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Website Compliance 2009

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The document discusses key policies and legal requirements for websites, including privacy policies, terms of service, and complying with the Digital Millennium Copyright Act (DMCA) safe harbor provisions. It outlines what information should be included in a privacy policy and the goals of protecting user data. It also describes how the DMCA safe harbor can protect websites from copyright infringement lawsuits if they follow procedures like designating an agent to receive takedown notices and removing infringing content expeditiously. Complying with these policies and laws helps websites address user rights and legal liabilities.

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Website Compliance: Privacy Policies, DMCA Safe Harbor, Terms of Service Fulwider Patton LLP February 18, 2009 Los Angeles, CA SPEAKER: Scott R. Hansen, Esq.
Website Compliance Privacy Policy Terms of Use Safe Harbor from Copyright Infringement: DMCA
Privacy Policy Policy under which: A company or organization operating a web site handles the personal information collected about visitors to the site
Privacy Policy Examples http:// www.google.com/intl/en/privacy.html https:// www.bankofamerica.com/privacy/Control.do?body = privacysecur_cnsmr
Why Privacy? Protects integrity of customer's personally-identifiable information Customer can control disclosure to 3rd parties Customer can avoid being bothered with advertisements when they don't want to be contacted
Personally Identifiable Information name age address phone number credit card number bank names account numbers health history job information etc.
Goals of Privacy Policy Reassure customers Explain: why you want information what you will do w/it Allay concerns with a clear, efficient Privacy Policy
Privacy Policy: Some Sections 1) What types of information you collect and how you use it 2) Why your server and online operationsare secure 3) Let customers opt out
Privacy Policy Sections (cont.) 4) Let customers view and edit their personal information 5) Policy changes 6) Who to contact w/questions
Privacy Policy Sections (cont.) 7) Write a privacy policy that people can understand
Rule of Thumb Keep it simple Be Straightforward Honest & Complete
Special Issues With Children Child Online Protection Act (COPA) Applies to Information Collected from Children Under 13 Many requirements (parental notification, etc.) Most Simply Dont Collect Info from Children under 13
Example Los Angeles Times "If you are under 13 years of age you may read this message board, but you may not participate."
Special Issue: Financial Institutions California Financial Information Privacy Act Customer can "opt-out" of information-sharing between affiliated institutions Customer must opt in for sharing of info w/nonaffiliated third parties Controversial, bouncing around the courts
Privacy Policy Enforcement Mrs. Fields Cookies matter FCC California Office of Privacy Protection
Privacy Policy Certification TRUSTe Outside company reviews your privacy policy Allows you to display the TRUSTe seal
Protection from Copyright Infringement Digital Milenium Copyright Act of 1998 (DMCA) Process to Avoid Copyright Infringement Lawsuits (Safe Harbor)
DMCA SAFE HARBOR Valuable forweb sites thatallow users to upload and display text, graphics or other content Steps to protect website owners from copyright infringement liability
US Copyright Law owner of a copyrighthas exclusive rights: right to reproduce the copyrighted work, right toprepare derivatives of the work rightto distribute copies of the work to the public right todisplay the work publicly.
CopyrightInfringement strict liability statute innocent infringementnota defense
Potential Copyright Infringement Liability Problem Users upload acopyrighted work without a license to do so Example User uploads drawing of Mickey Mouse. Violates copyright of Disney
What to Do? User Agreement Make User Agree Not to Infringe Copyrights Make User Agree to Indemnify Website Problem Doesnt Shield Website Owner
What to Do? (cont.) Monitor all uploads Delete infringing material before the material is displayed to the public Problem: Too much time & expense
Solution: DMCA Safe Harbor Digital Millennium Copyright Act (DMCA) 17 U.S.C. 則512
DMCA Safe Harbor (cont.) Simplest&Cheapest Approach Comply with requirements of DMCA; and Take appropriate action after receiving notice of copyright infringement Will not be liable for money damages for users' uploaded content
DMCA Title 17, US Code,則 512(c)(1): "a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider."
DMCA Service Provider A service provider is "a provider of online services or network access, or the operator of facilities therefor" and an "entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." 17 U.S.C. 則 512(k)(1)
DMCA Does Not Apply!!!! Service provider knows that the material is infringing; Is aware of facts or circumstances from which infringing activity is apparent; or Does not quickly remove or disable access to the material upon obtaining knowledge or awareness of the infringing material.
DMCA Does Not Apply!!! (cont.) service provider has right and ability to control the infringing activity and receives financial benefit directly attributable to the infringing activity, then service provider will not be protected by Section 512 of the Digital Millennium Copyright Act.
Other DMCA Requirements Must have agent for service of copyright infringement claim Must post contact info for agent of service Must register agent contact information with the Copyright Office Go to Copyright Office website Fill out a form Send in money
Take Down Procedure Take down copyrighted material expeditiously
Protection Against Claims by Users Service provider will "not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing." 17 U.S.C. 則 512(g)(1)
Terms of Service
Terms of Service Rules by which one must agree to abide by in order to use aservice. Such terms may be legally binding Examples: eBayandPayPal high level ofcommunitytrust transactions involvingmoney
Terms of Use Generally Covers Acceptable user behavior online Company's marketing policies DMCA Notification of Take Down policy and Agent Copyright notices
Penalties for Violation of ToS Banish From Site Report to Authorities Civil Liability Criminal Penalties
Resources Privacy Policies TRUSTe Privacy Policy Certification www.TRUSTe.org California Office of Privacy Protection http:// www.oispp.ca.gov/consumer_privacy/online.asp Center for Democracy and Technology, CDT's Guide to Online Privacy www.cdt.org /privacy/guide/ Electronic Privacy Information Center, Online Privacy Tools www.epic.org/privacy/tools.html
Resources (cont.) DMCA Safe Harbor Wikipedia Explanation of DMCA at http:// en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Text of Section 512 (Safe Harbor) http://www4.law.cornell.edu/uscode/17/512.html Responding to Take Down Notice Fair Use Network (NYU School of Law) http:// fairusenetwork.org/reference/td.php
Resources (cont.) General Internet Law See Books by Prof. Michael D. Scott, Southwestern University School of Law INTERNET AND TECHNOLOGY LAW DESK REFERENCE 8th ed. (Aspen Publishers, 2007) SCOTT ON INFORMATION TECHNOLOGY LAW , 3rd ed. (Aspen Publishers, 2006)

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Website Compliance 2009

  • 1. Website Compliance: Privacy Policies, DMCA Safe Harbor, Terms of Service Fulwider Patton LLP February 18, 2009 Los Angeles, CA SPEAKER: Scott R. Hansen, Esq.
  • 2. Website Compliance Privacy Policy Terms of Use Safe Harbor from Copyright Infringement: DMCA
  • 3. Privacy Policy Policy under which: A company or organization operating a web site handles the personal information collected about visitors to the site
  • 4. Privacy Policy Examples http:// www.google.com/intl/en/privacy.html https:// www.bankofamerica.com/privacy/Control.do?body = privacysecur_cnsmr
  • 5. Why Privacy? Protects integrity of customer's personally-identifiable information Customer can control disclosure to 3rd parties Customer can avoid being bothered with advertisements when they don't want to be contacted
  • 6. Personally Identifiable Information name age address phone number credit card number bank names account numbers health history job information etc.
  • 7. Goals of Privacy Policy Reassure customers Explain: why you want information what you will do w/it Allay concerns with a clear, efficient Privacy Policy
  • 8. Privacy Policy: Some Sections 1) What types of information you collect and how you use it 2) Why your server and online operationsare secure 3) Let customers opt out
  • 9. Privacy Policy Sections (cont.) 4) Let customers view and edit their personal information 5) Policy changes 6) Who to contact w/questions
  • 10. Privacy Policy Sections (cont.) 7) Write a privacy policy that people can understand
  • 11. Rule of Thumb Keep it simple Be Straightforward Honest & Complete
  • 12. Special Issues With Children Child Online Protection Act (COPA) Applies to Information Collected from Children Under 13 Many requirements (parental notification, etc.) Most Simply Dont Collect Info from Children under 13
  • 13. Example Los Angeles Times "If you are under 13 years of age you may read this message board, but you may not participate."
  • 14. Special Issue: Financial Institutions California Financial Information Privacy Act Customer can "opt-out" of information-sharing between affiliated institutions Customer must opt in for sharing of info w/nonaffiliated third parties Controversial, bouncing around the courts
  • 15. Privacy Policy Enforcement Mrs. Fields Cookies matter FCC California Office of Privacy Protection
  • 16. Privacy Policy Certification TRUSTe Outside company reviews your privacy policy Allows you to display the TRUSTe seal
  • 17. Protection from Copyright Infringement Digital Milenium Copyright Act of 1998 (DMCA) Process to Avoid Copyright Infringement Lawsuits (Safe Harbor)
  • 18. DMCA SAFE HARBOR Valuable forweb sites thatallow users to upload and display text, graphics or other content Steps to protect website owners from copyright infringement liability
  • 19. US Copyright Law owner of a copyrighthas exclusive rights: right to reproduce the copyrighted work, right toprepare derivatives of the work rightto distribute copies of the work to the public right todisplay the work publicly.
  • 20. CopyrightInfringement strict liability statute innocent infringementnota defense
  • 21. Potential Copyright Infringement Liability Problem Users upload acopyrighted work without a license to do so Example User uploads drawing of Mickey Mouse. Violates copyright of Disney
  • 22. What to Do? User Agreement Make User Agree Not to Infringe Copyrights Make User Agree to Indemnify Website Problem Doesnt Shield Website Owner
  • 23. What to Do? (cont.) Monitor all uploads Delete infringing material before the material is displayed to the public Problem: Too much time & expense
  • 24. Solution: DMCA Safe Harbor Digital Millennium Copyright Act (DMCA) 17 U.S.C. 則512
  • 25. DMCA Safe Harbor (cont.) Simplest&Cheapest Approach Comply with requirements of DMCA; and Take appropriate action after receiving notice of copyright infringement Will not be liable for money damages for users' uploaded content
  • 26. DMCA Title 17, US Code,則 512(c)(1): "a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider."
  • 27. DMCA Service Provider A service provider is "a provider of online services or network access, or the operator of facilities therefor" and an "entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." 17 U.S.C. 則 512(k)(1)
  • 28. DMCA Does Not Apply!!!! Service provider knows that the material is infringing; Is aware of facts or circumstances from which infringing activity is apparent; or Does not quickly remove or disable access to the material upon obtaining knowledge or awareness of the infringing material.
  • 29. DMCA Does Not Apply!!! (cont.) service provider has right and ability to control the infringing activity and receives financial benefit directly attributable to the infringing activity, then service provider will not be protected by Section 512 of the Digital Millennium Copyright Act.
  • 30. Other DMCA Requirements Must have agent for service of copyright infringement claim Must post contact info for agent of service Must register agent contact information with the Copyright Office Go to Copyright Office website Fill out a form Send in money
  • 31. Take Down Procedure Take down copyrighted material expeditiously
  • 32. Protection Against Claims by Users Service provider will "not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing." 17 U.S.C. 則 512(g)(1)
  • 34. Terms of Service Rules by which one must agree to abide by in order to use aservice. Such terms may be legally binding Examples: eBayandPayPal high level ofcommunitytrust transactions involvingmoney
  • 35. Terms of Use Generally Covers Acceptable user behavior online Company's marketing policies DMCA Notification of Take Down policy and Agent Copyright notices
  • 36. Penalties for Violation of ToS Banish From Site Report to Authorities Civil Liability Criminal Penalties
  • 37. Resources Privacy Policies TRUSTe Privacy Policy Certification www.TRUSTe.org California Office of Privacy Protection http:// www.oispp.ca.gov/consumer_privacy/online.asp Center for Democracy and Technology, CDT's Guide to Online Privacy www.cdt.org /privacy/guide/ Electronic Privacy Information Center, Online Privacy Tools www.epic.org/privacy/tools.html
  • 38. Resources (cont.) DMCA Safe Harbor Wikipedia Explanation of DMCA at http:// en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Text of Section 512 (Safe Harbor) http://www4.law.cornell.edu/uscode/17/512.html Responding to Take Down Notice Fair Use Network (NYU School of Law) http:// fairusenetwork.org/reference/td.php
  • 39. Resources (cont.) General Internet Law See Books by Prof. Michael D. Scott, Southwestern University School of Law INTERNET AND TECHNOLOGY LAW DESK REFERENCE 8th ed. (Aspen Publishers, 2007) SCOTT ON INFORMATION TECHNOLOGY LAW , 3rd ed. (Aspen Publishers, 2006)