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Articles by Chip Cooper

• Harvesting Tweets for Research and Profit - Is it Legal?
  Harvesting tweets is on the rise. Researchers and marketers alike are now capturing and downloading Tweets from Twitter's database. Privacy activists argue privacy concerns. Researchers, marketers, and Twitter users all want to know - is Twitter harvesting legal?
  Published 23Aug2010, viewed 11 times

• Do Trademarks Always Trump Domain Names? Not always.
  Online start-ups are faced with the daunting task of selecting a domain name that will withstand legal challenges. There's a general belief among online start-ups that a trademark owner will always trump a domain name registrant with the same or confusingly similar domain name. That's not always the result... as two recent 2010 UDRP decisions point out.
  Published 13Aug2010, viewed 34 times

• YouTube DMCA Ruling is Good News for Blog Sites
  The Digital Millennium Copyright Act (DMCA) provides a "safe harbor" from strict liability for copyright infringement to online service providers that satisfy its requirements. Does the June, 2010 ruling in favor of YouTube establish an important precedent for your blog site to avoid strict liability for copyright infringement by your blog posters?
  Published 28Aug2010, viewed 25 times

• SaaS-eCommerce Sites: Twitter Case Provides Critical Lessons in Administrative Security
  The recent FTC settlement with Twitter for claims of lax data security practices focused on administrative controls (or the lack thereof). Webmasters of SaaS and ecommerce sites who fail to learn and apply the critical lessons of the Twitter case do so at their peril.
  Published 11Aug2010, viewed 64 times

• Why The New Behavioral Ad Icon Matters to Webmasters
  The new behavioral ad icon will begin to appear on website ads soon. Whether or not it satisfies the concerns of online consumers and governmental regulators should matter a great deal to all webmasters. A lot is riding on the outcome.
  Published 01Aug2010, viewed 90 times

• Proposed Online Shoppers' Confidence Act: Huge Impact on eCommerce and Membership Sites
  On May 19, 2010, the U.S. Senate Commerce Committee released proposed legislation - the "Restore Online Shoppers' Confidence Act" - aimed at regulating sites that transmit or receive consumer data for post-transaction sales and sites that sell products or services with recurring charges. The proposed legislation will have a huge impact on eCommerce sites and membership sites.
  Published 13Jul2010, viewed 64 times

• Will Your SaaS Agreement be Unenforceable for a User's Lack of Contracting Authority?
  Courts continue to hold that online SaaS agreements enforceable. Two recent cases deal with the issue of contracting authority -- where the users'employees clicked through the agreement, but the user later claimed they had no authoirty to contract. Are there important lessons from these two cases for SaaS webmasters?
  Published 21Jun2010, viewed 67 times

• FTC Fires Shot Over Bow of Internet Advertisers and Endorsers Based on FTC Guides
  It didn't take the Federal Trade Commission (FTC) long to show Internet advertisers and blogger-endorsers that they mean business regarding the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR, Part 255) that went into effect in December, 2009. Does the first case under the Guides enlighten or confuse us more?
  Published 10Jun2010, viewed 78 times

• Proposed Legislation Will Increase Burden for Website Legal Compliance
  The U.S. Congress will soon be voting on two separate bills, which if they become law will certainly increase the burden on webmasters for website legal compliance, including new disclosures and website legal forms. These proposed laws will regulate not only how webmasters target consumers with behavioral ads, but also the content of the ad messages themselve.
  Published 28May2010, viewed 89 times

• Your Website Legal Forms and the "Results Not Typical" Gotcha
  "Success story" testimonials have long been a staple for advertisers with their website legal forms. The FTC, effective in December, 2009 placed severe restrictions on the use of the "results not typical" website legal forms disclaimers with "success story" testimonials, and failure to comply could result in significant legal liability.
  Published 12May2010, viewed 103 times

• 3 Critical Alerts Regarding Your Website Legal Forms For Privacy and Data Security
  Website privacy and data security violations continue to be the most critical legal concern for webmasters of software-as-a-service (SaaS) websites and ecommerce websites. Three recent legal developments illustrate why webmasters of SaaS websites and ecommerce websites should monitor and stay current with these developments, or suffer severe consequences.
  Published 23Apr2010, viewed 155 times

• Do Your Website Legal Documents Position You for Marketing Success?
  Website legal contracts, website legal forms, and website documents as positioning statements for marketing purposes? You've got to be kidding, right? Savvy potential customers and joint venture partners can easily determine if your site is a trusted, serious website or just a hobby website merely by checking out your online website legal compliance documents. Is your website making the right positioning statement?
  Published 13Apr2010, viewed 110 times

• Should Your Affiliate Agreement Require Strict Compliance With CAN-SPAM, or More?
  If you have an affiliate network, you're probably aware that under the CAN-SPAM Act of 2003 you can be held liable for your affiliates' spam. Should you simply require strict compliance with CAN-SPAM, or should you require a more restrictive approach? And if you're an online marketer with no affiliate network, what are your rights to send unsolicited commercial email? And does the exercise of these rights make good business sense?
  Published 24Feb2010, viewed 194 times

• Top 12 Must Have Clauses for Your Referral Agreement Template
  Every small business should have a referral agreement template. A simple referral agreement will help you get new business in any economy, and particularly in a down economy. You need a good referral agreement template handy so that when a good opportunity presents itself, you'll be prepared. You'll never know in advance when this will happen.
  Published 17Feb2010, viewed 693 times

• 2010 Resolution -- Give Your Website a Legal Check-Up
  We all make New Year's resolutions. If you operate a website, you're probably aware that your website operations are now highly regulated. And the pace of legal regulations continues to accelerate. Which means that you face an increasing risk of legal liability. So, it's a good idea to give your website a legal check-up and to update your site before it's too late.
  Published 27Jan2010, viewed 152 times

• How to Write an FTC Guides Disclosure Policy
  Now that the initial buzz on the Web has analyzed when and under what circumstances endorsers are required to disclose "material connections" with their advertisers for compliance with the FTC Guides, the next big questions are: how to actually disclose these material connections, what are the elements of an FTC Guides Disclosure Policy, and how to write one? Writing an effective Disclosure Policy is the key to avoiding a hefty $11,000 fine.
  Published 05Jan2010, viewed 163 times

• Your SaaS Agreement - Which End-User Agreement Approach is Right For You?
  If you offer software as a service (SaaS), your choices among contracting approaches for users include an electronic, click-wrapped agreement or a more traditional paper-based, signed agreement - or even a hybrid of these two approaches. How do you decide which approach is right for you? What are the factors to consider?
  Published 09Dec2009, viewed 174 times

• Top 4 Strategies To Structure Your SaaS Reseller Agreement
  If you'd like to leverage your success with your SaaS model by setting up a SaaS reseller channel, or if you'd like to begin to offer SaaS services originated by another vendor, you're facing the question of how to structure your Saas reseller agreement. There are at least 4 ways to do it, and one of these may be a good fit for you.
  Published 21Nov2009, viewed 269 times

• Cliffsnotes for Online Marketers To Avoid FTC Liability From Affiliates and Resellers
  Do you recruit bloggers and other intermediaries to write testimonials and endorsements (think affiliates or resellers)? If the answer is "yes", the FTC says you're liable if they fail to disclose a material connection to you or misrepresent your product or service. This Cliffsnotes-style article cuts through the mis-information and legaleze, providing online marketers with clear cut guidelines to avoid liability.
  Published 15Nov2009, viewed 257 times

• CliffsNotes For Bloggers To Avoid The FTC's $11,000 Fine For Endorsements
  If you've already read - and clearly understand - the 81-page FTC Guides for the use of Endorsements then read no further. However, if you're a blogger, and you're not quite sure about how to decipher the legaleze or how to comply with the Guides, then this article may be for you... particularly if you're more than a little concerned about avoiding the $11,000 fine for non-compliance.
  Published 26Oct2009, viewed 333 times

• 3 Critical Things Blog Site Webmasters Need To Know About The FTC's New Blog Regs
  In recognition of the increasing influence of social media online, the Federal Trade Commission (FTC) on October 5, 2009, for the first time since 1980, issued new regulations governing online testimonials and endorsements by bloggers. If you operate a blog site, your exposure to legal liability may have increased exponentially.
  Published 15Oct2009, viewed 814 times

• Do You Own Your SaaS Website? Part 3 - Your Opt-In and Customer Lists
  When you think about ownership of your website, you're probably thinking of the typical website elements - web pages, content, and background software. Right? Have you ever considered that your opt-in and customer lists may be worth more than all of the typical website elements combined? You should. And a purchaser of your website business probably will. Have you protected and enhanced the value of these lists?
  Published 01Oct2009, viewed 203 times

• Do You Own Your SaaS Website? Part 2 - Have You Considered Pre-Existing Elements?
  Back in the day, most websites were developed completely from scratch; determining ownership was relatively easy. These days, the typical website bundles pre-existing elements. If you have any interest in selling your SaaS website in the future, you must not only secure clean ownership regarding the intellectual property, but also you must acquire all of the necessary use rights for the pre-existing elements licensed in.
  Published 15Sep2009, viewed 242 times

• Do You Own Your SaaS Website? Part 1: 5 Copyright Myths Debunked
  Your SaaS website represents an important investment. It may produce income for you - maybe even a lot of income... either now or in the future. What if someone made you an offer to buy your website - an offer you can't refuse? Do you really own your website and all of its components? Could you transfer clear ownership to the buyer? Or does the deal fall through because, upon close examination, you really don't own it - or key parts of it?
  Published 26Aug2009, viewed 405 times

• New Consumer Tracking Rules Make it Easier to Flunk Website Legal Compliance
  Let's suppose you want to track behavioral data indicating how users use your website. You provide a notice of your tracking plan in your end user license agreement accompanying the tracking software, and also in your privacy policy. Should you feel confident that you've covered all the bases in terms of website legal compliance? "No", says the Federal Trade Commission, as it issued new rules in the Sears.com settlement.
  Published 12Aug2009, viewed 284 times

• 5 Rules Your SaaS Website Should Follow to Avoid Claims For False Advertising
  Many Internet entrepreneurs are lulled into sleep regarding potential liability for false advertising on their websites. They don't serve banner ads or engage in pay-per-click advertising - and because of this, they incorrectly believe they are exempt from rules regarding false advertising. Nothing could be more incorrect - and more dangerous in terms of exposure to legal liability.
  Published 27Jul2009, viewed 459 times

• 16 Things Every Website Absolutely, Positively Needs To Know About Website Legal Compliance
  I talk to a lot of owners of small websites -- entrepreneurs getting started with new businesses or re-doing existing sites on the Web -- and most of them have a profound lack of understanding regarding the scope of legal regulation they face. What's worse, most don't have any idea of their exposure to legal liability. Why is this? And what are the 16 important things you need to know about website legal compliance?
  Published 15Jul2009, viewed 289 times

• Sex, Lies... And a Dumb Mistake Your Blog Website Can't Afford
  Does your website incorporate a blog, forum, or listserv -- where users may post text or files? If so, are you liable if your users post defamatory materials about someone else?
  Published 21Jun2009, viewed 298 times

• Is Your SaaS Agreement The Only Website Legal Document You Need?
  I'm often asked questions about SaaS (Software as a Service) agreements. What I have to prompt SaaS webmasters to ask is - "Is my SaaS agreement the only website legal document I need?" To most Saas site webmasters, the answer may be surprising.
  Published 12Jun2009, viewed 247 times

• 2 Costly Mistakes For SaaS Sites To Avoid With Online Contracting
  The law of online contracting has become fairly well settled. This is good news for SaaS sites with online agreements such as Membership Agreements, Subscription Agreements, Content License Agreements, and the like. However, there are still costly mistakes to avoid, as these two recent cases illustrate.
  Published 21May2009, viewed 295 times

• Behavioral And Keyword-Triggered Ads -- Legal Update For Hot-Button Internet Advertising Issues
  Safire's New Political Dictionary defines "hot-button" as follows: word or issue that ignites anger, fear, enthusiasm, or other passionate response. Safire's definition fits two Internet advertising issues - behavioral and keyword ads - perfectly. Two developments in the first few months of 2009 show how these hot-button issues are developing, and how they may ultimately impact Internet advertising in a fundamental way.
  Published 13May2009, viewed 269 times

• Are Non-Clickers Bound By Your SaaS Agreement?
  It's well settled that website click-wrapped agreements presented on SaaS (Software as a Service) websites and ecommerce sites are enforceable against the clicker -- but what about users who access someone else's account without clicking to agree -- are they bound also?
  Published 23Apr2009, viewed 354 times

• SaaS And Ecommerce Sites - Don't Miss the May 1, 2009 Deadline
  On March 20, 2009, the Federal Trade Commission (FTC) published its latest guidelines for the Red Flags Rule. These guidelines significantly broadened the scope of the applicability of the Red Flags Rule. Many SaaS and ecommerce websites may now be surprised to learn that they are covered by the Red Flags Rule - and as a result they may face substantial liability for failure to comply.
  Published 12Apr2009, viewed 309 times

• SaaS And Ecommerce Businesses -- Are You Liable For Failure To Bind Your Service Providers?
  The Federal Trade Commission has made it clear that all sites that collect personal information -- including SaaS and ecommerce sites -- are required to implement 5 data security safeguards. In my practice, Safeguard No. 4 -- binding service providers that have access to personal information -- is followed least. This article provides practical 3 tips for compliance.
  Published 30Mar2009, viewed 336 times

• What's Behind Google's Requirement For AdSense Users To Modify Privacy Policies?
  In early March 2009, Google notified users of its new AdSense option, "interest-based advertising". With this announcement, Google also stated that "your privacy policy will now need to reflect the use of interest-based advertising". What's behind this announcement, what is "interest-based" advertising, and what modifications may be required for your privacy policy if you use this advertising option?
  Published 21Mar2009, viewed 380 times

• 2 Tips To Avoid Costly Liability For Visitors' Posts To Your Interactive Website
  What happens if a visitor posts a defamatory statement -- or statements that are in violation of specific statutes -- on your blog, forum, or in a classified ad on your site? Are you liable? Follow these 2 tips to avoid costly liability.
  Published 15Mar2009, viewed 294 times

• Is Your SaaS Agreement Enforceable -- Even Against Simba, The Agreeable Cat?
  I thought I'd seen and heard it all in my Internet law practice, until a client referred me to an interesting article about a kitty cat named Simba that walked across a keyboard and clicked on an online, click-through agreement (also known as a "click-wrapped" agreement). My client wanted to know whether the agreement was enforceable. My reply - against Simba the cat, or its owner who put Simba up to this? This is my analysis.
  Published 11Mar2009, viewed 242 times

• Ecommerce Websites -- 3 Tips To Avoid Liability For Actions of Your Online Resellers
  Recent case law confirms once again: if online agreements are presented properly to end-users, they're legally enforceable. Among other things, this means that important legal disclaimers and limitations of liability are legally enforceable. But what about liability exposure arising out of end-user contracts entered into by your resellers? Are you liable for actions of your resellers?
  Published 28Feb2009, viewed 276 times

• 3 Tips For Your General Audience Site To Avoid Tripping The COPPA Trap
  If you think that the Children's Online Privacy Protection Act (COPPA) applies only to websites that target children under 13, you're uninformed. Sony found out the hard way, and as a result Sony has agreed to pay a $1 million fine in settlement of a case brought by the Federal Trade Commission (FTC). You can avoid falling into this trap with your general audience site if you follow 3 simple tips.
  Published 22Feb2009, viewed 386 times

• Your Privacy Policy: Plan Ahead Or Your Opt-In and Customer Lists May Be In Jeopardy
  Recent cases teach us that the timing of personal information sharing policies in website Privacy Policies is critical. If you don't plan ahead, your most valuable assets -- your opt-in and customer lists -- may be jeopardized.
  Published 10Feb2009, viewed 339 times

• Use of a Competitor's Mark In Keyword-Triggered Ads - Legal Summary As We Begin 2009
  In the last four years or so, cases involving keyword-triggered ads have been hotly litigated. As we begin 2009, it's a good time to look back to see if the law has settled a bit.
  Published 27Jan2009, viewed 323 times

• 2009 Resolution -- Give Your Site a 10-Point Legal Check-Up
  Online businesses are now highly regulated, and there's substantial liability if you site's not legally compliant. It's early in the year, and it's time to fulfill your resolution to give your site a quick legal check-up. So, let's get started.
  Published 14Jan2009, viewed 271 times

• "Red Flag" Identity Theft Alert -- Is Your Site In The Cross Hairs?
  In October 2008, the Federal Trade Commission (FTC) announced that it is delaying enforcement of the Red Flag rules six months to May 1, 2009. Just who is covered (and therefore liable for failure to comply) is still somewhat confusing. However, if you're not sure you're covered, particularly if you're a SaaS site, you'd better check out the rules carefully in order to avoid liability for failure to comply.
  Published 13Nov2008, viewed 326 times

• Website Copy: Beware of Unintended Warranties If You Write Your Own Product Descriptions
  If you're like most small ecommerce businesses, you'll write your own product/service descriptions. In doing so, you will encounter a legal pitfall unknown to most... you may be creating unintended warranties that could result in substantial liability.
  Published 15Oct2008, viewed 317 times

• Website Terms of Use: Are Yours Enforceable? Does It Matter?
  Your website's Terms of Use govern all visitors to your site -- both casual visitors and registered customers. Terms of Use are typically referred to as "browse-wrapped" agreements because there is no requirement to click an I AGREE button. So, the question I'm often asked is... since the Terms of Use do not require a click, are they legally enforceable? And if not, why have them on the site?
  Published 30Sep2008, viewed 286 times

• Your Privacy Policy: Can It Improve Your Conversion Rates? You Bet!
  I'll let you in on a little secret that I've learned from some of the big players on the Web... you might be surprised to learn that they believe their privacy policies are a significant factor in improving their conversion rates. How can this be?
  Published 21Sep2008, viewed 438 times

• The Computer Fraud And Abuse Act -- Effective Weapon Against Disloyal Employees?
  Most ecommerce businesses are small businesses. They outsource a lot of their requirements; however, they may have a few very key employees. What happens to your business if a key employee resigns and then accesses your database and copies valuable proprietary information? What remedies do you have? The federal Computer Fraud And Abuse Act (CFAA) represents a relatively new weapon for employers against disloyal employees.
  Published 13Sep2008, viewed 344 times

• Shrink, Click, Browse-Wrapped Agreements -- What Does It All Mean?
  The terms -- "shrink-wrapped", "click-wrapped", and "browse-wrapped" -- are in widespread use. They describe certain types of contracts, past and present. Originally, these agreements were used solely for the licensing of PC software. Now, they're used for a wide range of online transactions. What do these terms mean, and what's their legal significance?
  Published 19Aug2008, viewed 383 times

• Website Behavioral Ads May Be Cool But Beware Of Privacy Concerns
  If you're a small ecommerce business, you know that virtually anything that provides significant increases in conversion rates will get a lot of attention. Behavioral ads promise just that -- higher conversion rates than conventional contextual ads -- so they've been getting a lot of attention lately. Before you take advantage of this opportunity, you should evaluate the risks.
  Published 16Jul2008, viewed 327 times

• User Generated Content (UCG) Presents Big Advertising Oppoutunity For Small Online Businesses
  User generated content (UGC) is a rapidly growing phenomenon on the Internet. Generally, UGC refers to various kinds of media content produced by regular, every-day people (as distinguished from traditional media producers). But now UGC has moved into online advertising -- and it's a great opportunity for small online businesses, but there's a catch -- claims for false advertising.
  Published 12Jul2008, viewed 321 times

• CAN-SPAM Act Updates -- New Email Rules For Multiple Senders, Opt-Outs, And "Send-To-A-Friend"
  Commercial email is one of the most significant -- if not the most significant -- marketing tool of small ecommerce websites. For this reason, it's a good idea to stay current with the CAN-SPAM Act's email rules. In May, the Federal Trade Commission (FTC) approved several new rules for purposes of clarifying CAN-SPAM's requirements. Here's an easy-to-read summary of these important developments that affect all ecommerce websites.
  Published 08Jul2008, viewed 347 times

• Website Advertising: 2 Legal Traps To Avoid When Writing Your Own Copy
  If you're like most small ecommerce businesses, you're likely to write your own marketing copy. Be aware that this is a highly regulated area that could result in substantial liability. I've boiled most of the regulations into 2 basic traps you must avoid.
  Published 23Jun2008, viewed 367 times

• CAN-SPAM: "No Harm, No Foul" -- 4th Circuit Passes on Trivial Violations
  The federal CAN-SPAM Act permits the sending of unsolicited email advertisements under certain conditions. One condition is that header information in the email should not be "materially false or materially misleading". What does this mean, and if you make a "technical" mistake in an email header, are you strictly liable under CAN-SPAM?
  Published 22Jun2008, viewed 299 times

• Intellectual Property: Why "Borrowing" Web Content Is A Really Bad Idea
  There's some graphics or content (or even website legal documents) on the web that you like... there's no copyright notice associated with it. You'd like to take it and incorporate it into your site, right? It's so tempting, but DON'T do it! Here's why.
  Published 18Jun2008, viewed 305 times

• Ecommerce Sites: Beware of 3rd Party Cookies - Are Google Analytics Users In Privacy Breach?
  To be successful, ecommerce sites require information about site visitors. One method of collecting this information is often referred to as using 3rd party cookies. If you use 3rd party cookies, are you aware of the privacy concerns, and will you be liable for a privacy policy breach?
  Published 14Jun2008, viewed 320 times

• SaaS, Membership, and Subscription Agreements -- How To Avoid Unenforceable Amendments
  If you're like most small ecommerce businesses, you'll need to amend your Customer Agreement from time to time. You might want to add a new membership option... or add a clause for a money-back guarantee, just to name a couple of examples. If you don't follow the guidelines of this recent case, your amendments are likely to be unenforeceable.
  Published 13Jun2008, viewed 343 times

• Do You Own - And Control Your Domain Name? You May Be Surprised!
  Do you own your domain name? And do you control it to the exclusion of others (including your website developer)? All too often, website owners are lax in nailing down ownership and control of valuable domain names, and as a result, are often required to litigate these issues costing them thousands. The case of Dawson v. Brandsberg illustrates these costly mistakes and how to avoid them.
  Published 18May2008, viewed 389 times

• Email Marketing: Are You Liable For Your Affiliates' CAN-SPAM Violations?
  How you build and use your email list involves the federal CAN-SPAM Act of 2003 (CAN-SPAM). If you market via email, you're probably generally familiar with DAN-SPAM's requiements. But what about your affiliates? Are you liable if they violate CAN-SPAM when marketing your products or services?
  Published 17May2008, viewed 401 times

• How To Save Time And Money Drafting Your Own Legal Contracts... With Confidence
  Would you like to save time, money, and aggravation by drafting your own legal contracts... including your website contracts? Powerful, automated drafting tools are empowering entrepreneurs to write first drafts of business contracts that closely fit their business needs. Here's how you can do it.
  Published 13May2008, viewed 375 times

• 5 Tips For Enforceable Membership, Subscription And SaaS Agreements
  Your customer agreements -- membership, subscription, SaaS agreements -- are a critical part of your overall website legal compliance system. If they're unenforceable, your critical disclaimes and limitations of liability will also be unenforceable. One key to enforceability is the way they're presented on your site. This article explains the 5 keys to enforceability.
  Published 18Apr2008, viewed 334 times

• Blog Sites Beware: Liability Lurks In Bloggers' Postings
  Serious liability exposure lurks for bolg sites. Whether liability for copyright infringement for bloggers' infringing posts or defamation liability for bloggers' defanatory statements, the stakes are high... and most blog sites are unaware of the risks! This article explains the hidden danger and how to avoid it.
  Published 14Apr2008, viewed 415 times

• Privacy & Data Security: Follow FTC Guidelines... Or Suffer The Consequences
  Privacy and data security are explosive liability issues for small ecommerce businesses. In the Life Is Good case, the Federal Trade Commission (FTC)provided 5 data security guidelines the FTC expects ALL sites to follow. You may be surprised to learn that documenting compliance is just as important as compliance itself.
  Published 08Apr2008, viewed 358 times

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