respond to criticism makes good sense in both a personal and business context.

CyberLaw P.C. recently launched a new website, available at USCopyrightGroupDefense.Com, aimed at providing information about U.S. Copyright Group and its copyright infringement cases against numerous John Doe defendants. The site features general information about U.S. Copyright Group, including details about the parties, ISPs and works involved in many of its cases, most of which are filed in Washington, D.C. The site provides simple and straightforward information about U.S. Copyright Group cases, including possible defenses.

The site also advertises the availability of a low-cost individual phone consultation option for U.S. Copyright Group defendants. The phone consultation is always with a copyright attorney with defense experience against U.S. Copyright Group. The offer is designed to assist individual defendants, many of whom may not be entirely familiar with the legal process or copyright law, in understanding their individual case and evaluating options for best handling the matter in a cost-effective way.

I’m a bit late to discuss this, but I aim to give it appropriately detailed attention now. In Charter Communications, Inc. v. CK Ventures Inc. / Charterbusiness.com the Hon Neil Brown QC, a respected UDRP Panelist, cited my prior post on the potential applicability of laches as a defense to a UDRP complaint:

This panelist was part of a majority in Board of Trustees of the University of Arkansas v. FanMail.com, LLC, WIPO Case No. D2009-1139 that felt that there is scope for looking again at the assumption that laches has no part to play in UDRP proceedings, a decision that has been the subject of at least one commentary at “www.cyberlawonline.com” and which may stimulate some debate.

My article to which the Hon. Neil Brown specifically refers is entitled “A Potential New Defense Under UDRP.”

The Charterbusiness.com matter involved a case where the complainant had waited approximately seven years to file its complaint. While recognizing that laches “is not generally recognized under the Policy” Respondent, correctly in my view, raised a laches defense. The majority rejected the defense, citing decisions in The E.W. Scripps Company v. Sinologic Industries and Tom Cruise v. Network Operations Center / Alberta Hot Rods. Panelist Brown issued a separate opinion. Notably, he opined:

Without going into it in detail here, it may be time for a closer examination of [laches] and whether it is appropriate to exclude it as a defence in cases where the complainant has waited years before filing a complaint.

For better or for worse, a laches defense continues to be a topic of discussion in UDRP decisions. As a result, two questions arise. First, does such a defense make sense in a UDRP context? Second, what is a rational defense practitioner to do?

On the first issue, I am of the opinion that a laches defense, or some related “time-limit” protection, such as a statute of limitations, makes sense in a UDRP context. The present policy effectively allows a complainant to wait for an eternity before filing a case. While there is certainly some unfairness to a respondent in such situations, there is also the added potential problem of “spoliation” of evidence. Furthermore, the preclusion of a laches defense (or a related statute of limitations) has the effect of failing to motivate a mark holder to pursue the action in a timely manner. For example, an unscrupulous mark holder might take advantage of an unsuspecting domain owner by allowing development of the domain prior to the filing of a complaint and potential seizure of the name.

On the other hand, I certainly appreciate the counterarguments that the UDRP policy does not specifically provide for a laches defense or that the specific factual inquiries may be problematic in the context of an arbitration proceeding that is designed to favor efficiency.

In my view, however, the implementation of a laches defense would not be a terrible hindrance to the goals of an efficient arbitration proceeding. In many cases the inquiry could be almost as simple as calculating the time between the registration date of the domain name and the date the complaint was filed. Furthermore, arbitrators regularly decline to reach certain conclusions about, for example, potential trademark infringement or unrelated business disputes when the facts of the matter exceed the scope of the policy. In the end, I see little reason that a laches defense could not be considered in a UDRP context when the circumstances warrant.

The second issue, of particular interest to practitioners, requires us to consider the appropriate course of action when it comes to a UDRP defense. I’m of the opinion that when you or your client has a colorable laches defense, it is proper to raise it. While I appreciate that laches is “not generally recognized under the Policy,” it is also clear enough that the defense of laches is at least “in play.” UDRP respondents would be wise to use that status to their advantage when appropriate.

Recently introduced legislation entitled “The Main Street Fairness Act” seeks to require online retailers to collect sales tax for the benefit of states on most online purchases. Internet Retailer recently examined the bill in some detail. CyberLaw PC attorney Eric Menhart is quoted in the piece, entitled “Online sales tax proposed in Congress.” Eric was asked if the recently proposed legislation, introduced by Rep. Bill Delahunt (D, MA) had a decent chance of success: “You need a decent majority of states as members of the SST,” he says. “Until you have that, it will be very difficult to get enough Congressional attention and support for this legislation.”

Eric is the author Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue. Published in 2007 by the Journal of State Taxation, the article is an in-depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions. Eric also spoke on similar topics at the 2010 Internet Retailer Conference and Exhibition in Chicago, IL.

The recent UDRP decision concerning “razorbacks.com” caught my eye due to a relatively comprehensive panel discussion on the issue of laches (pronounced: ˈla-chəz) under the UDRP.

Laches in law is a defense that calls into question the complaining party’s good faith in bringing its complaint in a untimely manner. A defendant asserting laches argues that a plaintiff that delays in asserting its claims, to the detriment of the defendant, should not be entitled to recover on its claims.

In “razorbacks.com” the Panel noted that “a majority of the Panel (Messrs. Badgley and Brown) is prepared to acknowledge the possible applicability, in appropriate and limited circumstances, of laches in a case under the Policy.”

The Panel supported their decision in several ways. First, the Panel notes that Rule 15(a) of the UDRP provides that “a panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

The Panel also addressed previous decisions addressing and dismissing a laches defense under the Policy. First, the Panel addressed whether laches fell within the “‘catchall’ language of Rule 15(a) because, strictly speaking, it is a principle of equity and not law.” Panelists Badgley and Brown disagreed, noting that in many jurisdictions, the “sharp line between law and equity has been blurred if not effaced.” Panelists Badgley and Brown also found that concerns about intense factual inquiry in laches analysis “might be no more difficult than disposition of other questions that routinely come before UDRP panelists.”

In the end, the majority of the Panel did not decide the “case on the basis of a laches defense,” but whether “characterized as laches or not, the considerable delay on the part of Complainant in bringing the Complaint militates against its success in this proceeding.” The Panel went on to deny the relief sought by Complainant.

While the Panel chose their words carefully, the implication seems clear: UDRP respondents that have a colorable laches defense would be wise to raise it in their responses under the Policy. The Panel seems to be inviting laches defenses in the hopes that the issue will become more salient in the minds of other panelists. While there is no guarantee that future panelists will agree with the razorbacks.com Panel, this decision has unquestionably presented an open invitation for future laches defenses under the UDRP.

A recent decision by the District of Columbia Court of Appeals addressed whether a private right of action under the Telephone Consumer Protection Act (TCPA) required a separate act of enabling legislation. The Court found that private causes of action may be brought in the Washington D.C. Superior Court under the Act without the need for enabling legislation. CyberLaw PC attorney Eric Menhart was on the brief for the prevailing appellant. Read the full text of the opinion: Portuguese American Leadership Council of the United States, Inc. v. Investors’ Alert, Inc. No. 04-CV-1187 (D.C. 2008).

In its decision, the Court finds that the TCPA provides that a “person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State . . . an action based on a violation” of the Act. The trial court interpreted the “if otherwise permitted” language in the TCPA to mean that before a private right of action can be exercised, a state must “opt in” through enabling legislation that allows the lawsuits to proceed.

The opinion notes that the language “if otherwise permitted by the laws or rules of court of a state” in the TCPA appears to refer to the neutral general jurisdictional and procedural laws and rules governing each state’s court system. Second, the Court notes that rulings by the Federal Communications Commission support the view that no enabling legislation is necessary. Third, the D.C. Court of Appeals finds that a majority of state courts hold that enabling legislation is unnecessary to make the TCPA’s private action provision enforceable in state courts. Finally, the court refers to the legislative history of the TCPA to further support its ruling.

The ruling brings D.C. to the same result that all other reviewing states have reached: allowing a private right of action under the Telephone Consumer Protection Act.

Everyone wants great value when they spend money. The same is true when it comes to law firms and legal services.

Occasionally, clients have questions about hourly billing and want to know how to keep their costs as low as possible without sacrificing the quality professional services to which they are accustomed. This short article is intended to answer some of those questions and offers tips to clients to assist in keeping their costs as low as possible. Remember, this memo is intended to be general information. The retainer agreement with your attorney or law firm sets out the particular terms of your legal or business services agreement with your lawyer.

Hourly Billing

Lawyers and staff often bill by the amount of time spent working on your legal or business matters. This is called “hourly billing” or “timed billing.” The tasks for which attorneys and staff will bill on an hourly basis are included in your individual retainer agreement. Generally, attorneys and staff will bill at their prevailing hourly rate for any time that they spend working on your matter. The prevailing hourly rate for your matter is usually contained in your retainer agreement with your lawyer.

Usually, attorneys and staff bill their time in 1/10 of an hour increments which computes to billing in six minute increments. Alternatively, your lawyer may bill his or her time in 1/4 of an hour increments, which computes to 15 minute increments. By billing in such small increments, attorneys are able to keep costs as low as possible for the client, while still using an accurate and readable record keeping system.

Hourly billing is fair to both the attorney and the client because the attorney only bills the client for the actual time assisting the client and the client is not billed for more than the reasonable amount of time spent by the attorney or staff member. Every court and bar association in the United States approves of hourly billing as a fair way to record the value of an attorney or staff person’s services for most matters.

Clients, especially clients that are not used to working with an attorney or law firm, occasionally express concern about hourly billing, especially when the client is used to receiving a tangible object, such as a piece of furniture, a new computer, or a new pair of shoes when spending money.

It is important to remember that attorneys and support staff do provide a great deal of value by virtue of performing work necessary to assist you with your legal or business problem. Attorneys are licensed professionals because they spend substantial time learning about the law, maintaining professional integrity and earning experience that can help you achieve the best possible result for your legal or business matter. While you will occasionally receive tangible goods as a result of your attorney’s work, such as a contract, legal pleading, or memorandum, it is also important to understand that advice provided over the phone, via e-mail or in a client meeting is also valuable use of the attorney’s time.

Because an attorney only has his or her time and expertise to “sell,” the attorney must bill for time spent on a matter, even when it may only be a short period of time spent on the matter. This is because any time spent on your matter could have been spent earning fees helping another client or other valuable use of the attorney’s time.

Attorneys are professionally obligated to accurately report their fees and time spent to the client. Attorneys will only bill you for the reasonable time spent on your matter.

Keeping Client Costs Low

Attorneys are always willing to assist their clients in a diligent and professional manner. However, clients can make changes in their behavior that will help to keep their costs low. Here are some general tips for keeping your hourly billing invoices as low as reasonably possible:

Consolidate Questions: Many clients will call their attorney anytime a question comes up. While most attorneys are more than happy to take your calls as their schedules allow, many “quick questions” via phone, e-mail, or personal visit can lead to higher costs for the client, because the attorney needs to divert her attention from one matter to another. Instead, consider writing down any non-emergency questions and call when you have several questions at once. This will allow the attorney to focus on your matter and likely answer the questions more efficiently than if the questions were asked via several separate phone calls or visits.

Communicate via E-Mail: E-mail has several advantages over phone or letters. First, e-mail is easier for the attorney to file and record, which assists the attorney in efficiently answering your present and future questions. Second, the attorney can be sure to have the answer by the time he or she responds, compared to a phone call where the client may catch the attorney when the client’s file is not immediately available to the attorney. Like telephone calls, try to save multiple questions and put them all into one e-mail, so your attorney can answer all your questions at once.

Respond to Questions and Inquiries in a Timely Manner: Your attorney will likely have questions for you throughout his or her work on your legal matter. Just as your attorneys will do for you, it is important that you respond to any requests as quickly as possible. Forcing a lawyer to make several attempts to get in touch with a client increases costs.

Review Materials from Your Attorney Carefully: Your attorney will typically provide copies of the important documents in your matter, such as your retainer agreement, your invoices, and other important documents such as pleadings or contracts. Reviewing your copies carefully costs you nothing and can often assist you in answering your questions without having to contact your attorney.

Remember that you are always free to contact your attorney, whether you have one question or many, and he or she will respond within a reasonable amount of time.

Conclusion

While costs can be controlled to some extent with the tips above, remember that your attorney’s primary interest and duty is in protecting your legal interests. He or she must take all the procedural steps necessary to fully represent you. Implementing the practices recommended in this article allows a client to reduce the costs within his or her control, but you should always be wary of “going too far” and restricting an attorney’s ability to fully represent your legal interests.

CyberLaw P.C. attorney Eric Menhart was recently quoted in a Forbes.com article entitled “Web Sales Tax Looms.” The article discusses the potential for additional sales taxes on online transactions, particularly in light of dwindling state budgets.

Menhart is the author of the article “Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue,” published in 2007 by the Journal of State Taxation, which was an in depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions.

In a move that should surprise no one, Google and Yahoo have “officially” abandoned their proposed Internet advertising partnership.

The proposal was laughable from the start, but the two firms took the public stance that the arrangement could somehow have been “pro-competition.” Antitrust regulators were having none of it. As it became clear that the proposal would not simply slide past regulators Google and Yahoo have likely determined that the façade was no longer worth the trouble and legal fees.

As previously noted, it seems unlikely that either party truly thought this would pass antitrust muster. There were potential latent benefits to each, however, which may have led to the proposal’s birth.

While there was little question the proposal had little chance of success, one might wonder if the Obama victory just hours before the firms’ announcement played a role. There was little hope that an Obama administration would be more willing to allow the deal than the outgoing Bush administration. The election may have been the final proverbial straw on the back of this failed-from-the-start alliance.