Is Your Blog Violating Other Websites’ Terms of Use?

With plenty written about the perils of accidentally infringing on the copyright of images we find online, most of us are well awareProceed with caution symbol: yellow triangle with white exclamation point in middle we should never use a photo unless the right to use and attribution requirements are crystal clear. And we all know it’s illegal to copy someone else’s content verbatim and present it as our own. But did you know that some companies have language within their websites’ “Terms of Use” that call for anyone citing or quoting any of their content to have explicit permission from them to do so first? Some terms of use even state that links to any other page other than their Home page are a no-no.

 

Of course, if you read the terms of use of every website you visit, you already know this.

 

Uh yeah…who does that? And websites don’t typically make it apparent that they even have terms of use (typically the links to them are discreetly positioned in small type at the bottom of websites), let alone language within them that restricts how you reference or link to their content.

 

As I was digging into this topic, I found very little about it from internet marketing experts or anyone else. Which leads me to believe a lot of people may not realize that mentioning statistics from certain companies or linking to a business’s blog post or extracting a quote from an article—even with attribution—could land you in some trouble.

 

So, I’ve asked Matthew Landis, attorney at Russell, Krafft & Gruber, LLP, in Lancaster, PA to share his expertise and thoughts on what we should watch out for and what the risks are if we violate—even if unintentionally—a websites’s terms of use.

 

Q1. How can companies be legally allowed to restrict people from mentioning their content or linking to the pages of their websites that they’ve made publicly available?

 

A1. The legal basis for these restrictions is twofold.

 

First, intellectual property rights such as copyright and trademark grant certain exclusive rights to the intellectual property owner.

 

Copyright protects original works of authorship that are fixed in a tangible medium of expression. Some examples of works covered by copyright are literary or written works, photographs, and graphic works. Copyright is automatically created when the work is fixed—i.e., when the words are saved or when the photograph is taken.

 

Copyright protection extends to the content on a website—specifically, the combination of words and structure that expresses the information, but not the factual information itself. Someone infringes on another’s copyright when they violate one of the copyright holder’s exclusive rights, such as the right to reproduce, distribute, or create derivative works. The fair use doctrine provides an exception, which allows others to use copyrighted works for certain, limited purposes.

 

Trademark law serves to protect against consumer confusion with a brand name or slogan and gives businesses the right to protect their commercial identity.

 

Second, the terms of use may be considered a binding contract enforceable against the user. A valid contract may be created by a user assenting to the terms by clicking “I agree” when creating an account for a website or by checking a box indicating that they have accepted the terms and conditions. Courts generally have accepted these methods of creating “clickwrap” agreements, which is a reference to the shrink wrap agreements that were made effective by a user indicating their assent to the terms printed on the label by breaking the wrapping of boxed software. A “browsewrap” agreement is typically posted on a website and does not contain an express manifestation of assent such as by clicking “I agree.” Courts are generally skeptical of “browsewrap” agreements, but the facts of each case will dictate whether an enforceable agreement has been created.

 

Q2. Are there any particular types of companies that are more likely than others to have policies restricting use of, referencing, or linking to their content?

 

A2. It generally depends on the business and its goals. Businesses that conduct research, sell information products, and creatives such as photographers and graphic designers often have some sort of policy in their terms of use that restrict a user’s right to use content hosted on their website.

 

Q3. Where can you find a company’s policy? Is it always under “terms of use” or could it be elsewhere on their website?

 

A3. Typically a link will be located in the footer of the site under “Terms,” “Terms of use,” “Terms and Conditions,” “Legal,” “Policies” or a similar link. I’ve also seen shorter statements relating to use of intellectual property (such as a Creative Commons license) or citation guidelines included in a site’s sidebar or included at the bottom of individual blog posts.

 

Q4. What do companies that restrict use of and linking to their content typically forbid or require?

 

A4. There are many ways to restrict use of content. First, as mentioned above, copyright automatically protects many types of content and there doesn’t have to be a policy or statement about it in order for the work to be protected. Often times a citation policy will include the exact way to reference the corporate entity that is the owner of the work in accordance with their branding standards. Some entities also refuse the right to use the work unless permission is requested and granted prior to the use.

 

Q5. Why would companies want to prevent others from referencing their content in their blogs? After all it’s free publicity, right?

 

A5. Content creators typically want to retain a certain amount of control over their work such as how and where it is used, and in addition often want to ensure that they are fairly compensated for their work.

 

Alternatively, if use of the work is being given for free, they want to ensure that they are quoted or referenced in a particular way so that users know the source of the information. It also helps the user identify the source of the work so if they wish to utilize the work, they can contact the owner and make appropriate arrangements to use the work.

Q6. What could happen if you mentioned a company’s content or linked to a company’s website without realizing they have a policy in place that forbids it or that requires you have permission first?

 

A6. It depends on a number of factors, including but not limited to whether any copyright or other intellectual property right has been violated by the use of the content, whether the terms of use constitute a binding contract, and the terms of use that you are subject to.

 

The first step is often a request to take down the material and a threat of legal action, however depending on the egregiousness of the violation or a company’s tolerance for impermissible use of their content, they may skip this step and demand financial damages or file a lawsuit for an injunction and damages.

 

The terms of use themselves may also state the remedies that are available to the company. The company often reserves the right to restrict or eliminate access to their services in the case of a violation of the terms.

 

If the content is being hosted by another service, such as a website provider or social media site, those terms of service will also apply to you as well. Use of these types of sites always includes a provision that you have the legal right to use all of the content that you post on the site, and in order to insulate themselves from liability, the provider of the service has a legal duty to take steps to remove content that is infringing or otherwise in violation of another’s rights.

 

For example, if you produce a video that is hosted on YouTube and use a popular song as the background music, YouTube may take action against you in accordance with the Terms of Service that you agreed to when you created your account. These remedies include termination of your account and indemnification of YouTube for any claims that arise out of your use of their service.

Q7. Any other thoughts on what blog writers should watch out for and how they should protect themselves when using information they’ve found on other websites?

 

A7. Familiarize yourself with the basics of copyright and fair use for the purposes of protecting your own content and respecting the rights of others. The Electronic Frontier Foundation has some great free resources called the Legal Guide for Bloggers that contains an overview of the basics.

 

As a general rule, if you are not the creator of the content, then you don’t have the right to use it unless that right is specifically granted in a license or the use constitutes fair use. If you are using another’s content, familiarize yourself with their terms of service and take the appropriate steps to make sure that you are able to use the content in accordance with their terms and policies.

 

Final Thoughts

As with any issue of a legal nature, consider talking with an attorney to discuss your concerns about your terms of use or the terms of use of websites that you’re visiting. This blog post is for informational purposes only; it is not a substitute for legal advice specific to your situation.

 

Attorney Matt LandisMatt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He is a creative and strategic thinker that works with business owners, entrepreneurs and individuals to prevent and resolve legal problems. Matt regularly writes about legal issues at the Lancaster Law Blog.

 

 

The Nitty Gritty Of Non-Disclosure Agreements For Your Small Business

I’ve been asked to sign—and have asked others to sign—non-disclosure agreements in the course of doing business with others. Non-Disclosure Agreement GraphicBut are they really necessary or simply a formality? Nellie Akalp, who is a small business expert and CEO of CorpNet (an online legal document filing service), recently wrote a post that covers why NDAs are important.

 

As solopreneurs and small business owners, it helps to know what legal documents might be in our best interest to secure when working with individuals and other companies. So, I asked Nellie if she’d share more about NDAs with my readers. I believe this Q&A can help answer some of the questions you might have on the topic.

 

  1. What is the purpose of a non-disclosure agreement? How can it protect your business?

 

An NDA, or non-disclosure agreement, is a contract that binds someone to keep a secret. In the course of running your business, you may give contractors, vendors, or other business partners access to “behind the scenes” information that you’d prefer to keep private. An NDA creates a confidential relationship to prevent people from revealing any of that private information.

 

  1. What circumstances dictate when a non-disclosure agreement is necessary?

 

This is a really important question, because small businesses often think that they don’t have any kind of “confidential” information. You may not be building rocket ships or safeguarding the recipe for Diet Coke, but you still have sensitive information that should stay in house. Examples are client information, your annual marketing strategy, financial data, or an analysis about your competitors. Let’s say you hire a contractor to help you with some client work in the background. You might not want them to contact your clients directly and disclose their role.

 

  1. Who should you ask to sign your non-disclosure agreement? (i.e. vendors, project partners, etc.)

 

Anyone who might have access to sensitive information. Think about vendors, contractors, freelancers, and business partners. An NDA is such a standard procedure in business operations these days; most people won’t think twice if you ask them to sign one.

 

  1. Are there any particular types of businesses that need a non-disclosure agreement more than others?

 

Certainly. Tech companies or anyone who manufactures a product will have very specific needs to keep their manufacturing process secret. Or, if you keep any confidential information about your customers and clients, you’ll need to have a solid privacy policy. But, as I said above, small businesses of any kind probably have some kind of sensitive information that should be protected.

 

  1. At what point during your business relationship should you ask for your non-disclosure agreement to be signed?

 

Great question! In most cases, the best time to introduce the NDA and have it signed is at the point of hiring the contractor or signing the vendor/contractor agreement. In some cases, you may need to reveal company information during the interview or exploration phase (meaning, before you decide to work with someone). In this case, you should have an NDA signed before giving anyone access to your information.

 

  1. What are the key elements every non-disclosure agreement should include?

 

A typical NDA should include the following elements. First, it should specify what kind of information should be kept secret. Some people choose to keep this as broad as possible, but I think it’s a good idea to be specific about what can’t be disclosed. The reason for this is it makes sure the other party realizes what their obligations are and what information they need to keep private. In some cases, contractors or vendors may not even realize they shouldn’t talk about your new website or contact a client directly. Remember, the whole point of the NDA is to make sure your proprietary information stays private; spelling out the details will help ensure all parties are on the same page with how to handle information.

 

Other elements in an NDA should be the length of time that information should remain confidential, what happens if there’s a breach, and what method of resolution should be taken when there’s a breach (e.g. court or arbiter). You can find digital templates for NDAs online. Just search on Google for some samples; one example is Upcounsel.

 

  1. What should you do if you discover someone violates the terms and conditions of your non-disclosure agreement?

 

Hopefully, your NDA specifies how disputes or breaches should be resolved. Many small businesses opt to use arbitration rather than the court system. And, while I believe that small business owners can handle much of their legal matters on their own today, this is one situation where you should retain an attorney to assist you with recovering any damages. If the other party is found guilty of breaching the contract, they can be held responsible to pay those attorney fees (note, this is another good point to spell out in the NDA).

 

  1. Are there any other tips or advice you might share about non-disclosure agreements? 

 

An NDA is a very easy legal document to produce and ask to have signed. As I mentioned before, it has become standard practice these days so there’s very little reason not to use an NDA with each new vendor/contractor/partner relationship. With that said, it’s important to realize that an NDA is just a document; it’s not a 100% guarantee that someone won’t misuse your confidential information. The bottom line is you need to use common sense and a little caution whenever sharing potentially sensitive details with others.

 

I hope this information has helped you better understand NDAs, and I thank Nellie for sharing her expertise. Of course, this post is not meant to provide legal guidance or serve as a substitution for professional counsel. Whenever creating or signing any legal document you should consider consulting a trusted legal professional for guidance. It’s always better to be safe than sorry!

Nellie Akalp, CorpNet CEO

Nellie Akalp is a serial entrepreneur, small business advocate, speaker and author.  She is the founder & CEO of CorpNet.com, an online legal document filing service, where she helps entrepreneurs start, grow and maintain a business.

Making Your Mark as a Solopreneur – Trademark Basics

As a business owner, you work hard to make a name for yourself and to find ways to set yourself apart from your Registered Trademark competition. One of the more obvious ways to do that is to visually suggest that particular wording, symbols or designs – in and of themselves or in combination with each other – belong to you.

When you’re defining and differentiating your brand, a trademark (brand name) can help you create and maintain distinction. “Trademark” is often used to refer to both “trademarks” and “service marks” – which are similar, but slightly different.

Trademarks are used to identify and distinguish the provider of goods.

Service marks are used to identify and distinguish the provider of services.

When Can You Use Them?
According to the United States Patent and Trademark Office (USPTO), “Any time you claim rights in a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO.”

So you’re allowed to slap the “TM” or “SM” to your name or logo without filing any documentation. Doing that lets others know that you’re claiming the particular verbiage or symbol or design, but legally you don’t really have much of a leg to stand on if someone else starts to use the same thing to represent their business offerings.

The official federal registration symbol is ®. Don’t ever put that on your name, logo or anything else unless you’ve taken the step to get your mark approved and registered by the USPTO. Even if you’ve got a registration application pending, you need to stick with the “TM” or “SM” designation until you’re official.

What’s the Big Deal About the ®?
In a nutshell, your brand name gets some legal protection and benefits from registering with the USPTO. To name a few from the agency’s website:

  • Public notification that you’ve claimed ownership of the mark.
  • Legal presumption of your ownership of the mark.
  • Exclusive right to use the mark to represent the goods or services that you’ve listed in the registration.
  • Ability to bring legal action in federal court if someone uses your mark without authorization.

How Do You Register a Mark?
If you do choose to file an application to register your trademark, it’s smart to do a search in the TESS (USPTO’s Trademark Electronic Search System) to make sure no one else has filed an application for the same mark.

And because registering a trademark is a legal proceeding, it would be wise to consult an attorney to guide you through the process.

Costs associated with registering vary depending on a few different factors:

The application form that you use
There’s a “regular” ($325) and a “plus” ($275) form. The plus version costs less because it comes with more strict requirements on what goods and services can be registered.

How many marks you’re registering
You may only request to register one mark per application.

The number of products and services classes your mark will be associated with
Say you want to sell hats and blankets under your service mark. You’d need to pay double the fee because those items fall under different classes.

Of course, all of this is just the tip of the iceberg, so I suggest visiting the USPTO website where you can review their comprehensive list of FAQs and other information relative to trademarks and service marks.

And you might have noticed that “The Insatiable Solopreneur™” has had the “TM” behind it for some time. There’s a reason for that – but I’ll wait to share it a little later in the year. 😉

Have you officially registered any trademarks or service marks for your business? Please feel free to share your tips and advice on the topic here!

Image courtesy of Stuart Miles / FreeDigitalPhotos.net