Google Reverses Ban on Porn on Blogger Sites

Censored by Peter Massas from Flickr (Creative Commons License)

Censored by Peter Massas from Flickr (Creative Commons License)

Last month Google announced an upcoming change in its terms of service that would ban all pornography from Blogger sites. (Blogger is Google’s blogging platform.) This change would have been retroactive and impacted some users who have used Blogger to post sexually explicit material for over 10 years. Users reacted hard and fast, saying that posting pornographic material on their sites is an expression of their identities.

Within days, Google made a second announcement saying that they won’t ban all porn on Blogger sites but rather they will be more diligent about their existing policy banned “commercial porn,” meaning porn that is posted online for significant commercial gain. If you have a Blogger site and you want to sexually explicit material, you’re required to mark those posts as “adult” so Google can put them behind an “adult content” warning page.

I found the initial announcement banning porn on Blogger puzzling. Why would Google, a company that serves an international community of amazing creative people, consider such a conservative policy change? I’m a huge advocate for preventing sexual victimization, child pornography, and revenge porn but those are very different issues than the voluntary creation of legal adult content, produced by adults for an adult audience. Blogger is a blogging platform so I assume most people have little or no financial gain from running their sites.

This is a topic where each person may have a slightly different belief regarding what is art and what is pornography based on personal and cultural differences. In the conservative U.S., a topless woman is considered explicit but in other countries, topless models (men and women) are used in mainstream advertising and anyone can go topless at the beach. Google made the right decision in regards to this by requiring everyone who uses Blogger to mark their material as “adult” and the consumers can decide for themselves what they’ll read and view and what they will block from their children’s access with parental controls.

Companies like Google that provide services to a worldwide audience have to decide how policies should be written, which appears to be a challenging task. I’m pleased to see in this instance that Google listened to its users and the culture of the internet in general and repealed this ban.

If you want to talk more about free speech, censorship, and the internet, please connect with me on Twitter, Facebook, LinkedIn, or send me an email.

Top Three Legal Tips for Dad Bloggers from Dad 2.0 Summit

Awesome Bo-Gos at the Dad 2.0 Summit 2015

Awesome Bo-Gos at the Dad 2.0 Summit 2015

I had an awesome time at Dad 2.0 Summit – an awesome conference for dads who blog. I was invited to the conference to hang out in the Knowledge Bar during the breaks to talk with people about the legal dos and don’ts when it comes to their blogs. One gentleman asked me what three tips I’d give to the conference’s audience. Here’s what I said.

1. Be Thoughtful about what Images you Use on your Site.
Unfortunately, a lot of people think they can use any image they find online as long as they give an attribution and a link back to the original. What you’re likely doing is committing copyright infringement and telling the artist what you did. I recommend getting permission from the person to use their image or only use Creative Commons images for your site. I only use images that come with the license that lets me modify and commercialize them.  For more information about this topic, check out this post and/or watch this video.

2. Register your Trademarks.
This is my soapbox issue for the year for bloggers, vloggers, and podcasters – register your trademarks! If you don’t, someone else can start using it, register it with the U.S. Patent and Trademark Office and they could essentially shut down your site. You’d have to decide whether to fight them for it or rebrand. It’s easier and cheaper to protect yourself by registering your brand first. Then that way you’ve secured your rights to your name, logo, and slogan everywhere in the U.S. For more information about this topic, check out this post and/or watch this video.

3. When you get Free Products or Write Sponsored Posts, Disclose It.
Federal law requires you to only give true and accurate reviews when you do product reviews and you must disclose when you are compensated for giving your opinion. You have to tell your audience when you get products for free, participate in campaigns for compensation, or have sponsors. This rule applies to blogs, review sites, and anywhere you post on social media when you’re compensated for doing so. For more information about this topic, check out this post.

The laws regarding blogging and social media are still developing so it’s important that you stay abreast of changes as they occur when they apply to you. I will do my best to create content on developments in social media and internet law. If you’re looking for a resource that reviews the laws that apply to bloggers, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can always send me an email if you ever have questions, and please stay connected with me on Twitter, LinkedIn, Facebook, and YouTube.

If I don’t see you before then, I look forward to re-connecting with you at Dad 2.0 Summit next year!

Does Your Business Need Cyber Liability Insurance?

Guilty Viewing Pleasures: Hackers by Ingrid Richter from Flickr (Creative Commons License)

Guilty Viewing Pleasures: Hackers by Ingrid Richter from Flickr (Creative Commons License)

Anthem Health Insurance was victim the latest cyber attack to hit the news. Approximately 80 million customers’ health records were compromised by this security breach. When you hear about these hacking stories, do they make you wonder about your company’s security system? Do you assume that you probably have nothing to worry about because hackers are only interested in big companies like Target?

I attended a workshop last month about cyber liability insurance where the presenter said that a 2011 study revealed that 95% of all credit card breaches were against small businesses. We only tend to hear about the security breaches involving bigger companies but any size company could be at risk. Data breaches can occur through hacking, theft by unauthorized access , employee errors, and stolen or lost paper or electronic files, laptops, smartphones, flash drives.

Any business that handles or stores private business, customer, or employee data should consider getting insurance to cover them if a data breach occurs. This data includes social security numbers, bank account information, credit card numbers, driver’s license numbers, and email address. Additionally, you should take a look at your company’s policies and procedures related to data security. Are you taking the following precautions?

  • Secure sensitive data
  • Restrict access to data
  • Dispose of data properly – i.e., wipe laptops before donating them, shred paper files
  • Use effective passwords
  • Use encryption and secure remote access
  • Make sure your employees understand how to protect data and why it’s important

There are many benefits of having cyber liability insurance. Your provider should offer risk management services to help prevent a data breach from occurring. If a breach occurs, they will can professional assistance for damage control and regulatory compliance as well as cover the response expenses for mailing notification letters, credit monitoring services, and public relations. Your cyber liability insurance policy can also cover your defense and liability expenses if you are sued because of the breach.

This is a serious issue that can affect any company that uses the internet for business or commerce. If you have a traditional business liability insurance policy, read the terms carefully; it may not cover cyber liability. If you need a cyber liability insurance policy, contact a cyber liability insurance specialist to discuss your needs and options.

If you have questions or want to chat more about these issues, feel free to connect with me on TwitterFacebookLinkedIn, or you can send me an email.

Man Convicted of Running a Revenge Porn Site – What This Means For You

Cell Block D by Sean Toyer from Flickr (Creative Commons License)

Cell Block D by Sean Toyer from Flickr (Creative Commons License)

Last week a San Diego court convicted 28 year-old Kevin Bollaert of 27 felony charges including identity theft and extortion for running multiple revenge porn websites. He could face up to 20 years in prison. Here’s how the sites worked: people would post nude photos of their former lovers (often with the victim’s name, city, and a link to their Facebook profile) and the victims could get the images removed, if they paid a fee. These sites have since been taken down.

Prosecutors described Bollaert’s sites as a business based on blackmail. At the trial, several victims testified that they were humiliated and faced other repercussions because their images were posted on these sites without their consent. This appears to be the first conviction for an operator of a revenge porn website, but hopefully it will not be the last. The article did not state whether any of the people who posted the revenge porn images in question have also faced criminal charges or civil lawsuits.

This case should serve as a warning to anyone who is operating a similar website. If you encourage people to post revenge porn and charging the people in the images to get them removed, there is now legal president that this is a type of extortion.

This is also a legal gray area. It’s one thing to create a platform where people can post images and stories on your site, activities that are often protected by the First Amendment and copyright laws; but the person creating the posts could cross the line into invasion of privacy, cyberharassment, and revenge porn depending on the material posted. Depending on the circumstances, the owner of the site could also face criminal or civil liability, but often times simply providing a platform is not enough to hold the site’s owner responsible for what other’s posts unless there is additional evidence that implicates them.

I’ve been getting more questions recently about people who are being threatened with revenge porn where the image or video hasn’t been posted yet. Sometimes I’m unsure if it’s a situation where the would-be poster is saying, “I’m going to post your nude photos online” or trying to use the images as way to manipulate the person by saying, “If you don’t do XYZ, I’m going to post your nude photos online.” I’m conversing with the Phoenix Police Department about this issue to better advise my clients who are in this situation.

If you suspect you’re the victim of revenge porn, call your local law enforcement agency. I do not blame the victims in these situations, but I caution people, especially young people to think before they create or send sexually explicit material. If any of this content is released on the internet, you have no control over who might see it, share it, download it and even if you can get the original removed, it could still be out there on other sites. When in doubt, don’t send naked selfies, take intimate photos in the bedroom, or create sex videos. If you’re thinking about posting revenge porn, don’t.

If you have questions or want to chat more about these issues, feel free to connect with me on TwitterFacebookLinkedIn, or you can send me an email.

Bloggers & Vloggers: Register your Trademarks!

Registered by tup wanders from Flickr (Creative Commons License)

Registered by tup wanders from Flickr (Creative Commons License)

Ever since I heard about the Turner Barr story in 2013, I’ve been on everyone I know – including recreational bloggers and the vloggers – to register their trademarks in at least their sites’ names with the U.S. Patent and Trademark Office (USPTO). If this isn’t on your to-do list for this year, take a break from reading this post and go add it right now.

For those of you who don’t know or don’t remember, Turner Barr started an awesome blog called Around the World in 80 Jobs where he writes and creates videos about his travel adventurers and how he works from place to place. It was a simple but brilliant idea. He didn’t register his trademark. I bet the thought never crossed his mind. I bet he never thought that another company would register the trademark “Around the World in 80 Jobs” and essentially shut down his site. Thankfully, Turner was able to resolve the situation in part by publicly calling out the people he suspected stole his idea. He has since registered the trademark for his blog.

When I saw this situation where it looked like another company ripped off an individual blogger’s idea and name for themselves and basically (temporarily) stole it out from under him by registering the trademark, I became scared for every person I know who has an amazing blog or vlog. I don’t want to see them in the same predicament. It also reminded me to be a diligent about reminding and re-reminding my clients who are startup entrepreneurs about the importance or registering their trademarks so they don’t end up in the Burger King situation.

This is the type of situation potentially where someone can steal your idea and you will have to fight to try to get it back. And it’s the type of situation that is easily prevented by registering your trademark first. Once you have a registered trademark with the USPTO, you can stop other people and companies from using a name that is confusingly similar to yours in your industry.

Compared to the heartache, headaches, and what you will pay a lawyer if you end up in a situation like Turner Barr did, filing at trademark application is cheap. The USPTO recently lowered their filing fees so if you did your application yourself (which I don’t recommend) it may cost you only $275. If you’ve never filed the trademark application before, I suggest you at least consult a trademark attorney in advance just so you understand the trademark process including what information you have to give the examining attorney to prove that you’re using your trademark. It may not be as expensive as you fear.

And just to show that I put my money were my mouth is and that the shoemaker’s children have shoes in this situation, I recently submitted a trademark application myself for my personal blog, The Undeniable Ruth. I want to be able to call myself “undeniable” for the rest of my life and this is the first step to ensuring that.

If you have questions or want to talk about your trademark needs, feel free to connect with me on TwitterFacebookLinkedIn, or you can send me an email.

Photos, the Internet, and the Law – FAQs

paparazzi! by federico borghi from Flickr (Creative Commons License)

paparazzi! by federico borghi from Flickr (Creative Commons License)

I get a lot of hits on my site from people asking questions about what they can and can’t do with photos that they get from someone else that’s sent to them, texted to them, or that they find online. In many cases, the person who took the photo (not necessarily the person in the photo unless it’s a selfie) is the copyright holder and so they have the right to decide when and how their photo will be copied, distributed, and displayed. If you want to use their photo, you need their permission. If you want to own the copyright, they have to give it to you in a written and signed contract.

Let’s look at some of the more common and interesting questions I get. (Of course, any situation involving the legalities of using a particular photo is fact dependent and you need to consider the specific circumstances. These cases are often governed in part by state laws so you have to look at what rules apply to you.)

May I Post Someone’s Photo on the Internet without Consent?
If we’re talking about a situation where you want to know if you can take a photograph of another person and post it online, the answer is often “Yes.” If you’re the photographer, you’re usually the copyright holder so you get to decide where your work is displayed. However, if you want to make money off the photo or use it for a commercial purpose, you often need the person’s consent.

If were talking about a situation where you’re not the photographer and you want to use another person’s photograph, you need that person’s permission to use their work.

What if I Illegally used Someone’s Photo but I had Good Intentions?
The law often cares about what you did more than your intentions. In many cases it doesn’t matter that you didn’t intend to hurt anybody or that you didn’t know what you’re doing was illegal.

If Someone takes a Photo of Me and They Don’t Delete it, Can I Sue?
It depends. Remember you have no expectation of privacy in public so if you’re just upset that a photo was taken and they don’t use it to harass you, make money, or otherwise violate your rights, there is often little you can do about it.

What are the Laws about taking Photographs of People on Private Property?
You would have to look at what laws apply in your state, but typically the property owner or manager sets and enforces the rules, including rules about photographs. Be mindful when you go into businesses or attend events that there may be a notice posted that informs you that by being on the property, you are consenting to being photographed and the property owner can use those images however they want without needing any additional consent or payment of compensation to you.

Can You be Sued if You Post Someone’s Picture Online if They Sent it to You in a Text Message?
The law treats photos taken by cell phones the same as other photographs. If someone sends you a picture in a text, you have permission to look at it. It doesn’t give you permission to send it to other people or posted online without the person’s consent. Be very careful if this is a situation involving a nude or intimate photo because the depending on the person in the photo’s age, it could be child pornography. Additionally, several states have passed criminal laws against revenge porn.

What if Someone took a Picture off my Facebook Profile and put it on Theirs?
When you post a photograph on Facebook, the “Share” function implicitly gives permission to anyone who has access to the image to share it according to the settings of the site. If it’s a situation where somebody downloads your photo or takes a screen shot that include your photo, and then posts it to their profile or somewhere else online, that is likely of violation of your copyright rights.

Is it Illegal for a Family Member to Post Pictures of You on the Internet?
It depends. The law applies equally to family members as to other people. If it’s their photograph, meaning they are the copyright holder, there may be little you can do unless posting that image somehow violates one of your rights. If you don’t like that someone is posting images of you online, hopefully they will respect you enough to remove them upon request.

As I said before, cases involving photographs are governed by federal and state laws, so if you have a legal question in this arena please consult a copyright attorney in the your community for assistance. If you believe that you might be the victim of a crime that involves a photograph, please call your local law enforcement agency.

If you want to talk about this issue further, please connect with me on TwitterFacebook, or LinkedIn. If there is a specific situation you want to discuss, please send me an email.

Arizona Revenge Porn Law Suspended

Photo by Devon Christopher Adams; Concept by Devon Adams & Sara Santiago; Model: Sara Dobie Bauer (Image used with permission)

Photo by Devon Christopher Adams; Concept by Devon Adams & Sara Santiago; Model: Sara Dobie Bauer (Image used with permission)

Last week, U.S. District Judge Susan Bolton, at the request of the Arizona Attorney General’s Office and the American Civil Liberties Union (ACLU), called for the enforcement of Arizona’s “revenge porn” law and legal proceedings related to it to be put on hold. The law was suspended so Arizona’s legislature can examine the law’s verbiage and narrow it so that it only targets people who are distributing revenge porn.

Here’s what the law says is illegal based on the original verbiage:

It is unlawful to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure. (Arizona Revised Statute § 13-1425)

As written, revenge porn is a Class 5 Felony (punishable by at least 6 months’ imprisonment and up to $150,000 fine), unless the person in the image or videos is recognizable, then you’ll be charged with a Class 4 Felony (punishable by at least 1 year in jail and up to $150,000 fine).

This law came under fire by bookstores and newspapers which could be accused of violating this law. To commit a crime, you have to engage in the actions with the mindset as stated in the criminal statute. Therefore to commit revenge porn in Arizona, you have to intentionally post or offer a video or image of a person who is naked or having sex without that person’s consent. Based on this, selling an art book that contained a photo of a naked person could be revenge porn depending on the circumstances even if the store it didn’t know that the author didn’t get consent to use the image.

Judge Bolton has basically sent the Arizona legislature back to the drawing board to revise this law. Perhaps they’ll revise it to change the mindset from “intentionally” to “knowingly” or “maliciously.”

Does this mean that revenge porn is legal in Arizona for the time being? No. It means that people won’t be charged or prosecuted under this law, but Arizona has other laws you could be violating like cyberharassment if you post revenge porn.

The Arizona legislature will be back in session in January. Hopefully it won’t take them too long to update this law so it will only target the real criminals.

If you believe you’ve been the victim of revenge porn, please call the police in your community. If you’re interested in more information about your legal dos and don’ts online, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Yahoo Taking Advantage of Creative Commons with Flickr Wall Art – Hope they Don’t Screw it Up

1404 Phoenix Zoo-59 by Devon Christopher Adams from Flickr (Used with Permission)

1404 Phoenix Zoo-59 by Devon Christopher Adams from Flickr (Used with Permission – Devon & I have a standing agreement about using his work.)

My friend and amazing photographer Devon Christopher Adams tipped me off about Yahoo’s announcement that people can buy Flickr Wall Art of Creative Commons images from Flickr . If Yahoo does this right, it’s a brilliant business move. If they do it wrong, I hate them.

When a photographer posts their images on Flickr, they can designate whether they are restricting all copyright rights (“all rights reserved” aka don’t use my work without ask my explicit permission first) or attaching a Creative Commons license to it. A Creative Commons license means anyone can use the photographer’s work as long as you follow the rules of the license. For example, I often use Creative Commons images on my blogs but I only use photos that come with the license to modify and commercialize them. This allows me to crop the photo and to use it for business purposes – like a blog post on my law firm’s website.

If Yahoo only uses images for its wall art product that come with the license to commercialize them, then Yahoo already has permission to print these images onto paper or canvas and sell them, as long as they follow the other rules of the license.

Every Creative Commons license I’ve ever seen requires giving the copyright holder an attribution for their work. (Always give credit where it’s due!) I would hope that Yahoo would put the attribution on the front of the image – in a lower corner, so anyone who sees it can know who created the image. If that’s not possible (and good luck convincing me it’s not possible), at least put a non-removable label or notice on the back of who the copyright holder is and a URL to the original image on Flickr. If they don’t give an attribution as the license requires, they could be committing copyright infringement and could face a cease and desist letter, a bill, or a lawsuit.

I’m a huge advocate of copyright holders, especially in the arts community. I think a lot of photographers aren’t given the credit they deserve because many people assume they can replicate a photographer’s work with their smart phone – until they try to do it and they see how much skill it really takes.  Photographers constantly have to deal with people stealing their work online. It’s so wonderful to see them becoming more savvy about their legal rights.

I hope Yahoo is diligent about giving photographers the credit they deserve and respecting when a photographer changes the license on their Flickr account to only allow non-commercial uses. This won’t impact a person’s ability to own wall art of it prior to the license being changed; but Yahoo should stop selling it if the artist doesn’t want the company making money from it.

I hope Flickr Wall Art becomes an avenue for photographers to get exposure for their work in ways that will create new opportunities for them and that they won’t feel like Yahoo is taking advantage of them. If done properly, whoever at Yahoo who came up with this idea deserve a muffin basket for seeing this business opportunity.

Copyright and the internet is a murky area of law, and one that is still evolving. If you want more information about this topic, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Who to Ask for Permission to Use a Photo

What is a Real Image?  by puuikibeach from Flickr (Creative Commons License)

What is a Real Image? by puuikibeach from Flickr (Creative Commons License)

I had the pleasure of speaking at TechPhx over the weekend and fielding a lot of questions about how the law applies to blogging and podcasting, especially copyright, trademark, and privacy issues. The big take-home lesson surrounding copyright is usually “get permission” to use a photo on your site by using images from Creative Commons or asking the copyright holder for permission to use their work. (I’ve never had anyone tell me “no.”)

But what do you do if there’s an image you want to use and you can’t tell who the copyright holder is to ask permission?

I would start by evaluating the situation where I found the photo and contact the website administrator if it’s on a website or the profile owner if it’s on a social media site and say something like, “This picture is really beautiful. Who took the photo?” or “Where did you find this photo?” I probably wouldn’t ask, “Who is the copyright holder?” because a lot of people don’t understand copyright law and they think that owning a photo or having a copy of the file means they own the copyright, when they don’t.

I saw a situation where a publication asked a person if they could use some of the photos she posted on her social media site in an upcoming edition and she said “yes.” Unfortunately, that person wasn’t the copyright holder and she didn’t understand that she didn’t have the authority to give such permission. The publication thought they did everything right but because they didn’t verify they had permission from the copyright holder, they had a bit of a mess to fix once the photographer learned what had happened and informed the publication that they used his work without his permission.

Another tactic I might use if I wanted to find a copyright holder is run the photo through the Google Image search engine to see where else the image is available online. That might reveal the original source.

Here’s a video with more information about how to determine who is the copyright holder or whether is in the public domain.

Legal Side of Blogging Book CoverIf you can’t determine who the copyright holder is to ask permission to use their work, you may want to ask yourself how important it is to use that particular image and whether a similar image that is available under Creative Commons.

If you want more information about how copyright law applies to blogging and social media, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Avoid Copyright Infringement in your Social Media Posts

+ I collect old cameras + Land camera 1000 w/ polatronic 1 {b} by PhotKing from Flickr (Creative Commons License)

+ I collect old cameras + Land camera 1000 w/ polatronic 1 {b} by PhotKing from Flickr (Creative Commons License)

The other day I smiled when I saw a friend put a post on Facebook that included a Creative Commons attribution. He was the person who taught me how important it is, just from the perspective of respect, to get permission before posting another person’s work on your social media page. This was before I studied and fell in love with copyright.

Now, it warms my little lawyer heart to see someone respecting copyright.

And I finally have time to read Gary Vaynerchuk’s book Jab, Jab, Jab, Right Hook, which is filled with helpful information on how to market your business and excellent demonstrative case studies. One of his lessons is to use each platform to suit the needs to the users. So if a site is visually-focused, like Facebook or Pinterest, you want to create posts that have images that will provide users value and hopefully they’ll share them. His book has great examples of how companies are doing this effectively and what habits you shouldn’t emulate.

This is when the red flag went up for me.

If a company’s marketing department created a photo, there’s no problem with copyright. But if a company is using someone else’s photo (because companies don’t just have to talk about themselves online), they have to deal with the question of whether they have permission to use the image in question.

A lot of companies appear to be thoughtful about making sure they are using their own photos or finding images via Creative Commons for their website or blog. However, they don’t apply the same standards to their social media posts. If you’re doing this, and pulling images from other site without getting permission from the copyright owner, you could be setting your company up to be accused of copyright infringement and face a cease and desist letter, a DMCA takedown notice, a bill, or possibly a lawsuit.

Legal Side of Blogging Book CoverI’ve been inspired by people who use social media effectively and find amazing images to incorporate into their posts. I hope to create more content on social media that’s worth sharing. If you’re in my boat, please make sure to use images you own or use Creative Commons. When I use Creative Commons, I only pull images that come with a license that let me modify (aka crop them) and commercialize them. And even on social media, give your photographer the attribution. You may be legally obligated to do it, and it’s also a sign of respect for their work.

If you need an effective legal resource written in layman’s terms on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.