Keeping the Trolls at Bay: Effective Legal Strategies for your Business
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The document outlines effective legal strategies for businesses to navigate internet law challenges, including creating user agreements, handling lawsuits, and managing vendor relationships. It emphasizes the importance of preparation before legal issues arise, such as having favorable contracts, developing litigation hold policies, and preserving records. Additionally, it provides guidance on responding to legal inquiries, handling abuse issues, and utilizing DMCA and copyright strategies.
![Cease and Desist Letter
It July 16, 2011 to our attention that your web site
has come
Dear Sir
contents located the proprietor(s) of all copyright in a web content/ personal
I am representing at example.com is publishing to
Name’s copyrighted presentations work originated by [Name]. It has come to our
correspondence/public Work and personal information
including email, home address and phone number. publishing to Name’s
attention that your web site contents located at example.com is
copyrighted Work and personal information including email, home address and
phone number. Permission was neither asked nor granted to reproduce The Work and
the content terms of an injunction against the continued infringement, as well an
In entitled to the Copyright Statutes, Name is entitled to as
ttherefore constitutes infringement of Name’s rights. In terms of the Copyright
Statutes, injunction against the continued infringement, as well as
Name is o recover damages from the infringing conduct.
to recover damages from the infringing conduct.
Further the site forum administrator and associated parties have engaged in conduct
This of distributing harassingthis criminal harassment about Name and her family. They
that and libellous materials which harmful and
is to inform of organized conduct is seriouslyresulted in endangering the
have taken part
have life and the welfare of a minor.of criminal threats of bodily seriously harmful
resulted in the receipt This is to inform that this conduct is harm
to Namehave resulted in the receipt of criminal threats of bodily harm to Name family.
and family.
We demand that We assist us immediately This is written without prejudice to
you demand that you assist us immediately This
Name’s rights, all of which are hereby expressly reserved. I am attaching below the
is written without prejudice to Name’s rights,
location of the copyrighted work.
all of which are hereby expressly reserved. I am
attaching below the location of the copyrighted
work.](https://image.slidesharecdn.com/900-keepingthetrollsatbay-120118115318-phpapp01/85/Keeping-the-Trolls-at-Bay-Effective-Legal-Strategies-for-your-Business-49-320.jpg)
Keeping the Trolls at Bay: Effective Legal Strategies for your Business
- 1. Keeping the Trolls at Bay Effective Legal Strategies for your Business David Snead Jeffrey A. Cohen Attorney + Counselor Internet Business Law Attorney W. David Snead, P.C. Partner, COHEN & RICHARDSON, PC CEO, InternetLitigators
- 2. Creating your user agreement Dealing with “I want to talk to your lawyer” requests What you should do BEFORE you get sued Strategies for dealing with your first lawsuit Dealing with abuse issues
- 3. What is important to success? Information gathering • What exactly are you providing? • How much are you providing, and how much are your vendors providing? • How will you be compensated? • Do you need a lawyer? • What are your “hot button issues?” • How will you handle abuse?
- 4. What is important to success? Price? Expertise? Support? Service Level Who is your customer? Technical Fit? Agreement (SLA)? Cultural Fit? Measurability? Flexibility? Where are you selling? Who is the end user? In-House Capabilities? Current Corporate Time to Market? Strategic Advantage? Focus?
- 5. Contracting – Key Contract Terms • What do words mean • Preventative Contract Terms • Enforcement Terms • Incident Response Contract Terms • Risk of Loss Contract Terms • Warranties • Indemnities • Flow down • Product specific
- 6. 360’ Contract Review Vendors Customers • Term • Can you provide service during term? • Warranties • Carefully consider warranties • Intellectual property protection • IP is your most important asset • Fees • Can vendor raise fees? • Flow down provisions • Create integrated contract • Assignability • Keep in mind your exit Terms of Service SLA AUP Privacy Policy DMCA / IP SPAM Resources Customer Info
- 7. 360’ Contract Review Example: Bandwidth overages • What does your vendor contract say? • How have you monitored? • What do your termination provisions say? • Are you required to give a refund? • What liability do you have to your customer’s customers?
- 8. Contracting – Key Contract Terms • Acceptance • Actual event • Term • Defined • Controlled • Foreseeable • Early Termination • Minimum commitments • Penalties. Defined. • Price • Costs and increases spelled out
- 9. Contracting – Key Contract Terms • Billing disputes • Specific provision • Termination • Failure to pay • Certain events / notice • Violation of terms / AUP • Limitation of liability • Realistic figure • Understand consequences
- 10. Contracting – Key Contract Terms • Warranties • Should you provide no warranties? • Understand “make mutual” requests • Security • Differences between hosting types • Possible legislation • Define breach • Privacy • Contract provision • Flow through issues • European customers
- 11. Creating your user agreement Dealing with “I want to talk to your lawyer” requests What you should do BEFORE you get sued Strategies for dealing with your first lawsuit Dealing with abuse issues
- 12. How to handle “I want to talk to your lawyer” 1. What is the Problem?
- 13. How to handle “I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond?
- 14. How to handle “I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises.
- 15. How to handle “I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises. 4. Do you need this customer or not?
- 16. How to handle “I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises. 4. Do you need this customer or not? 5. Collect relevant documents, emails and names.
- 17. How to handle “I want to talk to your lawyer” 1. What is the Problem? 2. Do you need a lawyer to respond? 3. Avoid lengthy explanations, responses ad overpromises. 4. Do you need this customer or not? 5. Collect relevant documents, emails and names. 6. Best approach… (hard/soft)
- 18. Creating your user agreement Dealing with “I want to talk to your lawyer” requests What you should do BEFORE you get sued Strategies for dealing with your first lawsuit Dealing with abuse issues
- 19. What you should do BEFORE you get sued? “Anybody can sue anybody for anything. There is nothing that you can do to prevent that. The questions are: 1) How well are you prepared to defend yourself and 2) Ultimately what will be the outcome and cost.” Jeffrey A. Cohen ~ InternetLitigators
- 20. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place
- 21. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place a.Read them b.Understand them c.Know them d.Use them
- 22. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy
- 23. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Record's preservation
- 24. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Records preservation 4. What to do with email/backup
- 25. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Records preservation 4. What to do with email/backup 5. How to choose counsel
- 26. What you should do BEFORE you get sued “… LegalZoom is not a law firm and is not a substitute for an attorney or law firm. Communications between you and LegalZoom are protected by our Privacy Policy, but are not protected by the attorney-client privilege or work product doctrine. LegalZoom cannot provide legal advice and can only provide self-help services at your specific direction…” ~ LegalZoom Home Page - 2011
- 27. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Records preservation 4. What to do with email/backup 5. How to choose counsel
- 28. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Records preservation 4. What to do with email/backup 5. How to choose counsel 6. Insurance
- 29. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Records preservation 4. What to do with email/backup 5. How to choose counsel 6. Insurance 7. Investigation
- 30. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Records preservation 4. What to do with email/backup 5. How to choose counsel 6. Insurance 7. Investigation 8. Offers of settlement
- 31. What you should do BEFORE you get sued 1. Have favorable agreements/contracts in place 2. Develop Litigation Hold policy 3. Records preservation 4. What to do with email/backup 5. How to choose counsel 6. Insurance 7. Investigation 8. Offers of settlement 9. Should you sue first?
- 32. Creating your user agreement Dealing with “I want to talk to your lawyer” requests What you should do BEFORE you get sued Strategies for dealing with your first lawsuit Dealing with abuse issues
- 33. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) 2. AS A PLAINTIFF (Filing Suit)
- 34. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away
- 35. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction
- 36. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy
- 37. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications
- 38. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications d) Notify your insurance company
- 39. Strategies For Dealing With A Lawsuit 1. AS A DEFENDNAT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications d) Notify your insurance company e) Begin collecting/segregating relevant docs/email
- 40. Strategies For Dealing With A Lawsuit 1. AS A DEFENDANT (Being Sued) a) Contact your litigation attorney right away i. Internet Knowledge ii. Proper Jurisdiction b) Implement Litigation Hold policy c) Centralize external communications d) Notify your insurance company e) Begin collecting/segregating relevant docs/email f) Start thinking about possible “business solution”
- 41. Strategies For Dealing With A Lawsuit 1. AS A DEFENDANT (Being Sued) 2. AS A PLAINTIFF (Filing Suit)
- 42. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible.
- 43. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant
- 44. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email
- 45. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email d) Determine Jurisdiction, Statute of Limitations, Amount in Controversy
- 46. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email d) Determine Jurisdiction, Statute of Limitations, Amount in Controversy e) Adjust your expectations
- 47. Strategies For Dealing With A Lawsuit 2. AS A PLAINTIFF (Bringing Suit) a) Contact your litigation attorney as early as possible. b) Avoid informal emails/contacts with potential defendant c) Collect relevant docs/email d) Determine Jurisdiction, Statute of Limitations, Amount in Controversy e) Adjust your expectations f) Consider alternatives to Litigation
- 48. Creating your user agreement Dealing with “I want to talk to your lawyer” requests What you should do BEFORE you get sued Strategies for dealing with your first lawsuit Dealing with abuse issues
- 49. Cease and Desist Letter It July 16, 2011 to our attention that your web site has come Dear Sir contents located the proprietor(s) of all copyright in a web content/ personal I am representing at example.com is publishing to Name’s copyrighted presentations work originated by [Name]. It has come to our correspondence/public Work and personal information including email, home address and phone number. publishing to Name’s attention that your web site contents located at example.com is copyrighted Work and personal information including email, home address and phone number. Permission was neither asked nor granted to reproduce The Work and the content terms of an injunction against the continued infringement, as well an In entitled to the Copyright Statutes, Name is entitled to as ttherefore constitutes infringement of Name’s rights. In terms of the Copyright Statutes, injunction against the continued infringement, as well as Name is o recover damages from the infringing conduct. to recover damages from the infringing conduct. Further the site forum administrator and associated parties have engaged in conduct This of distributing harassingthis criminal harassment about Name and her family. They that and libellous materials which harmful and is to inform of organized conduct is seriouslyresulted in endangering the have taken part have life and the welfare of a minor.of criminal threats of bodily seriously harmful resulted in the receipt This is to inform that this conduct is harm to Namehave resulted in the receipt of criminal threats of bodily harm to Name family. and family. We demand that We assist us immediately This is written without prejudice to you demand that you assist us immediately This Name’s rights, all of which are hereby expressly reserved. I am attaching below the is written without prejudice to Name’s rights, location of the copyrighted work. all of which are hereby expressly reserved. I am attaching below the location of the copyrighted work.
- 50. Overall strategy DMCA • Register • Draft policy (OCILLA) • Post contact information • Check complaint Trademark • Draft policy • Determine procedure up front • Understand differences between trademark and copyright • Look for trademark complaints in DMCA clothing Other IP • Draft policy • Determine procedure up front • Determine whether CDA applies • Look for IP complaints in DMCA clothing
- 51. Overall strategy Nasty customers • Based on contracts • Determine procedure up front • Don’t rely on disclaimer of liability Subpoenas and Warrants • Review, Verify, Schedule, Comply • Relationship with law enforcement Nasty grams • Sniff test works best • Base analysis on facts • A letter from a lawyer isn’t scarier • Don’t rely on disclaimer of liability
- 52. Questions? David Snead Jeffrey A. Cohen Attorney + Counselor Internet Business Law Attorney W. David Snead, P.C. Partner, COHEN & RICHARDSON, PC CEO, InternetLitigators [email protected] Twitter: wdsneadpc [email protected] Blog: TheWHIR (310) 469-9600 News | Blog | Articles | Member Services InternetLitigators.com