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Top 10 Cyberlaw Issues |
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1 Copyright This doctrine protects expressions that are manifested in a fixed and tangible medium. In the
United States it is controlled predominantly by federal law (via the 1976 Copyright Act and the U.S. Constitution)
and internationally (via the Berne Convention). The author acquires a set of exclusive enforceable rights including:
1) the right to make copies; 2) the right to distribute; 3) the right to make derivative works; and 4) the right to
public performance. |
2 Trademark The essence of a trademark is that it serves to identify the source or origin of a product or service. It is distinctively “commerce related” in the sense that the identification function works on behalf of existing/potential consumers. The principal function of a trademark therefore is to prevent marketplace confusion or conversely to enhance marketplace clarity. Marks are almost always used as part of online branding strategies and therefore also serve an important More» |
3 Domain Disputes Domain disputes are often related to trademark infringement issues, either via the illegal use in
metatags or advertising, or in similarly confusing ways, intentional or not. However, domain disputes can, and often
do, arise in different contexts completely unrelated to trademark doctrine. For example, because of their low cost,
many domain names are bought by individuals (as individuals) and subsequently used by organizations. When business
relationships sour, the issue of who “owns” the domain name (i.e. who is entitled to use the license) can be
problematic, and costly. The owner can readily redirect traffic to a competing site or to nowhere at all. |
4 Contracts While it might not be obvious that contracts are ubiquitous in cyberspace, a close inspection tells a different story. As a general rule, whenever you download software there is contract/license agreement in play. Whenever you signup with a hosting provider or a blogging platform, a contract is in play. If you sign an agreement with a consulting company to develop your website, a contract is in play. If you sign an affiliate marketing agreement, a contract is in play. In short, contracts are everywhere in cyberspace. They are as foundational to an online business as they are to business in general. More» |
5 Patents Patents encompass a set of exclusive rights, granted by a sovereign for a fixed period of time,
in exchange for a rigorous and detailed disclosure. A patent is granted to an inventor who invents or discovers any
new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement
thereof. In general (i.e. both nationally and internationally) an invention, in order to qualify as a patent, must
be: (1) new, (2) useful, and (3) non-obvious. |
6 Privacy There is probably no “hotter” cyberlaw issue today than privacy. Consumers often ask, “What are
all those e-commerce sites doing with our data?” Businesses need to be aware of the various statutes and regulations
that govern the collection and dissemination of personal data. A well drafted website privacy policy (and
enforcement of same) is imperative for all online businesses. In should go without saying that whatever information
is collected must also be protected. Negligence with respect to how private information is secured may lead to legal
liability, not to mention the loss of business and embarrassment in the marketplace. |
7 Employment There are a number of employment related contracts that have cyberlaw implications including: 1)
basic employment contracts, 2) non-compete agreements and 3) non-disclosure agreements. For example, due to the fact
that business method patents, post the State Street decision, have once again become quite popular, it is imperative
that the assignment of patent rights to the employer be requested not only of engineers, but also perhaps of all
high level executives (e.g. the director of marketing). It is also important that this assignment be done upfront
(at the time of employment) as opposed to a later point in time when contract doctrinal issues of consideration may
prove troublesome. |
8 Defamation The United States Supreme Court (USSC) transformed the common law of libel via a series of cases that essentially provided a first amendment overlay to the doctrine. Under the common law of libel a plaintiff was required to show the following four elements: (1) defamatory statement; (2) identification—“of and concerning the plaintiff;” (3) a publication of the statement; and (4) damages, but only for slander. Defamation has its roots in two common law torts: slander and libel. Slander is a harmful statement conveyed in a transitory form (e.g. an oral statement). Libel is a harmful statement conveyed in some fixed medium (e.g. a newspaper, magazine, blog, etc.). From the point of view of cyberlaw we are almost exclusively concerned with defamation that is libelous. More» |
9 Data Retention While the revolution in electronic record keeping has no doubt led to increases in productivity (i.e. at least some economic data is starting to confirm this long held belief), it has also created its own set of complexities. If was far easier in the old paper universe to have a document disposal plan, since the storage of paper was far too costly and visible an issue to go unnoticed. However, in today’s universe this problem is easily swept under “electronic rug”—only to become painfully visible once e-discovery commences in a pending lawsuit. By then it is clearly too late—all documents that are available and potentially relevant will likely be requested by the other side, going as far back in time as a judge will allow. More» |
10 Trade Secrets Historically trade secret law has been a creature of state law. There was no federal statute regarding trade secrets until 1996 (i.e. the Economic Espionage Act). However, both the Uniform Trade Secrets Act (UTSA) and Section 757 of The Restatement of Torts have significantly influenced trade secret law. The UTSA is a model law drafted by the National Conference of Commissioners on Uniform State Laws. It is an attempt to better define the rights and remedies available via the common law. It has been adopted by 45 states, the District of Columbia and the U.S. Virgin Islands (sans Massachusetts, New Jersey, New York, North Carolina and Texas). More» |
