"Using Internet in Ministry - Legal Issues and Trends" : "Using Internet in Ministry - Legal Issues and Trends" Presented to the Internet Evangelism Coalition Annual Meeting, Chicago, September 14, 2005 by Thomas C McThenia, Jr.
Legal Counsel/President’s Staff of Campus Crusade for Christ
© Campus Crusade for Christ 2005
Overview: Where We are Headed : Overview: Where We are Headed Making and Using Intellectual Property in Internet Ministry
Navigating in Changing Legal Seas – Legal Trends
Data Protection, File Sharing and Peer-to-Peer
Internet Technology and Practices
Time for your Questions, and possibly, answers.
Using the Internet in Ministry Building Movements in Cyberspace : Using the Internet in Ministry Building Movements in Cyberspace Broadcasting Information and Content.
Connecting Individuals and Communities.
Active “high touch” ministry.
Platform for other technologies.
Protestant churches (57%) now have a website. (68% increase since 2000).
61% of Protestant churches integrate video content into their worship services.
Church Technology Adoption Explosion : Church Technology Adoption Explosion From Barna Group, September 12, 2005, http://www.barna.org/FlexPage.aspx?Page=BarnaUpdateNarrow&BarnaUpdateID=199
What is Intellectual Property? : What is Intellectual Property? Definition: A collection of legal rights that provides control of the availability and use of skills, creativity, resources and technology and gives the innovator, owner, or licensee incentives, rights and competitive advantage.
Qualities: intangible, borderless, replicable, different value propositions.
What Types of Intellectual Property Do You Use in Internet? : What Types of Intellectual Property Do You Use in Internet? Copyrights (JESUS film) Provides incentive for creative works
Trademarks (Campus Crusade for Christ, AIA, Shield)
Acts as indicator of quality and origin
Patents: CCC U.S. Pat. No. 6,693,648 for “Pointer interactive apparatus”.
Trade Secrets/Confidential Information.
Rights of Publicity: (Use of Dr. Bright’s name, pictures on websites).
Information Property: privacy of data (donor or employee personal information).
Why Do IP Rights Matter in Internet Ministry? : Why Do IP Rights Matter in Internet Ministry? Our Internet Activity Competes with Commercial Entities.
Respect Commercial IP Rules.
IP Rights are Increasingly Recognized and Enforced by Governments and Organizations.
Real criminal and civil penalties follow IP violations.
Individuals have been fined up over $750 per song in suits over illegal music downloading.
The Public Is Demanding More Honesty and Disclosure from public businesses and non-profit organizations in wake of scandals like Enron.
Ministries are not immune and is a potential target.
We can present a strong witness by acting with integrity and honesty.
Guarding our reputation for integrity is paramount.
Benefits of Proper Respect of IP: : Benefits of Proper Respect of IP: Short-Term Benefits
Allows Us to protect, use and control distribution of our materials for uses consistent with our mission.
Consistent and reproducible message.
Helps differentiate Organizations from other groups.
Provides potential revenue source.
Provides means to bless other Organizations.
Long-term Benefits
Blessings of godly Integrity and reputation by honoring rights of others.
Blessings of Honoring the Lord and others as a matter of integrity and obedience:
“A just weight and balance are the LORD’s.” (Prov. 16: 11).
“They that deal truly are His [God’s] delight.” (Prov. 12:22).
1 Samuel 2:30 “For those who honor Me, I will honor, but those who despise me will be disdained.”
This includes IP Law!
Slide9 : Big Idea #1: Making, Using and Distributing Intellectual Property in Furtherance of Your Mission: (i.e., Winning, Building, and Sending)
Copyright 101 : Copyright 101 How Do you Get a Copyright?
Grant of Copyright: Under the U.S. Copyright Law, a copyright is bestowed on the author at the moment an Original Work of Authorship is Fixed in a Tangible Medium of Expression (expression of idea) (Title 17 U.S. Code).
Registration provides additional rights including statutory damages and attorneys fees.
Berne Convention provides international recognition and protection.
Slide11 :
Literary Works:
Pamphlets (like this one); Books (we have published many); Magazines or articles in them (Worldwide Challenge) ; Print ads; training manuals; marketing brochures; This presentation itself
Songs, Music and Recordings:
Songs, sheet music, lyrics, jingles.
Pictorial and Graphic Works:
Photos, artwork, website content, graphical user interfaces.
Audiovisual and Multi-media Works:
Videos, film and other multimedia.
Characters, plots:
Dramatic Performance: Dance, theater.
Web sites: content, media, look and feel.
Software and Web Applications. What Copyrightable Works do You use in Internet Ministry?
Case Study: New Evangelistic Campaign Internet Ministries to Finger-painters : Case Study: New Evangelistic Campaign Internet Ministries to Finger-painters "It is a remarkable paradox that this most ancient of art forms relatively new and unexplored in the western world...“ Mary Ann Brandt, see http://www.fingerpainter.com/
“Reach the sandboxes of today, reach the leaders of the future.”
What do you need to know?
What does it take to launch a Ministry Website? : What does it take to launch a Ministry Website? Website design
Webhosting
Content Contributors
Web Applications
Web ministry participants.
IP at each step!
Who Owns the copyright? : Who Owns the copyright? The “Author” owns the copyright 17 USC § 102
Unless one of these exceptions applies
The author assigns the copyright in writing
The work qualifies as a “work for hire” 17 USC § 101
A “work-for-hire” is a work prepared in the normal course of employment
A “ work for hire” may also be a work specially ordered or commissioned with a written “work for hire” agreement.
Ownership of copyright is separate from ownership of object
Owning the object (a book, or a portrait) may does not give you the right to copy the object
What are the Rights of a Copyright Owner?: Exclusive Control : What are the Rights of a Copyright Owner?: Exclusive Control The copyright owner owns the exclusive right to control the following:
reproduction,
distribution,
preparation of derivative works from
display,
public performance and
digital recording of the copyrighted work (17 U.S.C. 106).
The copyright owner controls the right to restrict, permit or license use of each of these rights separately.
Derivative Work: “A work based on a previous work or collection of works”
Examples include: translation, film version of a book, sequel, dramatization, anthology, and many others.
CCC example might be the Four Spiritual Laws—CCC has the right to control the creation of any material incorporating the laws.
Slide16 : How do you pick a name or mark to in the Finger-painting Ministry?
What are Trademarks? : What are Trademarks? Anything Used With a Product or Service that Serves to Identify the Source of the Product or Service
Use Other’s Marks Properly- ® TM SM
TRADEMARKS
SERVICE MARKS
Categories of Trademarks (From Strongest to Weakest) : Categories of Trademarks (From Strongest to Weakest) FANCIFUL OR FICTITIOUS MARKS
Made-up Words - KODAK, EXXON
Strongest because they are distinctive and different from ordinary words
ARBITRARY MARKS
Existing words which have nothing to do with the product
FOSSIL for watches
SUGGESTIVE MARKS
Suggest something about the goods
OCEAN SPRAY for fruit juices
Categories (Cont.) :
DESCRIPTIVE MARKS:
Describe a characteristic of goods or services
HOT & CRISPY for frozen baked goods
Weakest Marks - difficult to protect against use by others
Mark must be used so long that the public associates the word and your specific product
GENERIC TERMS:
Can NEVER be a Trademark because they are the commonly used word for the product or service - SHREDED WHEAT, SUPER GLUE Categories (Cont.)
What Qualifies as a Trademark Besides a Name? : What Qualifies as a Trademark Besides a Name? Colors
UPS and “Brown”
Sounds
The chimes on Intel Computer commercials
A specific design/script
The “Reese's Peanut Butter Cup” lettering
Shapes
The shape of Goldfish crackers
Shape of a Coke bottle
Characters
Kellogg’s “Tony the Tiger”
Trademark infringement: Likelihood of Confusion : Trademark infringement: Likelihood of Confusion The legal test for Trademark Infringement is the likelihood of confusion by consumers.
Product Disputes:
Shredded Wheat: No infringement because
the boxes of cereal looked different enough to
prevent confusion. (Kellogg Co. v. National Biscuit Company, 305 U.S. 111 (1938)
Goldfish Crackers: Infringement because the
Goldfish cracker was an established, famous mark,
and the introduction of a similar cracker diluted the
the Pepperidge Farms trademarked and could
confuse consumers. (Nabisco, Inc. v. PF Brands, Inc.,
50 F.Supp.2d 188 (S.D.N.Y 1999)).
Non-profits are not exempt from infringement liability.
Christian Science Bd. Of Directors v. Robinson, 123 F. Supp. 2d 965, 969-70 (W.D.N.C. 2000), aff’d 259 F.3d 209 (4th Cir. 2001).
How to pick good marks : How to pick good marks Select fanciful, arbitrary or suggestive marks
This will increase your ability to use the mark exclusively.
Do not use generic or descriptive marks.
Avoid descriptive terms like International, Network, Global, Ministry.
Search and clear trademarks before use.
Internet searching (Google).
Free search at uspto.gov TESS search.
Consider the class of goods and services with which mark is used (i.e., printed publications, software, charitable services).
If your mark has not been used in your category, you are in a better position.
Two charities with the same name will create TM problems; a charity with the same name as lumber company probably will not.
Contact Legal Counsel early to help select, search and clear.
Registration is by Country or region (EU Community Mark).
Trademark Piracy / Dilution : Trademark Piracy / Dilution Trademark Piracy
Trademark Piracy Prevention Act
Cybersquatting
Federal Trademark Dilution Act
15 U.S.C. 1125
Anticybersquatting Consumer Prevention Act
Public Law No. 106-113 (1999)
Uniform Dispute Resolution Policy for tackling Internet trademark piracy (Dec. 1999)
Domain Name Registration
Trademark and domain name searching.
Big Idea #2: Using Other People’s Intellectual Property in Ministry : Big Idea #2: Using Other People’s Intellectual Property in Ministry
What Types of Ministry Activities Could We Undertake? : What Types of Ministry Activities Could We Undertake? Incorporate into new product – (think “derivative works” from before).
Syndicate materials and products.
Display painting – live or on internet.
Sell Products through the Internet.
Response Center.
Using Someone Else’s Copyrighted Work (or other IP)? : Using Someone Else’s Copyrighted Work (or other IP)? Use of another’s copyrighted work requires:
Express or implied license or permission from the copyright owner to use the specific RIGHT
Unless the law grants exception
Fair use
Public Domain (age, dedication or government work)
You buy or get an assignment of the copyright; otherwise its . . .
Copyright infringement!
Copyright Infringement : Copyright Infringement Copying another’s copyrighted work without consent is copyright infringement and is ILLEGAL.
Standard for infringement: access and substantial similarity of the works.
Remedies for Infringement
Injunction (order to stop use)
Money damages to rightful owner
Impoundment and destruction of infringing works, and
Criminal penalties (jail and fines)
Who Owns Your Finger-painting Internet Ministry? : Who Owns Your Finger-painting Internet Ministry? #1: I paid a web-designer to design the sight and logos, but had no written agreement.
(Creative owns Copyright: You need a license to do anything more than what is done).
#2: Signed written agreement for content authoring that says Creative performs as a “work-for-hire” and/or assignment of copyright language.
(Ministry owns Copyright as work-for-hire or assignment agreement)
(Creative owns with US having only rights in license)
#3 My employee made IT.
(Generally, WE own as work-for-hire if in scope of employment)
#4: Jane who works for us in accounting draws as a hobby.
(Depends on scope of employment or Organizational IP policy)
#5: Contract with finger painting artist with language that “to use the finger-painting in its current form for display on the Internet in the United States during 2005.”
What Rights did WE get from Artist #5? : What Rights did WE get from Artist #5? A Limited license of:
Non-exclusive license “to use the finger-painting in its current form for display on the Internet in the United States during 2005.”
WE cannot legally use the painting for anything else. Lesson: Always think of future uses in original license!
License limits matter: When free lance writers licensed their articles only for publication in a periodical, and the publisher then stored the periodical in an electronic database, a court found that the publishers violated copyright law! Tasini v. New York Times Co., Inc., 206 F.3d 161 (2nd Cir. 2000)
Address IP ownership upfront and in writing as “work-for-hire, assignment or appropriate license.
Basic Elements of a License : Basic Elements of a License A license only includes the scope of rights granted by the license:
Scope of use rights.
Territory.
Non-exclusive vs. Exclusive.
Licensee.
Duration.
Fee and Royalties.
Fair Use Doctrine : Fair Use Doctrine Fair Use: statutorily allowed copying of copyrighted materials for limited purposes Title 17 U.S.C. 107
- not an affirmative permission, but a defense to a claim of copyright infringement.
- Fair Use analysis is conducted on a case-by-case, fact specific analysis – results are unpredictable.
- Helpful resources: http://fairuse.stanford.edu http://copyright.iupui.eduuspto.gov www.copyright.gov
How does Fair Use Work? : How does Fair Use Work? Fair Use is determined in each case by fact-specific weighing of four factors:
the purpose and character of your use
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market.
Fair Use Checklist: http://copyright.iupui.edu/checklist.htm
Common Misconceptions about Fair Use. : Common Misconceptions about Fair Use. It must be fair use because . . .
We are giving it away free or only covering our costs (find case where not fair use even if give it away?
We are a ministry.
We are a non-profit organization.
The work is that of a Christian, they wouldn’t mind. Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110 (9thCir. 2000).
We don’t have the money for a license.
Fair Use on the Internet? : Fair Use on the Internet? Playing background music from CD’s for three hours a day over 5 days at a Christmas conference? (Miniature golf vs. The Gap)
Kelly v. Arriba Soft Corporation, (9th Cir. July 7, 2003) Appeals court found thumbnail pictures and inline linking from Arriba from Kelly's website in Arriba's image search engine were fair use overturning District court that had found infringement.
Using Copyrighted Works in Internet Ministry : Using Copyrighted Works in Internet Ministry Determine type of work and use (scope of use and needed rights; territory, purpose, term).
Is the Work copyrighted? (duration, notice?)
Is the work a fair use, public domain or does it need permission or a license?
Start early and consider fees in budget.
Securing Permissions.
Address all rights and rights holders.
Include future expansion of rights.
Consider permission assistance groups and licenses.
(See http://copyright.iupui.edu/permsec.htm; http://copyright.iupui.edu/permhome.htm).
International “Fair Use” : International “Fair Use” The United States and the Philippines are the only countries with a fair use doctrine.
Fair Dealing in Common Law - enumerated list of causes for exemption.
Civil law countries have codified similarly specific and narrowly drawn exceptions.
The most important version of the test is that included in Article 13 of TRIPs. It reads,
Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.
Using Music : Using Music Displaying Lyrics:
Rights: Reproduction & Public Display.
Permission: music, author, publisher or CCLI http://www.ccli.com
Playing Music at an Event or on Internet:
Rights: Public Performance
Permission from BMI, ASCAP, SESAC
http://www.bmi.com; http://www.ascap.com; http://sesac.com
Using Music : Using Music Using Music as Background of Video
Rights: Derivative Work & Public Performance.
License: Synchronization License from artist or recording company.
Band Performing Another’s Song
Right: Public Performance
Permission from BMI, ASCAP, SESAC
*exception in worship services
Using Film, TV and Multi-media : Using Film, TV and Multi-media Film and TV: Derivative Work, public performance
Licenses: Not centralized and more difficult and expensive, some clip licenses from studios @ $3000 a clip
Film Clip license: CCVI and other clips license groups.
swank.com- website to obtain license for the public performance or viewing of a film.
Using union Actors under SAG issues limit rights and have additional fees.
Complex: need rights for everything you use.
Multi-Media Fair Use guidelines.
Specific detailed guidelines to using Multimedia (not law).
http://www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm
Using Photos in Ministry : Using Photos in Ministry Photographer owns the copyright absent assignment, work-for-hire or license
consider upfront work-for-hire or license agreement
Photo Subject holds rights of publicity
get release before use photo beyond consent.
consider children’s issues on Internet.
Gain right for all future uses from photographer and subject.
- e.g. Magazine may only have license for publication in magazine and not online.
Right of Publicity/ Marks : Right of Publicity/ Marks “I want to be like Mike”
“Just Do It”
Nike/AirJordan
Gatorade
Right of Publicity : Right of Publicity Protects name, voice, likeness, image or other identifying characteristics in commercial use.
Protected by state statutes (about 15 states) or common law protection.
California statute for commercial misappropriation provides, "any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner ... for purposes of advertising ... without such person's prior consent ... shall be liable for any damages sustained by the person." Cal. Civ.Code § 3344(a).
Example: Bette Midler won $400,000 from Ford for similar unauthorized singer.
Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)
Right of Publicity : Right of Publicity Obtain Appropriate Releases:
Obtain from everyone in film/video/radio.
Make sure you have all people and possible, future rights needed.
E.g., Radio Guest/Conference Speaker Release; Photo participant release; Photographer release
Privacy Rights: separate from commercial use (invasion of privacy could apply to putting someone’s picture on the Internet).
Libel and slander protect an individual against the dissemination of falsehoods about that individual.
Using Copyrighted Works on the Internet in Ministry : Using Copyrighted Works on the Internet in Ministry Using Content from outside Sights:
Linking versus archive or copying of content.
Read the terms of use on the site as to what you can do with material from that site.
Consider whether the website operator has the rights to grant you permission. Consider fair use carefully with GCO help.
Get Permissions as needed - GCO office can help.
The Internet: an Excellent Medium for Copyright Infringement : The Internet: an Excellent Medium for Copyright Infringement Monks
Printing press – movable type
Content on YOUR Internet Sites : Content on YOUR Internet Sites Digital Millennium Copyright Act: 17 USC § 1201, et.seq.
Imposes a duty on an ISP to remove known copyrighted material from their website. Consider what you allow others to post to Your Sites!
EU Copyright Directive or EUCD, similar to the DMCA (March 10, 2004)
Online Copyright Infringement Liability Limitation Act (OCILLA), a portion of the Digital Millennium Copyright Act known as DMCA 512 or the DMCA takedown provisions, is a 1998 US law that provided a safe harbor to online service providers (OSPs, including ISPs) that promptly take down content if someone alleges it infringes their copyrights.
CCC needs to monitor content on its sites and provided by third parties.
The Music Empire Strikes Back: Suing Software Companies : The Music Empire Strikes Back: Suing Software Companies Why sue Software Companies?
Phase I: Napster
Phase II: Aimster
Phase III: Grokster
Lawsuits against individuals
By June of 2005, over 12,000 suits had been filed
The individual has little chance of winning, and the minimum damages per violation is $750
Many individuals settle for between $3,000- $10,000; judgments at trial are often much higher.
File Sharing: The Future : File Sharing: The Future The Big Picture
Grokster means that the most common file-sharing technology will have to shut down or adapt.
Technological change means there will be more technologies in the future that can be used to infringe copyright.
Legal, paid music downloading is becoming more common.
Lawsuits against individual infringers will continue.
For Ministies
Be sure staff and students are not sharing files illegally (Students are common targets of Music Industry lawsuits)
Ministries need to address content-sharing websites they operate.
Issues in development, use and hosting of sites and content. : Issues in development, use and hosting of sites and content. See Myths above. Must own IP. : get written work-for-hire or IP assignment from web designers.
Be aware of confidential or personal information, IP and publicity rights on projects or Websites.
Consider use and license fees for content in project budget. Start early in obtaining rights.
What type of Content
Articles, books, written pubs
Pictures, movies, TV
Audio, music
Links
Whose Content?
CCC materials;Third-party licensed; Created for CCC; linked
Creative Commons: : Creative Commons: www.creativecommons.org
offers free license agreements which may be modified according to what rights the author wishes to share
Options for licensing
Allow either commercial, or only non-commercial, use of your work
Allow/disallow modifications of your work
Require/don’t require credit to you
Allow/disallow various types of uses
Special categories of licenses
Protection of CCC Copyrighted Work : Protection of CCC Copyrighted Work Registration of copyright in works and web pages within 3 months of publication
Notice Requirements
© Year of first publication Name of owner of copyright
© 2005 Campus Crusade for Christ, Inc.
www.copyright.gov Government website with simple forms and explanation of copyright registration.
Trade Secrets and Confidential Information : Trade Secrets and Confidential Information Trade Secret: Arises with valuable information or “know-how” that gives a business a competitive advantage and is maintained by reasonable measures of secrecy.
Confidential Information: Information with disclosure or use restrictions either of CCC, an individual or third party.
Types:
Personal and Sensitive data (employees, donors, etc)
Donor lists and data
Marketing methods and evangelistic strategies
Formulas and manufacturing processes
Software
Proprietary personal and financial information
Trade Secrets & The Internet : Trade Secrets & The Internet Ease of information leaks
Consider computer system security
Reasonable secrecy
Posting restrictions: Make sure that use, posting and dissemination of confidential information does not breach any Non-disclosure obligations
Non-Disclosure Agreement (NDA)
Development of websites and software
CCC receiving, disseminating
One-way and mutual
Email and security
What to Consider When Allowing Others to Use Your IP. : What to Consider When Allowing Others to Use Your IP. Contact legal counsel early.
Need proper organizational permission to license.
Consider relevant factors in license and get it in writing.
Revenue models can raise Tax/non-profit issues such as Unrelated Business Income (UBI)
Anticipate disputes and how to resolve them.
Crediting the source must adequately identify the source of the work, full bibliographic description (including author, title, publisher, and place and date of publication).
The credit and copyright notice information may be in a separate section of the educational multimedia project except for images incorporated into the project.
Control of Use of CCC Marks on Internet (and otherwise) : Control of Use of CCC Marks on Internet (and otherwise) Mark holder must maintain control over:
the placement, size and use of its mark on the website
how framing is used on website
whether to require exclusivity on a site so that marks from competing services may be blocked at TO option.
Exercise control over any use of CCC marks.
Trademarks with Merchandise: logowear (CCC t-shirt) vs. message wear (“I Still Do” t-shirt).
Terms of Use of Website : Terms of Use of Website Standard Terms of Use for all CCC sites.
Purpose of an acceptable Terms of Use Policy or Agreement
Clarify the ground rules of use.
Define scope of users’ rights and privacy expectations.
Establish reasonable and specific rules and regulations.
Describe and provide legal remedies for misuse.
Depends on what your site does? (Activity)
Posted or downloadable content.
Forum/chat, interactive.
Personal information.
Donations, sale of products.
Publicity, endorsement, links.
What can a user do?
Access, subscription, IP and software?
Data Privacy: Personally Identifiable Information : Data Privacy: Personally Identifiable Information The Privacy Controversy: self-regulation versus legislation/US versus Europe
Guidelines for Self-Regulated Privacy Policies
Adoption /Implementation of a Privacy Policy
Notice and Disclosure
Choice / Consent
Data Security
Data Quality and Access
Do you store, process, transmit personal info? (Whose, where?)
Third-Party Enforcement Programs
Privacy Seal Program (Trust-e, BBBonline)
Consumer Complaint Resolution
Education and Outreach
Privacy Policy : Privacy Policy Source: Online Privacy Alliance (What is it? See www.privacyalliance.org/facts/)
www.privacyalliance.org/resources/ppguidelines.shtml
1. Adoption and Implementation of a Privacy Policy
An organization should adopt and implement a policy for protecting the privacy of individually identifiable information.
Take steps that foster the adoption and implementation of effective online privacy policies by other organizations
2. Notice and Disclosure
An organization’s privacy policy should be easy to find, read, and understand
Policy should be available before individually identifiable information is collected or requested
Policy should state what information is being collected and why
3. Choice / Consent
Individuals should be given the opportunity to exercise choice regarding how individually identifiable information collected from them online may be used when such use is unrelated to the purpose for which the information was collected
4. Data Security
Organization should take reasonable measures to guard against loss, misuse, or alteration of individually identifiable information
5. Data Quality and Access
Organizations should take reasonable measures to ensure that personal information is accurate, and may be corrected, where necessary
Privacy Policies - components : Privacy Policies - components What personal information is being gathered about user
How the information will be used
Who the information will be shared with, if anyone
Choices available regarding how collected information is used
Safeguards in place to protect the information from loss, misuse, or alteration
How user can update or correct inaccuracies in his or her information.
Provide mechanism for consent, access and correction.
Remember it is a promise that you will be held to!
EU Data Protection Directive : EU Data Protection Directive Deals with collection, transmission, processing and storage of personal and sensitive information. Came into force in October 1998
Seeks to eliminate national barriers to the transmission of data among 15 member states by ensuring high standards of data privacy
Data transmissions to a non-EU country are permitted only if it has adequate standards of protection (US not adequate protection)
Safe harbor Provisions
U.S. Laws Relating to Data Privacy : U.S. Laws Relating to Data Privacy 1. Children:
Children's Online Privacy Protection Act of 1998 (COPPA); COPPA: 5 U.S.C. Sect. 6501-6506:
FTC Children's Online Privacy Protection Rule, Final Rule: 16 CFR 312:
2. Computers and Computer Networks
Computer Fraud and Abuse Act: 18 U.S.C Sect. 1030 et seq.:
Electronic Communications Privacy Act (ECPA)
ECPA / Wiretap Act: 18 U.S.C Sect. 2510-2522:
ECPA / Stored Communications Act: 18 U.S.C. Sect. 2701-2711:
3. Financial Institutes
Fair Credit Reporting Act: 15 U.S.C. Sect. 1681 et seq.:
Gramm-Leach-Bliley Act (GLBA)
GLBA/ Disclosure of Non public Personal Information: 15 U.S.C Sect. 6801-6810:
GLBA / Fraudulent Access to Financial Information: 15 U.S.C Sect. 6821-6827:
CFR Parts 30, 208, 211, 225, 263, 308, 364, 568 and 570:
4. Health Care:
Health Insurance Portability and Accountability Act of 1996 (HIPAA) HIPAA: P.L. 104-191:
Standards for Privacy of Individually Identifiable Health Information: Final Rule: 45 CFR Parts 160 and 164:
5. USA PATRIOT ACT: P.L. 107-056:
U.S. Laws Relating to Data Privacy : U.S. Laws Relating to Data Privacy 1. Children:
Children's Online Privacy Protection Act of 1998 (COPPA); COPPA: 5 U.S.C. Sect. 6501-6506:
FTC Children's Online Privacy Protection Rule, Final Rule: 16 CFR 312:
2. Computers and Computer Networks
Computer Fraud and Abuse Act: 18 U.S.C Sect. 1030 et seq.:
Electronic Communications Privacy Act (ECPA)
ECPA / Wiretap Act: 18 U.S.C Sect. 2510-2522:
ECPA / Stored Communications Act: 18 U.S.C. Sect. 2701-2711:
3. Financial Institutes
Fair Credit Reporting Act: 15 U.S.C. Sect. 1681 et seq.:
Gramm-Leach-Bliley Act (GLBA)
GLBA/ Disclosure of Non public Personal Information: 15 U.S.C Sect. 6801-6810:
GLBA / Fraudulent Access to Financial Information: 15 U.S.C Sect. 6821-6827:
CFR Parts 30, 208, 211, 225, 263, 308, 364, 568 and 570:
4. Health Care:
Health Insurance Portability and Accountability Act of 1996 (HIPAA) HIPAA: P.L. 104-191:
Standards for Privacy of Individually Identifiable Health Information: Final Rule: 45 CFR Parts 160 and 164:
5. USA PATRIOT ACT: P.L. 107-056:
General Internet Privacy Issues : General Internet Privacy Issues The Privacy Controversy: self-regulation versus legislation/US versus Europe
Guidelines for Self-Regulated Privacy Policies
Adoption /Implementation of a Privacy Policy
Notice and Disclosure
Choice / Consent
Data Security
Data Quality and Access
Do you store, process, transmit personal info? (Whose, where?)
Third-Party Enforcement Programs
Privacy Seal Program (Trust-e, BBBonline)
See www.bbbonline.org/privacy/sample_privacy.asp
Consumer Complaint Resolution
Education and Outreach
California Privacy Law : California Privacy Law Requires all commercial Web sites or online services that collect personal info from CA residents to:
Conspicuously post their privacy policies on their websites
Disclose in the privacy policies the types of personally identifiable information collected. Identify any third parties with whom the info may be shared
Give a description of the process for changes and process of change notification.
Identify the effective date of the privacy policy
http://emailuniverse.com/ezine-tips/?California-Online-Privacy-Law&id=1199&cat=resources
Cal. Privacy Act – Personal Info : Cal. Privacy Act – Personal Info A first and last name.
2. A home or other physical address, including street name and name of a city or town.
3. An email address.
4. A telephone number.
5. A social security number.
Any other identifier that permits the physical or online contacting of a specific individual.
http://emailuniverse.com/ezine-tips/?California-Online-Privacy-Law&id=1199&cat=resources
Your privacy policy must identify the types of personally identified information that you will be collecting, such as:
The CAN-SPAM Act : The CAN-SPAM Act (Public Law No. 108-187, was S.877 of the 108th Congress, Dec. 16, 2003,
1. Defines spam 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)." Exempts "transactional or relationship messages."
2. Four Part Requirements:
No false or misleading header info.
No deceptive subject lines.
The email MUST give recipients an opt- out method.
A commercial email must be identified as an advertisement and include the sender’s physical postal address.
3. FTC enforces. If a user opts out, a sender has ten days to remove the address.
4."aggravated offense," including harvesting, dictionary attacks, Internet protocol spoofing, hijacking computers through Trojan horses or worms, or using open mail relays for the purpose of sending spam.
Protecting Children in the Age of the Internet : Protecting Children in the Age of the Internet Concepts
Notice / Awareness
Choice / Consent
Access / Participation
Integrity / Security
Enforcement / Redress
Children’s Seal Programs
Private organizations give approval to websites who meet certain privacy qualifications
Most common programs are by TRUSTe and the Better Business Bureau
Protecting Children Online: Federal Requirements : Protecting Children Online: Federal Requirements Federal Government Intervention and legislation
Child Online Protection Act (COPA)
The Supreme Court ruled this law an unconstitutional limit on Free Speech in 2002
Child Online Privacy Protection Act (COPPA) 15 USC § 6501
Congress passed a revised, narrower version of COPA .
If your website is:
directed at children under 13, or
knowingly collects or maintains personal information about children under 13,
COPPA requires:
Verifiable prior consent from parent or direct notification of the nature and intended use of this information
Parental ability to review and amend their child’s information, and to prevent future collection
Provide warnings and explanation, careful with hyperlinks
Avoid collecting more info than necessary
Domain Name Issue : Domain Name Issue Domain name registration: consider trademarks (others and potential to register) in selecting domain names. yahoo.com, cnet.com
Domain names can act as trademarks
Cyber-squatting and Domain name disputes:
UDRP adopted by ICANN
Anti-cybersquatting Consumer Protection Act (1999) proscribes registration or use of a domain name if two conditions are met
The domain name is identical with or confusingly similar with a distinctive or famous mark.
There is a bad faith intent to profit from the goodwill of that mark
Example—someone tries to create a site called www.mcdonalds.com Even if the site was not already taken, registration would be denied
Internet Practices. : Internet Practices. Framing: users of framing technology should seek written consent and approval to extent possible from advertisers and others whose copyrighted material may be blocked or transport to linked sites.
Metatagging: Initial interest confusion – can be confusion to use trademark in metatag unless common word (Playboy Enters., Inc. v. Netscape Communications Corp., 55 F. Supp 2d 1070 (C.D. Cal. 1999)
Linking and Deep Hyperlinking: Facts are not protectable, but formatting is protectable. Seek permission. Ticketmaster Corp. v. Tickets.com, Inc. 2000 U.S. Dist. Lexis 4553, at 4 (C.D. Mar. 27 2000)
http://cyberlaw.stanford.edu/about/cases/
Uniform Computer Information Transactions Act (UCITA) : Uniform Computer Information Transactions Act (UCITA) Similar to UCC, but for software licensing, online access, and other transactions in computer information. Address fair use, reverse engineering, consumer protection and warranties, shrinkwrap licenses, and their duration as well as the transferability of licenses. Only passed in VA and MD.
USA Patriot Act : USA Patriot Act
1. Section 215 and 216 allow judges to grant govt investigaors ex parte orders to look into personal phone and internet records on the basis of being “relevant for an ongoing investigation” rather than probable cause of 4Th Amend to US Constitution. Also look into library records for
2. Using the Act against computer fraud
Adam McGaughey, the webmaster of a fan site for the television show Stargate SG-1, was charged with copyright infringement and computer fraud. During the investigation, the FBI invoked a provision of the Act to obtain records from the site's Internet Service Provider. The USA PATRIOT Act amended the Computer Fraud and Abuse Act to include search and seizure of records from Internet Service Providers.
3. USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) [1] (U.S. H.R. 3162, S. 1510, Public Law 107-56)
Internet Ministry : Internet Ministry Liability for Internet Ministry
http://www.aascb.org/pdfs/Internet%20Counseling%20jan%2003.pdf#search='liability%20for%20internet%20counseling‘
Minors Issueshttp://www.naswdc.org/pubs/news/2001/01/web.htm
Legal Issues : Legal Issues Jurisdiction/Interstate Commerce
Liability
Duty to Warn and Protect
Copyright/Intellectual Property
Licensure
Privileged Communications
Relationship
http://www.wcet.info/Projects/laap/about/cybercounseling.ppt#272,12,Legal Issues
http://www.cswf.org/www/therapy.html
http://www.nbcc.org/webethics2
Ethical Issues : Ethical Issues Confidentiality
Informed Consent
Competence/Integrity
Effectiveness
Client and Counselor Identity
Misuse of Materials
Abandonment/Interruption of Services
Legal Agreements for Web Sites : Legal Agreements for Web Sites Creation of Web sites
Web Site Content Agreement (Licensing or Assignment)
Web Site Development Agreement
Web Site Authors Agreement
Software License Agreements
Use of sites:
Web Site Terms of Use/Users Agreement
Web Site Privacy Policy
Hosting and Maintenance of Websites
Web Hosting
Maintenance and Support
Non-disclosure Agreement
Agreements for Projects with Third Parties : Agreements for Projects with Third Parties Non-Disclosure Agreement
Bilateral; One way (CCC or Third party)
Consulting Agreement
Development Agreement (Joint or Third-Party)
Consider:
IP Ownership;
R&D costs and staged phases?;
Future modifications and improvements
Exclusivity (development phase, field of use and level of purchase).
Define Computer System & Software in RFP and for Development : Define Computer System & Software in RFP and for Development Design and Review Process: Specifications, performance criteria – functional specs, designs specs;
Milestones, schedule;
Deliverables/ Scope of Work/ Compensation;
Required third-party software – license rights;
Budget and funding. Include Key Contract Provisions –
Require Objections – Bind Bidder to Contract;
Intellectual Property – Make sure you Own/License what you create;
Non-compete;
Indemnities, warranties and limitations of liability.
Deliverables : Deliverables Software or Equipment Provided;
Equipment purchase, installation, startup;
Complete user documentation instructions;
A system description;
Source code listings;
Backup and Recovery Procedures;
Master Software Copy;
Any Other Items Needed;
Software Agreements : Software Agreements Software Agreements.
Shrink Wrap License Agreement;
Software license (CPU, network or ASP)
Software Maintenance and Support Agreement;
Software Escrow Agreement.
Software reseller or distribution of CCC products.
Development and Integration Agreements:
Software Development Agreement;
Software Consulting Services Agreement;
Software Beta or Evaluation Agreement;
Computer System Development and Integration Agreement;
Web Site Development Agreement;
Internet Content Development or Licensing Agreement;
Network Development Agreement.
Cross-Cultural IP Training : Cross-Cultural IP Training China: Fortune Magazine, Nov. 2000,
“The inclination to copy is cultural. If imitation really is the highest form of flattery, then China has been the Land of the Laud for nearly 2,000 years. Counterfeiting is so ingrained that many Chinese view it as harmless – or at least not the same as stealing. For Chinese consumers, most of who can’t afford the genuine articles, an almost fetishistic obsession with Western brands is fueling the racket. Toss in a long history of foreign incursions, and copying has morphed into a sport.”
U.S. Suits against 250+ individuals downloading music.
Important to apply Biblical truth in face of cultural views.
Your Questions? : Your Questions?
CCC General Counsel’s Office
MC 3500
100 Lake Hart Drive, Orlando, FL 32675
407-826-2100
Tom McThenia: Tom.McThenia@ccci.org
407-826-2011 (o); 407-832-8393 (mobile)
Dennis Kasper: Dennis.Kasper@ccci.org
Carmen Pena: Carmen.Pena@ccci.org
Gwyn Marolis gwynh.marolis@ccci.org
407-826-2011
Don Ziel: Don.Ziel@uscm.org
The End : The End