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					            Term Paper
   Articles of Organization

   Business Plan

   Legal Analysis



                               1
    Articles of Organization
 Corporate Name
 Purpose Clause
 Capitalization
 Corporate Officers and Directors
 Fiscal year
 By-Laws


                                     2
        Business Plan
 Title Page
 Table of Contents
 Executive Summary
 Vision/Mission
 Company Overview
 Market Analysis
 Financial Plan
                        3
     Copyright Web Site
 Statutory benefits
 Limitations on statutory rights
 Statutory Damages
 Statutory Injunction
 Appropriate Form
 Filing Fees


                                    4
          Trademarks
 Corporate Name
 Domain Name
 Logo
 Advertising slogan




                       5
          Jurisdiction
 Where can the online business be sued?
 Not related to liability
 Can anything be done to avoid being
  sued in a foreign state or country?
 What is required for a court to have
  jurisdiction?


                                       6
        Motion to dismiss
 Non-resident defendant will bring the
  motion to dismiss
 Plaintiff must then prove:
    – state long-arm statute applies
    – satisfaction of the US Constitution’s “due
      process” clause



                                                   7
    Home Court Advantage
 Local law will apply
 Local law firm will defend the case
 local jury will be selected




                                        8
    General Jurisdiction
 Substantial
 Continuous
 Systematic - PRESENCE IN THE
  FOREIGN STATE




                                 9
       Specific Jurisdiction
   Minimum contacts
    – litigation arises directly out of the
      defendant’s activities
    – defendant purposefully availed itself to
      conduct business in the foreign state
    – foreign jurisdiction was reasonable and
      foreseeable


                                                 10
    Forum Selection Clause
 must be reasonable
 must be conspicuous
 must not work a hardship on the
  defendant
 courts generally will enforce them




                                       11
      Passive Web sites
 Courts in a foreign state generally do
  not have jurisdiction
 toll free number to order
 no direct solicitation in the foreign state
 merely transmits information
 Blue note case


                                            12
Traditional Notions of Fair Play
   and Substantial Justice
  D purposefully availed himself of the
   privilege of causing a consequence in
   the forum state
  the lawsuit arises from D’s activities in
   the forum state
  jurisdiction over D is reasonable



                                               13
     Privacy in Cyberspace
   Personal Information Stored in a
    Database
    – state statutes on privacy
    – common law privacy tort
    – Electronic Communication Privacy Act
    – FTC regulations (deceptive trade practice)



                                                   14
     Privacy in Cyberspace
   Employee use of Company e-mail
    – subject to pre-trial discovery and can be
      used by the government and plaintiff in a
      criminal case
    – employer’s monitoring of e-mail
    – company e-mail policy
    – Employer’s liability for employee’s improper
      use of e-mail
                                                 15
     Privacy in Cyberspace
   Employee use of WWW
    – non-business use
    – company policy
    – corporate culture
    – company liability for employee’s improper
      use of Web sites



                                                  16
    Privacy in Cyberspace
 Must have a Privacy Policy on every
  web site
 Certification of Trust E and/or BBOnline
  is a good idea
 Be aware of new national and
  international developments in privacy
  law

                                         17
Privacy in Cyberspace

             “You  have
              zero privacy-
              get over it”
             Scott
              McNaely -
              Sun
              Microsystem 18
     Privacy in Cyberspace
   EU Data Protection Directive
    – October 1998
    – data protection within EU Member States
    – Member States should permit transfers to a
      third country only if “adequate level of
      protection” exists
    – EU may block transfer of data if inadequate


                                               19
     Privacy in Cybersapce
   Massachusetts statutory privacy law

    – unreasonable interference with privacy
    – substantive interference with privacy
    – serous interference with privacy




                                               20
                  Copyright
   Federal registration in the USPO
    – copyrightable subject matter must be
      original works of authorship
          literary works
          musical works
          dramatic works-motion pictures & sound
           recordings
          choreographic works
          architectural works
                                                    21
           Copyright
 Original works must be FIXED in any
  tangible medium of expression
 it must be sufficiently permanent or
  stable to permit it to be perceived,
  reproduced … for a period of more than
  transitory duration
 a Web site meet that criteria and may
  be copyrighted
                                       22
Exclusive Statutory Rights
  under Copyright Law
 To reproduce the copyright work in
  copies
 to prepare derivative works
 to distribute copies to the public
 to perform the work publicly
 to display the work publicly


                                       23
Limitations on Exclusive Rights
   of the Copyright Owner
  Fair Use
  Express License to copy the work
  Implied license to copy (limited?)
  Public Domain - government documents
   and expired copyright works



                                      24
    Elements of Fair Use
 Commercial or non-commercial use -
  profit or non-profit?
 amount of the work copied in
  relationship to the whole (%)
 nature of the work copied- creative or
  informational?
 The impact of the copied work on the
  potential or actual value of the work
                                           25
    Theories of Copyright
       Infringement
 Direct infringer - the acting party that
  copies the work (may be unintentional)
 Contributory infringer- a person with
  knowledge of the direct infringement
  encourages it and provides facilities for
  that purpose
 Vicarious infringer- a person who has
  control over the direct infringer and
  makes a profit from the work              26
       Copyright Damages
   actual damages- must prove actual loss
    and the return of any profit made by D.
                  OR
   statutory damages-(judge’s discretion)
    – if intentional infringement no more than
      $100,000 for each particular work infringed
    – if unintentional- a minimum of $200 per
      infringed work
    – generally-$500 to $20,000 per work copied 27
            Trademark
   Lanham Act - any
    – word
    – symbol
    – device
    – sound - used to IDENTIFY & DISTINGUISH
      good from those from others



                                           28
    Trademarks Classified
 Generic marks - do not receive
  trademark protection
 Descriptive marks - no protection unless
  either INHERENTLY DISTINCTIVE or
  have acquired a SECONDARY MEANING
 Suggestive, arbitrary and fanciful marks
  are automatically inherently distinctive

                                         29
    Trademark Infringement
 Generally an IMMEDIATE LIKELIHOOD
  OF CONFUSION with consumers
 Generally between competing
  companies




                                      30
    Trademark Dilution
Fed. Trademark Dilution Act
 The trademark must be FAMOUS AND
  DISTINCTIVE
 no need for likelihood of confusion
 no need for competing parties
 famous trademark has been either
  BLURRED OR TARNISHED


                                        31
     Famous Trademark
 duration and extent of advertising
 geographical extent of the trading area
 degree of recognition of the mark
 whether the mark was federally
  registered on the principal register
 duration and extent of use of the mark


                                            32
       Dilution by Blurring
   Blurring-
    – over an extended period of time
    – the value of the famous mark is diminished
    – on non-competing dissimilar products
    – even though no immediate likelihood of
      consumer confusion



                                               33
    Dilution by Tarnishment
   The famous trademark has been
    associated with
    – an unwholesome
    – an unsavory
    – shoddy quality product (or Web site)
    – lack of prestige or quality of the product



                                                   34
                Patents
   Subject matter- BUSINESS METHODS
    – any new and useful process,.. or any new
      and useful improvement
    – an algorithm applied in a “useful” way, e.g.
      an accounting program that is useful
    – business methods- any new systematic
      way of organizing activities is potentially
      patentable (e.g. hotel reservations)

                                                 35
      Online Obscenity
A   category of unprotected speech
 Miller case “definition”
 state statutes may prohibit certain
  sexually explicit material
 law applies where the transmission
  is receives not where sent
                                    36
         Online Obscenity
   Miller case
    –community standard
    –work taken as a whole
    –average person
    –to be obscene has no literary,
     artistic or social redeeming
     value                            37
     Online Defamation
 Defamation  of character
 person or a business
 Published untrue statement
 BBS and chat rooms
 contributory liability of operator
  and Web site owner
                                   38

				
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posted:8/11/2012
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