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The Law and You - Part 1

Discussion in 'Business & Tax Advice' started by Winchester, Nov 4, 2011.

  1. Winchester

    Winchester BANNED BANNED

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    Understanding the Law can be a difficult situation. This thread will give you my interpretation of the law as I think you need to know it. This is not legal advice. This should not be in lieu of consulting an attorney; and neither myself nor Blackhatworld.com or any of its staff are responsible for any knowledge used here in any action either illegal, damaging, defamatory or negligent in nature. The goal of this thread is not to enable illegal actions, but rather simplify complicated law as it pertains to the internet.

    These interpretations in general will deal with laws applicable to the UK, US, Canada, Sweden, Australia and the EU; however be aware that they can easily be applied to other countries and international cases.

    Copyright Claims:
    This section is based strictly on American Copyright Law; as most domain names and servers are owned by the US government and can be seized in a copyright complaint

    Title 17 of the United States Code Circular 92 deals with Copyright claims and violations. It states that any work of:

    (1) literary works;

    (2) musical works, including any accompanying words;

    (3) dramatic works, including any accompanying music;

    (4) pantomimes and choreographic works;

    (5) pictorial, graphic, and sculptural works;

    (6) motion pictures and other audiovisual works;

    (7) sound recordings; and

    (8) architectural works.

    Are naturally protected by copyright claims even if unpublished, once published an author/creator can hold that copyright under the claim nationally by filing for copyright.

    Any such content can not be used unless:

    -It falls under the America "Fair Use" policy (Title 17, Circular 92, Section 107) which means it is being used for:

    • Non-profit/Educational Purposes
    • News Reporting
    • Critisim and Critique
    • Research Purposes

    Even in such cases it must be taken into account:

    • The amount of the original used
    • The "Character" of the works used purposes (i.e. was it for commercial gain?)
    • The effect on potential market value of the original piece (i.e. are you causing the creator an avid financial loss)

    Case Study 1: Limewire



    Case Study 2: ***** Video - The Dangers of "Conspiracy to Commit"


    Case Study 3: Sidereel

    Other Copyright Claims:

    There are other times when copy right comes into play rather than just content - such as use of a name or trademark. Other than the "Fair Use" policy there is no other acceptable time to use a companies name. In these cases individuals often are unaware that their content is copyright and thus receive a "cease and desist" (C&D) letter from a lawyer informing them the action is illegal and they should stop their illegal action right away. In such a case it always seems to work out better if they do stop right that instant and undo their violations.



    Case Study 4: - Facebook Tools

    Using names and discussing competition:

    Using someone or something's name or discussing one's competition is technically a matter of copyright, however since such expression is covered under Section 107 Fair Use policy then it's not able to be taken as a direct copyright claim. For this reason the claims against name usage are nearly always "Slander/Libel/Defamation" or "Misrepresentation"


    Slander/Libel/Defamation:

    Slander and Libel are the two primary classifications for "defamation" literly defaming someone or something, stripping away its reputation, or monetary value by expression either in print or in speech.

    Slander deals with defamation via speech, and does include video, podcast, and audio recordings.

    Libel deals with defamation in-print including websites, emails, blog posts, and e-articles.

    Defamation falls under the category of common laws of "tort" which means it is not a black and white criminal act, but rather an act of wrongful miss-doing to another person. Where there is a grey area to what is and what is not defamation.

    In general:

    "Any expression, either written or spoken, that causes damage to reputation of character, fame, success, or viability of a person, product, service or entity; that is un-grounded in fact, is a case of defamation"

    Now that is generally how I would define it, essentially anything negative you say about a person can be considered defamation except for certain criteria:

    1) The statement can be proven as a fact (it is readily debated what counts as reliable proof of FACT)

    2) The accused can prove the statement caused no harm

    3) The accused holds "qualified" or "absolute" privilege (the accused's testimony is based on the fact you are an expert in a certain field, or is given before a government legislature)

    4) It is the accused's commentary on a mater of public interest and is fair

    5) It is accussed's sole opinion, backed by fact, and clearly stated as opinion rather than anything you are trying to pass off as fact.

    6) Claimant is incapable of further defamation - I.e. their reputation is so terrible it no longer matters

    In most cases an individual is not responsible for defamation if they meet the above criteria, unless the accuser can of course prove that you were attempting to indirectly and purposefully cause damage to their reputation.

    Claims about competition/Claims about one's product:

    Another grey area of common law tort is "unfounded claims" either claims about ones self/one's product/one's service or one's competition that can not be backed up.

    For example an unfounded claim could be:
    Or

    To back up either of these quotes Larry would have to have research and results backing them up as quantifiable fact. It is not illegal to claim you are better, faster, etc than someone else as long as you can prove it.

    Same with some education system who claim your grades will go up - they would need to back it with a researched claim.


    --End of Part 1:
    --Part 2 will deal with ToS, JV/Contracts, Patents, and General Business Law

    Post Script: It is important to remember when discussing the law you legally may only discuss your opinion, never advice, as that is a practice legally reserved for those formally certified by the BAR.

    You can of course give your opinion, say what you understand of the law, or say what you would do in a hypothetical situation :)

    Cheers,
    Winchester
     
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  2. SuperLinks

    SuperLinks Elite Member

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    Very helpful post!

    Gonna bookmark for future reference. Looks like you took your time to compile many angles that we ALL have to go through in our IM businesses.

    +REP as well...
     
  3. Winchester

    Winchester BANNED BANNED

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    Cheers I hope to have part 2 out sometime tomorrow; it's all a matter of taking the time to brain dump my knowledge on a page and sort it!
     
  4. luccha

    luccha Regular Member

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    Well worth a reading. Looking forward to part 2 :D
     
  5. Winchester

    Winchester BANNED BANNED

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    Thanks Luccha, it's on it's way and I hope to have it posted sometime tomorrow
     
  6. bitencrypt

    bitencrypt BANNED BANNED

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    Very informative, the law is not complicated once you know its relationships.
     
  7. pwcbb11

    pwcbb11 Junior Member Premium Member

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    you need to make one of these for ebay