Maine: The Next State To Secure Residents’ Online Privacy?

Maine online privacy lawOnline privacy is becoming a major state’s rights issue. Illinois lawmakers are well on their way to passing a digital data privacy law, and now it looks like Maine is following in The Prairie State’s footsteps.

Maine’s New Online Privacy Bill

A bipartisan proposal marshaled by state Sen. Shenna Bellows of Manchester, L.D. 1610 — a.k.a. “An Act To Protect Privacy of Online Customer Personal Information” — would require Internet Service Providers to secure consent before releasing users’ browsing data.

“This bill prohibits a provider of broadband Internet access service from using, disclosing, selling or permitting access to customer personal information unless the customer expressly consents to that use, disclosure, sale or access.”

Not only does the bill force providers to secure consent before sharing user data, but it also forbids discount for consent programs.

 “Absolutely Appalling”

In March, the United States Congress voted to trash incoming FCC rules prohibiting ISPs and websites from selling user data. Since then, digital privacy has quickly become a “state’s rights” issue. In fact, many jurisdictions are in the process of drafting their own versions of the now-defunct FCC rules.

Keen to avoid more administrative requirements, most ISPs breathed a sigh of relief when Congress killed the browsing privacy rules. Many residents, however, disagreed. In defense of constituents, state Sen. Bellows chastised federal lawmakers, lamenting that the “reckless vote” put “Mainers’ privacy up for sale.” In support of her bill, Bellows remonstrated:

“Most people are rightfully appalled by the idea that their Internet service provider could be watching their every move online and selling their information to the highest bidder. We owe it to our constituents to protect their privacy.”

Maine has a long way to go before L.D. 1610 becomes law — if it even makes it. But the first step on the ratification journey was a public hearing on May 24th.

Connect With An Internet Law Attorney

Kelly / Warner is a boutique Internet law firm that helps clients with various online privacy issues. To learn more about the practice, please start at the “About Us” section of the website.

 

Technology Law News: Common Carrier Loophole Could Benefit Online Business Behemoths

technology law common carrier loopholeThe FTC may score a win, courtesy of the Ninth Circuit. The bench opted to revisit the FTC’s case against AT&T for allegedly throttling customer data. Technology law circles are buzzing about this case because if the judges rule in favor of AT&T, the decision will create an  “oversight loophole.”

FTC v. AT&T: The Telecom Fight Over Governmental Oversight

This case began in 2014 when the FTC sued AT&T, under Section 5 of the FTC Act, over improper disclosures about data throttling practices.  AT&T’s response?  You aren’t the boss of us.

Argument: The FTC Shouldn’t Exercise Oversight of Common Carriers

AT&T argued it was exempt from liability because a portion of the business fell under the status of common carrier. As a result, company lawyers reasoned, the entire organization should be exempt from FTC oversight when it comes to disclosure issues.

The senior vice president of Public Knowledge, Harold Feld said, “[The decision] was huge because it was totally unexpected.  Nobody’s ever ruled that way before.”

Why FTC v. AT&T Is A Big Deal Internet Technology Law Case

Since 1914, the FTC has been “working to protect consumers by preventing anticompetitive, deceptive, and unfair business practices, enhancing informed consumer choice and public understanding of the competitive process, and accomplishing this without unduly burdening legitimate business activity.”

For years, the FTC’s gaze has lingered on Internet-related issues.  But if this case falls in favor of AT&T, the commission could, effectively, lose some proverbial power.  How will larger online companies avoid FTC oversight? They’ll buy a small cellphone company, and voila — regulatory-avoidance mission accomplished.

What The Future Holds If AT&T Wins This Internet Law Case

For the time being, the “common carrier loophole” is plugged while the Ninth Circuit, once again, ponders the case. However, if the court rules in favor of the telecom, it will uncork.

Interestingly, on May 18th, the FTC voted 2-1 to begin eliminating net neutrality rules. The change altered the classification of ISPs as common carriers under the Communications Act.  If officials nix the common carrier classification, AT&T will have to change their defense strategy in its case against the FTC.

Kelly / Warner is a leading Internet law firm that works with tech corporations and Internet Service Providers across the United States, Canada, United Kingdom, Asia, and Europe.

Internet Law Issue: Does Using Moderators Nullify Certain DMCA Immunity Protections?

online moderatorsOnline platforms that feature user-generated content filtered by moderators may have to find other ways to police content if a paparazzo emerges victorious in a current Internet law case.

Do Moderators Disqualify Websites From DMCA Shields?

The suit at the center is Mavrix Photographs, LLC v. LiveJournal, Inc. A Ninth Circuit Court of Appeals decision found that the Digital Millennium Copyright Act’s sanctuary clause, which absolves sites of “infringement of copyright by reason of the storage at the direction of a user,” may not provide legal shelter for moderated websites in certain IP cases.

Mavrix Photographs — “a celebrity photography company specializing in candid photographs of celebrities in tropical locations” — alleged that LiveJournal — a moderated online journal — violated Mavrix’s copyrights.

Mavrix purports that a community within LiveJournal called “Oh No They Didn’t!” violated the DMCA by posting twenty Mavrix copyrighted images between 2010 and 2014.  ONTD’s content is created and submitted by users, but moderators retain final post privileges; first, a team of volunteer moderators approves posts; then, LiveJournal employees rubberstamp the volunteer-filtered posts.

Appeal’s Court Overturns Decision: Look At Procedures, Not Creators

The Ninth Circuit reversed the lower court’s decision.  The appeal’s bench found that the district court inappropriately focused on who created and approved the material rather than LiveJournal’s content publishing procedures.  The Ninth Circuit also found that factual questions, regarding whether or not LiveJournal moderators acted as agents of LiveJournal, still needed to be addressed.

If the court decrees that LiveJoural’s moderators are agents of the site, LiveJournal could be held liable for copyright infringement over user posts.  The court needs to determine “whether Mavrix’s photographs were indeed posted at the direction of the users in light of the moderators’ role in screening and posting the photographs.”  Moreover, safe harbor stipulations won’t apply if the ONTD moderators are found to be doing more than “merely accessibility-enhancing activities.”

If this case turns out for Mavrix, it could profoundly affect site operations for the majority of semi-moderated platforms.  In fact, many websites may choose to abandon moderation altogether, to avoid potential liabilities.

Contact An Internet Law Attorney

Kelly / Warner is an Internet law firm that works with tech companies, online businesses, and startup entrepreneurs. Our team handles everything from incorporation to IP registration to complex litigation and more. We invite you to learn more about our Internet business legal practice.

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Amazon Review Loophole & Feedback Blackmail: E-commerce

Amazon review loophole

Is There A Marketing Loophole When It Comes To Up-Voting Amazon Reviews?

The ever-evolving nature of online business is a source of both excitement and exasperation for entrepreneurs.  Boundaries are repeatedly being pushed, often pitting pioneers against the proverbial “powers that be.”

Take, for example, the semi-recent Amazon review changes. A few months back, a tornado barreled through the e-commerce industry: Amazon had banned incentivized reviews. No longer could sellers offer free products in exchange for honest feedback. Ostensibly, the move hurt companies relying on the technique for product launches.

But instead of throwing in the towel, marketers did what they do best…adjusted. Many started offering “list optimization” and “list maintenance” services. How did the new system work? Promotions experts enlisted users to up-vote helpful reviews; instead of writing posts, operatives boosted positive reviews.

It was a genius approach; because if you look closely at Amazon’s interface, a question sits at the bottom of each review: “Was this review helpful to you?” Nowhere does it indicate that review-rating is dependent on product purchase. After all, (and theoretically), reviews are tools for potential buyers — and potential buyers find some reviews more helpful than others during the decision making process.

Regardless, Amazon insists its algorithms unearth these types of up-vote networks. “We have machine-learned processes to detect inauthentic customer insights including the manipulation of helpful votes and will ban vendors, sellers, and reviewers who are found to be out of compliance with our policies,” explained a spokesperson for the company.

Marketing Blackmail: Sabotaging A Listing To Drum Up Business?

A recent New York Post article did a story involving an Internet law issue that we’re also starting to hear rumbles about.

Here’s an excerpt.

The scenarios can get nastier still, according to one merchant who markets skin-care products on Amazon. Asking not be identified for fear of retribution from these vendors, the merchant said his product was a best-seller on Amazon in mid-April, when shoppers were scooping up 450 units a day.

Earlier this month, however, he noticed that all of the negative reviews — about eight of them — were on the top of his page, though the vast majority of his reviews were positive.

The merchant reached out to a “list optimization” vendor who’d previously sent him an e-mail advertising its services. The vendor, whose company the merchant declined to identify, offered to “clean up” his problem for $350 or to provide “listing maintenance” for $1,000 a month.

The skin-care merchant declined the services. The next morning the number of negative votes climbed to 160. On the following day it was 260.

The vendor called him back and suggested that one of the merchant’s competitors — whose positive review votes had, maybe not coincidentally, risen by a lot — was responsible for the negative votes.

The vendor reiterated his offer, upping the cost to $2,000 because the problem had grown exponentially. The vendor also offered to “screw the competitor’s site” according to the merchant.

Blackmailing businesses, via fake review manipulation, undermines “truth-in-advertising” standards and various Federal Trade Commission “unfair and deceptive” marketing rules. If someone is unfairly attacking your website or product listing, in this manner, let’s talk. Our team has helped hundreds of businesses with online review issues of this nature.

Want to read more about online feedback legalities? Head over to the consumer review law section.

Illinois On The Brink Of Getting A Digital Data Privacy Law

Illinois online privacy lawFederal lawmakers clobbered the FCC’s digital data disclosure law, but Illinois representatives are nursing a version of it back to health. A digital data privacy measure, if ratified, the Right to Know Act would require most websites and social media platforms to disclose what user data they collect and with whom it’s shared.

Illinois’ Right to Know Act: A Digital Data Privacy Law

Sponsored by State Senator Michael Hastings, the Right to Know Act requires Internet service providers and websites to provide either a working email address or toll-free number that people can use to request information about collected personal data and third parties that received said data.

So far, a version of the bill has passed in the House, and the state’s Senate recently voted 32-21 in favor. It now heads back to a House committee, where it’s expected to be approved.

Federal Data Collection Law Is Dead, But States Are Picking Up The Slack

A Federal Communication Commission digital privacy law, which would have required ISPs to disclose the nature and destination of collected consumer data, was scheduled to go into effect in the coming months.  But in March, the U.S. Congress killed the measure.

States, however, seem to be filling the legislative gap.

The National Conference of State Legislatures revealed that statutes similar to the one in Illinois are being drafted in Alaska and Rhode Island. Plus, about twelve other states are in the early stages of considering some form of online privacy legislation.

Not Everyone Is Thrilled With Illinois Right to Know Act

Online businesses aren’t fans of the act. Opponents argue that a dearth of actual consumer value, coupled with costly administrative excess, make this bill a bad one.

Sen. Chris Nybo explained, “Every technology company [I have] spoken to, from Microsoft to Uber, Lyft…is opposed to this bill.” Nybo also lamented, “I think it sends the wrong message.”

Another subset of politicians is also opposed to the law. Not necessarily because of reasons above, but because they think online privacy issues should be handled on a federal level.

“The federal government has a system of rules and regulations to handle internet traffic,” explained Jason Barickman, a state Senator. “I think we, as one of 50 states, (need) to let them handle those issues and not create additional burdens for our many people and businesses here in Illinois,” he concluded.

Undeterred by detractors, Sen. Hastings, the bill’s sponsor, enthused “I think this is a step forward for Illinois in terms of data privacy. It gives people the right to know what information (Internet companies are) selling to a third party.”

Questions For An Internet Lawyer?

Kelly / Warner works with online businesses and tech entrepreneurs. To learn more about our practice, head here. If you’re ready to speak with an online business attorney, get in touch.

DMCA Safe Harbor Registration Deadline Is Fast Approaching

picture of letters DMCA on deck to accompany post about DMCA digital safe harbor registration

Do you want to be held responsible for other people’s intellectual property missteps? No? Then register for the DMCA Safe Harbor program at dmca.copyright.gov by December 31, 2016. People who previously registered by mail must re-register using the online system. Need help? Contact Kelly / Warner.

Mandatory Online Registration For DMCA Safe Harbor Program

The U.S. Copyright Office changed the DMCA agent registration process. Previously, online service providers could mail in their registration requirements. Not anymore.

By December 31, 2016, all parties wishing to maintain their safe harbor status must register using the online system at dmca.copyright.gov.

The DMCA Safe Harbor Provision

The Digital Millennium Copyright Act (DMCA) governs online intellectual property in the United States. Section 512(c), commonly known as the “Safe Harbor” program, outlines how ISPs can protect themselves from third-party intellectual property liability.

To put it another way, the DMCA Safe Harbor program is why authorities don’t punish Google when *John Doe* posts a pirated film on YouTube.

DMCA Designated Agents

The DMCA Safe Harbor program isn’t an automatic protection bestowed on all websites. To qualify, every three years, ISPs must formally designate and register an agent — typically an attorney — who acts as the receiver for all site-specific intellectual property notifications and takedown requests.

What happens if you don’t register a DMCA agent? Authorities could hold you responsible for users’ intellectual property foibles. So, if you’re an OSP, and you don’t want to pay the price for users’ actions, register for the DMCA Safe Harbor program.

Social Media Marketing Maven: Chrissy Teigen

picture of social media icons on phone to accompany post about Chrissy Teigen's social media marketing prowessWhen she’s not lip sync battling, Chrissy Teigen apparently ponders social media marketing mysteries! Recently, the brand influencer Twitter-shared some musings about FTC advertising compliance.

We learned:

  • Chrissy Teigen is serious about her online marketing work and keeps up-to-date with FTC regulations. We say, “Good on her!” Every influencer should familiarize themselves with Federal Trade Commission compliance standards.
  • Chrissy collaborates with brands to draft promotional tweets.
  • Teigen, (like many marketers), doesn’t quite understand why some tea and smoothie social media influencers seem allergic to #ad or #spon promotional hashtags, which are, technically, required.

The FTC’s social media marketing rules

  • Promotional Hashtags: Influencers, marketers, and brands are expected to use #ad, #spon, #sponsor, or #paid in promotional tweets, ‘grams, and other social media posts.
  • Disclose Material Relationships: Read the Dot Com Disclosures to determine the necessary promotional declarations for your product. Don’t want to wade through an FTC regulatory document? Click here for the most important points.
  • Be Mindful of Promotional Language: Don’t lie about product benefits; don’t fib about ingredients; don’t rely on questionable scientific studies to support claims. The FTC has — and will continue to — sue over these types of infractions.

Twitter, Facebook, and Instagram promotions are ubiquitous, but online marketing regulations are still nascent. Please don’t misunderstand the assertion. Regulations DO exist; brands risk sizable fines for shirking guidelines. And even though the FTC has earned a reputation for, shall we say, mutable justice… consistency has, over the past year, quietly snuck its way into the investigation equation.

Want to evade the FTC’s prying eyes?  Clean up your marketing compliance house.

Click here to read about other digital promotional legalities. Head this way to speak with someone who can help solve your social media marketing challenges.

Ebook Business Update: Discount-For-Review Exemptions and Pricing Wars

Graphics of books on a laptop screen to accompany a blog post about the ebook business

Ebook Business Legal News: Authors Can Still Give Out Free Advanced Copies Of Books, In Exchange For Honest Reviews

Did you hear about the changes in Amazon’s online review policy? Basically, sellers can no longer offer free or discounted products in exchange for fair and honest reviews.

Alas, dear writers, there is an exception: ebooks!

Since Gutenberg first pimped his press to the public, authors have given out free advanced copies in exchange for reviews; the practice is the publishing industry’s primary marketing artery. (Think about it: Who would’ve plunked down dimes for the then unknown Thoreau’s Walden, if it didn’t include a forward by his bud, the popular Ralph Emerson?)

How can sellers leverage the ebook exemption in Amazon’s discount-for-review policy? It depends on the product. For example, service providers reliably attract new clients by developing niche ebooks. Ask yourself: Can you do the same for your product?

Ebook Business Performance News: Digital v. Paper Pricing Wars Lumber On

For years, paper publishers and Amazon have unwittingly found themselves in a polygamous marriage. Sure, certain benefits keep them happily bound (Amazon is the country’s largest book distributor), but the relationship is also plagued with heaps of jealousy, resentment, suspicion, and, of course, power struggling.

The Brinkmanship Of Book Pricing

It all started when Amazon successfully hooked readers on ebooks, and the paper-book market took the bullet; bookstores were lined up in front of a firing squad.

But traditionalists fought back. In an arguably injudicious move — which perhaps revealed the old-industry-guard’s detrimental and intractable shortsightedness — the paper publishers sued for the right to set ebook pricing…and won.

But it was a Pyrrhic Victory, of sorts.

Why?

Because Amazon buys books at wholesale and still controls paperback / hardback pricing on the site. So, when the publishers hiked ebook costs, Amazon started pushing paper books at a lower-than-retail cost. And now, according to a recent article in Tech Crunch, ebook sales are down 22.7% compared to 2015. (Ay, Dios libro! Can’t the publishers all just get along!?)

Nice To Meet You

Self-published authors regularly become entangled in intellectual property confrontations; plagiarism is also a big problem — as are writers who deploy phony defamatory reviews to disparage competitors.

We help authors overcome these obstacles. If you’re grappling with an online publishing business or legal problem, we’re here to help. Get in touch; we’ll chat and come up with solutions to your ebook business challenges.

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Cyberbullying Case: Fatal Harassment Leads To 30-Day Jail Sentence

cyberbullying case law jail

Cyberbullying Case Summary: Fatal NJ University Incident

In 2010, Rutgers University student Tyler Clementi tragically jumped to his death after learning his roommate, Dharun Ravi, secretly recorded footage of him kissing another man, and then posted it online.

The State of New Jersey used bias intimidation laws to prosecute Ravi (State of New Jersey vs. Dharun Ravi) in the seminal cyberbullying case. In 2012, a court convicted him on 15 counts. Ravi “was sentenced to 30 days in jail, 3 years probation, 300 hours of community service, a $10,000 fine, and counseling on cyberbullying and alternate lifestyles.”

Judge Ordered Retrial

In 2015, however, New Jersey’s Supreme Court put an end to the state’s bias intimidation law, declaring it unconstitutional. The legal dominoes fell, and in 2016, an appeals court ordered a new trial, since four of Ravi’s counts stemmed from an unconstitutional edict.

Despite the decision, judges in the cyberbullying case emphatically condemned Ravi’s actions and presented an emotional opprobrium:

“The social environment that transformed a private act of sexual intimacy into a grotesque voyeuristic spectacle must be unequivocally condemned in the strongest possible way. The fact that this occurred in a university dormitory, housing first-year college students, only exacerbates our collective sense of disbelief and disorientation.”

Interested in reading more cyberbullying case studies? Click here.

Online Gaming Threats: Chat Ultraviolence Leads To Jail

online gaming threats

Can you land in legal trouble over online gaming threats? Let’s talk about the issue for two minutes.

Can I Go To Jail Over Aggressive Smack Talk During Online Game play?

Law enforcement officials treat criminal threats like the Supreme Court treats the Constitution — seriously. Plus, FBI identity and tracking tools can smoke the average person from a digital foxhole fairly easily.

How much time could you catch, if caught? Bodily harm threats could fetch a five-year prison sentence; property damage, two years.

When Does Trash Talking Become An Actionable Threat?

The second someone implies, or outright threatens to abuse, rape, stalk, hit, or kill, the legal line has been crossed. Play it safe: keep your smack talk about the match.

Some people make good on their threats. If anybody starts polluting chats with creepy posts, pick up the phone and call your local precinct; they’ll hook you up with the nearest FBI contact, who will take the matter very seriously.

Unsolicited advice nugget: if you plan to go pro, there’s a worldwide audience to worry about. Past statements can — and often do — come back to haunt — especially in today’s digital thunder dome. Don’t let online gaming threats destroy your career.

Can you give me an example of someone who has been arrested for online gaming threats?

Authorities arrested a 28-year-old Heroes of the Storm player (who allegedly also runs a Facebook account called ‘tedbundyismygod1’) for littering the game’s chat — and his Facebook — with ultraviolence threats including:

“I will bomb the new york twin towers [sic]”

“You make me want to shoot up an elementary school;”

He also threatened to “rape and kill” children.

Other players reported the disturbing posts on July 7th; by July 12th, authorities had the alleged culprit in custody.

What should I do if someone threatens me, via chat, during a match?

The same rules apply to online gaming as they do airports: If you see something, say something!

Let’s be frank: unhinged people carry out threats. If somebody starts polluting chats with creepy posts, pick up the phone and call your local precinct; they’ll hook you up with the nearest FBI contact, who will take the matter very seriously.

Got An eSport Issue?

Need professional advice about online gaming threats or another eSport business issue? Internet law firm Kelly / Warner has a top-rated team dedicated to eSport legalities. Let’s talk.

The Legal Lowdown On Pokémon Go Lawsuits & Marketing Tactics

pokemon Go Lawsuits
Here Come The Pokémon Go Lawsuits (& Other Marketing Legalities to Consider)

The micropayment miracle, Pokémon Go (PoGo), currently holds the prize belt for “most popular game of all time,” and in short few months, it’s raked in over $210,000,000. Market experts expect revenues to hit $1.1 billion by year’s end, and savvy brick-and-mortar businesses are PoGo promoting — to huge success.

But, dear reader, don’t be lulled into submission! The Pokémon Go story is NOT all smiles and profits. [DUN, DUN, DUN!]

Oh yes, there’s the dark side of Pokémon Go. The side that’s spawned a PoGo disaster map; the side that’s raised get-off-my-lawn stakes to lawsuit level; the side that has people wondering, “Can I sue Pokémon or Nintendo for injuries sustained in the line of PoGo battling!?”

Is Pokémon Go ushering innocents down a dangerous personal injury path? And if so, can the game’s maker be held liable? Moreover, what legal aspects must be considered when promoting a business through PoGo?

Let’s examine this mobile gaming phenomenon, with legal scalpels.

Pokémon Go Lawsuits

Nintendo aims to “put smiles on people’s faces.” Yet, not every civilian is grinning over Pokémon Go. In fact, two households have definitely NOT caught the PoGo craze; instead…they’re filing Pokémon Go lawsuits — alleging nuisance and unfair enrichment.

Get Of My (St. Claire Shores, Michigan) Lawn

The Place: Wahby Park, St. Claire Shores, MI. A point of pride in a middle class enclave, Wahby is a public recreation area that doubles as a Pokéstop and Poke gym.

The Problem: People who live near Wahby aren’t happy. They claim Poké players are driving on private lawns, parking on public streets, tearing up gardens, and…looking at them! One resident lamented, “I don’t feel safe sitting on my porch!” Another referred to the situation as “a nightmare.” Someone else said she was “afraid to go to sleep,” and a man cursed his lack of prescience, lamenting: “If I knew [Pokémon Go] was coming, I’d have sold my place two months before it got here!”

An online anti-PoGoer warned the game was “ruining the quality of life for many Americans,” and a seemingly committed jingoist, who clearly isn’t a free market proponent, cautioned, “It’s a form of destrictive [sic] society, designed by the Chinese. And it’s a shame [Pokémon Go Players] have the power to vote, because it seems that they are easily brain washed. Which could lead this country to it’s [sic] destruction.”

Local Solutions?: Several residents near Wahby Park did seek redress with the city council — and the council did take steps to remedy the situation, like increasing signage, blocking off private roads, and increasing nightly police patrols. Apparently, however, the measures didn’t satisfy one couple who is moving forward with a Pokémon Go lawsuit.

The Lawsuit: One of the disrupted homeowners is suing Niantic, Inc., The Pokémon Company, and Nintendo Co. Ltd. for “nuisance and unjust enrichment.” Why unjust enrichment? Well, the plaintiffs feel that their lawn, being so close to a public park, has helped PoGo become a financial phenomenon. Plus, the lawsuit “seeks to stop designating GPS coordinates on or near private properties without permission.”

Local Opposition: Some Whaby Park Pokémon players are side-eyeing the plaintiffs. One young father interviewed for a local television station explained his viewpoint:

“For the majority, for the mass populous that comes here to play Pokémon, they’re here to have fun and enjoy the nature and meet cool people. We’re not trying to trespass anybody.”

Likely Outcome: Will the homeowners win? Believe it or not, they have a sliver of a shot. There’s a legal standard known as the “attractive nuisance doctrine,” which says homeowners can be held liable for a child’s death or injury if:

  • The landowner keeps something potentially dangerous on their property (i.e., broken car on lawn, trampoline, pool without fence (in some jurisdictions)).
  • The landowner knows children are around who might trespass.
  • The landowner knows that something on their property may endanger trespassing children.
  • The children are too young to recognize the risk.
  • The landowner can fix the problem at a reasonable cost.
  • The landowner does nothing.

Now, this lawsuit isn’t directly related to children harmed by Pokémon Go, but attorneys could argue that Niantic and Nintendo should have foreseen PoGo’s negative consequences. It’s a stretch, but not an impossibility.

That said, PoGo’s terms of service includes an arbitration clause that, in part, reads:

“[D]isputes between you and Niantic will be resolved by binding individual arbitration, and you are waiving your right to trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.”

Does that mean nobody can ever sue Niantic or Nintendo? Nope. Because also embedded in the ToS is a stipulation allowing customers to opt out of the arbitration clause, via email, within 30 days of downloading.

So, bottom line: who will likely win this Pokémon Go lawsuit? If we’re hypothetically trading Vegas odds, then sure, Niantic and Nintendo probably win this one. But you never know. At this point, we cab only be sure that the Courts and clerks are tackling the issue.

Pokémon Go Marketing: Ideas & Legal Considerations

Marketing gurus agree: If you’re a brick-and-mortar business that isn’t using PoGo to lure customers (pun intended), then you’re missing out on…well…money. As one Reddit user urged, “[Using Pokémon Go to promote] is the greatest investment you can make right now.”

So, how are business owners putting PoGo to work?

  • Bars, pubs and restaurants are becoming Poké gyms, then offering discounted drinks for members of the team that holds the gym.
  • Animal shelters are encouraging people to pick up dogs to walk while they’re out for Poké play, which has led to an increase in pet adoptions (Nice!).
  • Creating power stations for “phone refueling.”
  • Following the game and using social media to advertise when a rare Pokémon is in an establishment.

Are the promotions working? Heck yeah! As another Reddit user succinctly said, “[Pokémon promotions brought him] SO. MUCH. FOOT. TRAFFIC.”

“Put down a lure and watch the customers flow in,” advised another.

Tips To Avoid Pokémon Marketing Pitfalls

  • Account Security: Pokémon Go registration means handing over access to your entire Google account. Though Niantic does a wonderful job at keeping secure, the threat of a breach still lurks. Consider creating a new e-mail for your Pokémon Go marketing efforts in case disaster does strike.
  • Malware Concerns: Malware is starting to spread throughout the Pokéverse. Avoid risk by downloading from a reputable source.
  • Play Nice: Don’t try to sabotage a competitor’s PokéMojo. What do we mean? The app includes a Pokéstop and Poké gym removal form. So, let’s say Frank is in direct competition with Mary. They both own and operate ice cream parlors on Main Street. Being a gamer, Mary adopted Pokémon Go early and started using it to promote her business. It didn’t take long for her shop to become both a Pokéstop and a Poke gym. Frank, saw the amount of foot traffic Mary’s Poké-efforts garnered — and he didn’t like it. One day, when feeling particularly spiteful, Frank decided to sabotage Mary’s success by submitting a Pokéstop / Poké Gym removal request for Mary’s business. Frank’s actions could be considered unfair and deceptive marketing, and he could be fined — heavily — by the FTC. (And so can you, if you “pull a Frank.”)

Expect to read a lot about Pokémon Go lawsuits over the next several months. But the question remains: will the PoGo craze outlasts the lawsuits it spawns? Only time has the answer.

Kelly / Warner is a top-rated law firm that focuses on Internet, startup, and eSport law. To learn more about the firm, jump this way.

Internet Law 101: Virus Spoofing Can Cost Millions

virus spoofing
Is virus spoofing against regulations? You bet your spam it is. What are the consequences for getting caught? The FTC could force you to fork over millions, which has the power to extinguish an operation.

What Is Virus Spoofing?

Virus spoofing is the act of tricking someone into thinking their computer is infected. Spoofers typically dispatch pop-up warnings onto machines.

The pop-ups can be convincing and usually direct people to buy anti-virus programs. Sometimes the program is completely worthless; other times it works, but is needless. Whichever the case, it’s considered unfairly manipulative and contravenes marketing regulations.

Who Has The Authority To Sue Over Virus Spoofing?

The Federal Trade Commission (FTC) is the nation’s consumer watchdog. Established in 1914, the agency initiates marketing investigations against businesses and individuals — a privilege outlined in the Federal Trade Commission Act.

Attorneys general can also sue over such scams.

Why Is It An Actionable Offense?

The Federal Trade Commission considers Virus spoofing unfair and deceptive marketing, and therefore actionable under the FTC Act. In a recent case, the FTC explained that the defendant “subjected [consumers] to high-pressure deceptive sales pitches for tech support products and services.”

State of Federal Offense?

Deceptive spoofers can face both federal and state punishments.

Accused Of Virus Spoofing?

Has someone accused you of virus spoofing? Next question: “Did you do it?” If yes, contact a lawyer and explain the situation. (Don’t worry; he or she isn’t going to judge you.)

In the best case scenario, your lawyer will be able to loophole you out of the predicament. If not, he or she may be able to diminish the financial blow. Lawyers in this niche know how to negotiate with the FTC, navigate the investigation, and secure settlements with little fanfare (to reduce negative press).

Ready To Consult With An Internet Law Attorney Who’s Dealt With Virus Spoofing Investigations?

If you’re reading this post, there’s a chance you may be on the FTC’s radar. A word of advice: ignoring the issue won’t make it disappear.

But we can help.

Get in touch today; and together, we’ll start solving problems, instead of letting them fester. Let’s talk.