e-MARKETING SOLUTIONS, Inc. | Professional Audits for Websites

Every person owning a website or designing a website for others needs a legal website audit for their protection! Why?

A legal website audit will make you aware of all of the legal issues concerning your website, whether your website complies with the law and what actions you must take if it doesn't. Not knowing this information can cost you money, time, your website and even result in a jail sentence!

Do you know the answers to these questions and the law relating to those questions:

Do you have copyrighted work on your website?

Do you even know if you have copyrighted work on your website?

Who owns your website?

Is your website the result of a "work for hire"?

Do you have a derivation of a copyrighted work on your website and does this violate the copyright?
   In Video Pipeline, Inv. V. Buena Vista Home Entertainment, Inc.

Do you have file sharing or downloadable files on your website?
   A&M Records, Inc. v. Napster, Inc.

Does your website retransmit infringing material over the Internet?
   Religious Technology Center v. Netcom On-Line Communication Services, Inc.

Is there shareware on your website and have you violated the terms of any shareware license?
   Storm Impact, Inc. v. Software of the Month Club

Are third parties allowed to post material on your website and what is your liability if infringing material is posted on your website?
   Enterprises, Inc. v. Frena

Can you be vicariously liable for someone else's copyright infringement?
   A&M Records, Inc. v. Napster, Inc.
   Sega Enterprises Ltd. v. MAPHIA

Have you contributorily infringed on your website?
   Sony Corp. v. Universal City Studios

Does your website comply with the Digital Millennium Copyright Act (DMCA)?
   Universal City Studios, Inc. v. Corley

Does your website contain a database and does it violate copyright law?
   New York Times Co. v. Tasini
   In re Literary Works in Electronic Databases Copyright Litigation

Does your website infringe on a trademark?
   Enterprises, Inc. v. Frena
   Sega Enterprises Ltd. v. MAPHIA

Is there contributory trademark infringement on your website?
   Inwood Laboratories, Inc. v. Ives Laboratories, Inc.

Does your website comply with the Federal Trademark Dilution Act?
   I.P. Lund Trading ApS & Kroin, Inc. v. Kohler Co.

Is your domain name in violation of the Anticybersquatting Consumer Protection Act (ACPA)? (Statutory damages of between $1,000 and $100,000 per domain name)
   Electronic Boutique v. Zuccarini
   DaimlerChrysler v. Net, Inc.
   Coca-Cola Co. v. Purdy

Has your domain name caused domain name confusion?

Are you a cybersquatter?
   Panavision Int'l, L.P. v. Toeppen
   Avery Dennison Corp. v. Sumpton,
   Garden of Life, Inc. v. Letzer

Does your website have improper spamdexing, metatag infringement or white on white text?
   Brookfield Communications, Inc. v. West Coast Entertainment Corp.
   Enterprises, Inc. v. Calvin Designer Label

Does your website have pop up ads and do they comply with the law?
   In re Gator Corp. Software & Trademark Litig.
   Wells Fargo & Co. v. WhenU.com.Inc.
   FTC v. Seismic Entertainment Productions, Inc.

Do the keywords and banner advertisements on your website violate trademark laws?
   Estee Lauder, Inc. v. The Fragrance Counter, Inc.
   GEICO v. Google, Inc.

Does your website violate trade dress protections?
   Two Pesos, Inc. v. Taco Cabana, Inc.
   Inwood Laboratories, Inc. v. Ives Laboratories, Inc.

Does your website comply with all laws regarding caching, linking, framing, bots and content aggregation?
   Kelly v. Arriba Software Corp.
   Ticketmaster Corp. v. Tickets.com, Inc.
   The Washington Post Co. v. TotalNews, Inc.
   Hard Rock Café Int'l Inc. v. Morton
   Enterprises, Inc. v. Universal Tel-A-Talk, Inc.
   Nissan Motor Co. v. Nissan Computer Corp.
   Universal City Studios, Inc. v. Corley
   EBay, Inc. v. Bidder's Edge, Inc.
   Register.com, Inc. v. Verio, Inc.

Does your website contain misappropriated trade secrets?
   DVD Copy Control Association, Inc. v. Bunner

Are portions of your website eligible for patent protection?
   State Street Bank & Trust Co. v. Signature Financial Group, Inc.

Are portions of your website subject to licensing contracts and have you complied with them?

Does your website exceed the scope of that license?
   Ticketmaster Corp. v. Tickets.com, Inc.

Are you in a state that has adopted the Uniform Computer Transaction Act (UCITA) and what does this mean for your on-line business transactions?

Is there music or video on your website and does it comply with the DMCA and Audio Home Recording Act (AHRA)?
   Universal City Studios, Inc. v. Corley
   321 Studios v. MGM Studios, Inc.

Does your website comply with the Telecommunication Act of 1996?

Does your website contain actionable defamatory material?
   Cubby, Inc. v. CompuServe, Inc.

Have you complied with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN SPAM ACT)? (Statutory fine of $2 million which may be tripled and up to 5 years in prison)
   America Online, Inc. v. Cyber Promotions, Inc.
   CompuServe, Inc. v. Cyber Promotions, Inc.

Do you collect data on your website? If so:

Have you complied with the EU Privacy Directive?

Have you complied with federal privacy laws?
• The Fair Credit Reporting Act
• The Electronic Funds Transfer Act
• The Child Online Protection Act (COPA)
• The Children's Online Privacy Protection Act (COPPA)
• Does your website obtain verifiable parental consent?
• The Computer Fraud and Abuse Act
• The Electronic Communications Privacy Act (ECPA)

   In re Pharmatrak Privacy Litig.
   In re Toys R Us, Inc. Privacy Litig.
   Supnick v. Amazon.com, Inc.

• The FTC Privacy Guidelines for Fair Information Practices in Consumer Transactions
   In re: GeoCities

Have you complied with state privacy laws?

Has your website violated privacy laws through placement of cookies?
   In re Toys R Us, Inc. Privacy Litig.

If your website has collected personal data on its users, have you provided adequate security, confidentiality, and integrity of that personal data?
   Guess, Inc., 2003 F.T.C. LEXIS 85 (2003)
   Microsoft, Inc., 2002 F.T.C. LEXIS 43 (2002)
   Eli Lilly and Company, 2002 F.T.C. LEXIS 22 (2002)
   In the Matter of MTS, Inc.
   In the Matter of Petco Animal Supplies, Inc.

Does your website comply with the Protection of Children from Predators Act (PCSPA)?

Does your website comply with the Child Online Protection Act (COPA)?

Does your website comply with the Children©–s Online Privacy Protection Act (COPPA)?

Does your website comply with the Communications Decency Act (CDA)?

Are you committing any Internet crimes?
Have you committed the following:
• Criminal Copyright Infringement
• Violation of the Computer Fraud and Abuse Act
   U.S. v. Morris
• Threats or stalking via the Internet
• Violation of the Economic Espionage Act
• Violation of the National Stolen Property Act
• Violation of the No Electronic Theft Act
• Wire Fraud

As a result of your operation of a website, what state would have jurisdiction in the event of a lawsuit?

Do you have Use Agreements for your website and do their terms protect your website?

Do you have Disclaimers on your website and are they adequate to protect your interests?

Do you have Representations and Warranties on your website and what is their legal effect?

Does your website have memberships and are the terms of the membership agreement adequate to protect you?

What are the Electronic Format Rights of your website?

Is there Tax Collection issues involved in your website?

Is there License issues for users of your website?

Are you aware of Online Insurance issues for your website?

Is your website registered and how do you determine if someone has infringed on your copyright?

This list is by no means exhaustive, but what this list does tell you is how easy it is to unknowingly violate the law or create problems for yourself.

In the copyright infringement case of v. Sanfilippo, the offending website owner provided and sold access to copyrighted photos owned by. First the court ordered a preliminary injunction, which meant that the owner could not use any of the photos on his website. The statutory penalties to be paid by the infringer to the copyright owner for each act of infringement are $500 to $25,000, which the Court, if it sees fit, may increase to $100,000. requested the maximum amount: $285,420,000! The Court didn't award that amount, but did award $3,737,500!

Of course, in addition, the infringer must stop using the copyrighted work and therefore, must redesign their website, another cost to consider. Copyright laws protect other types of works in addition to photos, so it's better to be safe than sorry. Now with the World Wide Web, it's much easier for a copyright owner to become aware of an act of infringement and to get justice.

The costs of making a mistake in the website world can be high.

Every successful person knows "an ounce of prevention is worth a pound of cure" and every successful person takes that "ounce of prevention."

Having a legal website audit is that ounce of prevention. Don't put yourself in the position of needing a "cure."


Marcia A. Miller is a licensed attorney of over 28 years of experience. She has taught computer law at
the graduate school level and has worked for over 10 years with computer professionals. She is aware of the legal issues involved in websites and how to solve those issues. During her lengthy career, Ms. Miller has litigated numerous cases involving complex and varied issues and thus brings to a legal web audit her knowledge of how to avoid litigation. In addition, Ms. Miller has served as an appellate administrative judge. This provides your legal website audit with an additional perspective of how your site will be viewed if any legal problem should ever arise.

Just as it's important to have a legal website audit, it's equally important to have that audit done by an experienced attorney.

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