The Other Canned Spam 

Posted by BL Speer & Associates Saturday, March 24, 2012 2:24:00 PM

by Brenda L. Speer

If you get email, then you get spam, also known as junk email, unsolicited bulk email or unsolicited commercial email. Whatever it’s called, I think we all agree it’s a pain.

On January 1, 2004, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, also known as the CAN-SPAM Act, took effect. The CAN-SPAM Act is federal law and, therefore, it preempts state laws (for the most part) regarding junk email.

The CAN-SPAM Act applies to email senders and email initiators and regulates the manner in which and to whom commercial emails may be sent.

A “sender” is one who sends a message advertising or promoting a product, service, or Internet website: For example, sending an email advertising a book for sale.

An “initiator” is one who originates or transmits, or procures the origination or transmission, of such a message: For instance, a bulk email transmission service provider, like Constant Contact, who may send out’s email.

A “commercial electronic mail message” is defined as: any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).

Transactional or relationship messages are specifically excluded from the CAN-SPAM Act. Transaction or relationship email messages are permissible if the email is not primarily for advertising, and there is a prior connection between the sender and recipient. Prior connections exist in situations such as:

- Transaction confirmation, such as for an online purchase;

- Warranty or product information provided to the recipient regarding a previous purchase;

- Notification to the recipient regarding changes in or information about an existing account;

- Employment relationships; and Delivery of goods or services.

A commercial electronic mail message must comply the following requirements:

1) No false or misleading header information (the digital trail identifying the sender);

2) No misleading subject headings; Must be identified as an advertisement;

3) Must include a valid physical postal address and a functional return email address for the sender; and

4) Must provide clear and conspicuous notice of a recipient’s opportunity to decline to receive further messages from the sender and an opt-out feature by which to do so.

After reading these requirements, you’re probably thinking that’s nice and all, but you get commercial emails all that time which don’t comply. What can you do about it? Unfortunately, not much. The Act doesn’t provide for a private, civil cause of action. Violations of the Act may be enforced by the Federal Trade Commission, or by the state attorneys general and other state agencies or officials. The only private party that can bring a civil action against a spammer is an Internet access service provider. In egregious violations of the Act, the US Justice Department has the authority to bring a criminal action against a spammer.

We can take some heart in the Act though, because there have been some notable lawsuits brought against spammers. In a civil case, MySpace sued a spammer who had sent 735,925 messages through hijacked MySpace user accounts and was awarded $223,777,500 in damages. In a 2008 Colorado criminal case, spammer Edward Davidson was sentenced to 21 months in prison and fined $714,139. In another 2008 criminal case in Washington, Robert Soloway, known by the dubious moniker “king of spam,” was sentenced to 9 years in prison. Evidently Mr Soloway is a slow learner, because in 2005 Microsoft sued him and won a $7,800,000 judgment against him.

Self-Help Measures

Here are some tips to get a grip on the spam that clogs your inbox:

- Implement spam-filtering software. Such software will block a lot of spam from ever getting to your inbox and funnel questionable emails to a junk mail folder.

- Block spam that makes it to your inbox. It’s a chore, but take the time to flag spam as junk email and block the sender’s email address and/or domain against future delivery. That’s how filtering software gets educated as to what’s junk and what’s not, thereby increasing it’s ability to block spam and never deliver it to your inbox.

- Use the bcc: field. When you send an email to multiple recipients, use the bcc: field to enter their addresses. The bcc: field blocks the addresses from the view of the recipients and helps keep those addresses out the hands of email harvesters. Every time you forward the latest joke to your friends and you use the to: field instead, eventually, those addresses continue downstream and wind up in the hands of email harvesters who then send you spam.

- Delete addresses when forwarding. See above. If you leave the addresses in the original email and forward it on, then those addresses are visible to the recipients, live on and are vulnerable to harvesting.

- Unsubscribe. If you get unwanted email through a commercial email transmission service provider, such as Constant Contact or iContact, then use the unsubscribe function. This flags your email address in the sender’s database and prevents emails from that sender being sent to you in the future through that service provider. I use iContact and know that when someone unsubscribes, his or her email address is no longer available for me to use when sending email through iContact.

- Opt out. When making an online purchase or other transaction, read the fine print accompanying the order or request form. Usually there is an option check box to opt out of future communication that is not related to your transaction. Take advantage of this easy, initial opt-out opportunity; it’ll spare you from receiving unwanted email and having to expend time and effort to opt out later.

- Don’t Respond. Every time a spam recipient responds to the email or clicks through to a link in the email, the spammers are encouraged to continue. Unfortunately for all of us, people out there in cyber-space are responding and the spam keeps coming.

- Drop out. Hang back in the 20th century, stick to snail mail and skip email. Just kidding! I can’t imagine life now without email and the Internet. How did we ever get anything done in the olden days?

© 2009 BL Speer & Associates

Hey! They Stole My Idea 

Posted by BL Speer & Associates Saturday, March 24, 2012 2:10:00 PM

by Brenda L. Speer

You’ve probably had this thought cross your mind at some point in your life. Perhaps it was when you were watching late night TV and found yourself subjected to an infomercial (probably one loudly pitched by Billy Mays). There on the small screen, larger than life, was your idea for the Fantabulous Thingamabob! Proof that your idea was a good one and a money maker, but now it’s too late for your dreams of grandeur to materialize.

When it comes to intellectual property law, ideas don’t count for much. Why? Because ideas and concepts are not protectable in and of themselves. Rather, legal protection extends to the tangible expression of ideas and concepts. For example, having the plot for The Great American Novel in your head is an idea. The written novel is the tangible expression of that idea. This tangible expression of creative human endeavor is known as intellectual property.

Intellectual property is protected by patents, trademarks, copyrights and trade secrets. What’s a trade secret? A trade secret consists of business information that: (1) has commercial value; (2) provides an actual or potential economic advantage over others, and (3) is maintained in confidence. Confidentiality is the key element. The trade secret owner must take appropriate measures to protect and maintain his proprietary information in confidence.

Unless your idea has been reduced to tangible expression and afforded legal protection under patent, trademark, copyright or trade secret law, as may be applicable, then your idea is up for grabs and may be used freely by others. Loose lips sink ships, so if you have a valuable idea, then you’d better keep mum and protect it.

Unlike patents, trademarks and copyrights, trade secrets are not protectable by a registration. Trade secrets are protected by contract and will endure so long as the information is kept confidential or the contract ends, whichever comes first. The terms “non-disclosure agreement” or “confidentiality agreement” are commonly used to refer to contracts that govern trade secrets, or proprietary or confidential information. Once the beans are spilled, whether or not due to the fault of the trade secret owner, the trade secret may be dead and the confidentiality of the information may not be recoverable depending on the severity of the spill. The remedy for the owner is to sue the bean spiller for breach of contract and damages. A lawsuit also may be brought against a potential bean spiller if the owner has good cause to fear an unauthorized release of the confidential information.

Although one’s word may have been one’s bond in the Old West, these days reliance on an oral promise of confidentiality is not only foolhardy, but also extremely unlikely to hold up in court. If you have important, sensitive information to protect, then you must have written non-disclosure agreements in place with every recipient of that information, both within and without your company, including employees, suppliers, business partners, manufacturers and the like.

Trade secret protection can be very powerful if properly employed and maintained. The Coca-Cola formula is the quintessential trade secret and it is zealously guarded and enforced. You may recall the news story of two Coca-Cola employees who offered to sell trade secrets to Pepsi Cola. Pepsi knew better than to go down that path and reported them to the FBI. Both of these people are serving time in federal prison and had to pay $40,000 each in restitution to Coca-Cola.

As illustrated by the Coca-Cola incident, misappropriation of a trade secret is egregious and can subject an unauthorized discloser or an unauthorized recipient to state and federal penalties both civil (monetary damages, attorney fees and costs, an injunction) and criminal (prison).

It is a good idea to, and I strongly recommended that you do, protect your valuable brain children as trade secrets when appropriate. However, as those former Coca-Cola employees found out to their chagrin, trafficking in trade secrets is not a good idea!

© 2009 BL Speer & Associates

Blah, Blah, Blog 

Posted by BL Speer & Associates Saturday, March 24, 2012 2:07:00 PM

by Brenda L. Speer

The term blog is derived from the word weblog, meaning an online or web-based journalistic log. A blog is typically focused on a particular topic and posts are usually around 200 words.

If you already blog or are considering blogging, then you may want to know:

Question: What legal issues are associated with a blog?

Answer: The same legal issues that apply to any published form of communication.

On the flip-side, a blog also receives the same freedom of speech and press protections as other publications. Here are a baker's half-dozen, key legal issues to bear in mind with regard to content posted on a blog.

I. Defamation – Stuff You Say About Others

Defamation is explicit or implicit injury to a person’s reputation caused by the publication of spoken or written words, or dishin’ dirt about others. There are two types of defamation: Libel (written or Literal) and Slander (oral or Spoken).

The law of defamation applies to both natural, living persons (human beings), and artificial persons, or existing entities (going-concern companies). Although it may be frowned upon in polite society, it is legally permissible to speak ill of the dead.

The level of protection a person is afforded with regard to defamation depends on who he is. The ascending order of protection among persons is:

Least Protection: Public Officials
These include elected officials, such as the President, sheriffs, senators, etc.

Some Protection: Public Figures
These include notable people in the public eye, such as celebrities, both voluntary (Britney Spears) and involuntary (Kato Kaelin).

Greatest Protection: Private Figures
These include average citizens, such as you (assuming you’re not a public official or public figure) and me. Everyone truly is the master of his or her domain.

The elements to be proven by a plaintiff in a defamation claim are:

1) Publication to one other than the person defamed; and

2) False statement of fact that is understood as:
    a) Being of and concerning the plaintiff; and
    b) Tending to harm the reputation of plaintiff.

If the plaintiff is a public figure, he or she must also prove actual malice. Companies may or may not be public figures and are judged by the same standards as individuals.

Expressing one’s opinion about a person, which may be unfavorable, is usually not defamatory. However, merely labeling a defamatory statement as an opinion does not remove it from the realm of defamation.

Although truth is an absolute defense to a defamation claim, proving it may be costly in money, time and emotion. My advice and if in doubt, remember what your mother taught you: If you can’t say something nice about a person, then don’t say anything.

II. Trade Libel – Stuff You Say About Products and Services

Trade libel, also known as product disparagement, is akin to defamation. Trade libel is a false statement that injures the business reputation of a company or the sale of a company’s products or services. A well-known example of trade libel is the woman who falsely claimed to have found a severed finger in her bowl of Wendy’s chili.

III. Right of Publicity – Stuff Identifying Others and Used by You

The right of publicity is the right to prohibit others from using your persona for commercial purposes. Your persona includes your likeness (what you look like and other identifying idiosyncrasies, such as hand gestures) and voice (what you sound like). An example of a commercial purpose is an implied endorsement; for instance, using your picture without your permission on product packaging, thereby implying that you are promoting the product.

Natural persons, both living and dead (through their estates and for a limited period of time), have a right of publicity. The right of publicity is not all-encompassing and does permit the use of another’s persona for purposes of reporting, scholarship and commentary.

The right of publicity is governed by state law and, therefore, varies from state to state. As a result of its celebrity population, California’s right of publicity laws are extensive and favor the individual, including long-dead stars.

IV. Right of Privacy – Stuff About Others Pried into by You

The right of privacy, also known as invasion of privacy, is the right to be let alone. Only living, natural persons have a right of privacy.

An invasion of privacy occurs when there is:

1) Public disclosure of private facts;
2) Portrayal of a person in a false light;
3) Physical intrusion into a person’s private space; or
4) Misappropriation of a person’s name or likeness (See above re: Right of Publicity).

V. Trademarks – Stuff That Identifies Goods and Services and Used by You

A trademark indicates the source or origin of a good or service. A trademark owner has the exclusive right to use his mark with his particular goods or services.

The purpose of trademark law is to protect against consumer confusion in the marketplace and prevents the use of someone else's trademark to sell competing goods or services. Accordingly, a non-commercial, non-misleading use of a trademark in content, such as for reporting, scholarship, commentary, or factually based product comparisons, is likely to be considered a legal, fair use of the mark.

Be careful not to use a trademark in a manner which may suggest an endorsement by the trademark owner of you or your blog.

VI. Copyrights – Stuff Created by Others and Used by You

Copyright protection applies to original works of authorship. Technically speaking, any use of another person’s text or images in your blog without permission is copyright infringement.

However, some uses are considered fair use and permissible, such as for purposes of criticism, comment, news reporting, teaching, scholarship, or research. The law of fair use is a beast unto itself and I won’t expound on it here.

Generally, a short quotation of another’s work is fair use. Determining whether use of an image is fair use is trickier and it’s best not to use another’s image. If in doubt, seek permission to republish the material.

VII. Trade Secrets – Stuff That’s Proprietary to Another and Used by You

A trade secret is business information that has commercial value which provides an actual or potential economic advantage over others, and is maintained in confidence. Trade secret rights are lost upon public disclosure of the information. When blogging about your company, your employer’s company, or another’s company, take care that you are not disclosing proprietary or confidential information.

© 2009 BL Speer & Associates

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