(Part One, Overview of Rights Clearance Issues, includes chapters 1 and 2. What follows is an excerpt of Chapter 2, Checklist of Clearance Issues.)

Checklist of Clearance Issues

The following checklist can help you spot legal issues relevant to your activities as a cyber citizen. By necessity, the discussion with in the checklist is cryptic. The checklist refers you to subsequent sections of this book for greater explanation.

Is someone using your online content without your permission?

If someone uses your online content without your permission, your options include sending a cease and desist letter, submitting a takedown notice, and filing a lawsuit. (Section 3.8)

Did someone else construct your site for you?

If your employee created a portion of your website or other online work within the scope of his employment, you own the copyright in the online work as a work made for hire. If you retained a freelancer, the freelancer owns the copyright unless the freelancer signed a written agreement indicating otherwise. (Section 3.4)

Does your online work incorporate technology that you want to protect?

You may be able to protect it as a patent or as a trade secret. (Chapter 7)

Is the domain name you want unavailable?

If your preferred domain name is unavailable, your options include selecting another domain name or attempting to purchase the domain name from its current holder. If someone else’s use of the domain name violates your trademark, an additional option includes initiating a domain name dispute. (Section 5.3.1)

Have you been accused of using a domain name that violates a trademark?

If a trademark owner initiates a legal proceeding over your domain name, to be able to keep the domain name, you must demonstrate that one of the necessary elements for the trademark owner’s successful claim is not true. Depending on how the trademark owner pursues the claim, your successful rebuttal may be that your domain name is not confusingly similar to the trademark, that your use of the domain name has not been in bad faith, or that your use of the domain name is non-commercial. (Sections 6.4, 6.5, and 6.6)

Do you use music on your site?

Normally, unless the music is in the public domain or your use qualifies as a fair use, you must obtain a license to use the music. (Sections 8.3, 8.5, and 8.6) The license required to use music on the internet depends on whether you use the song, the sound recording or both and how you use them. (Section 8.10)

Do you mention people by name or discuss actual events in your online work?

You may use a person’s name in non-commercial contexts such as news reporting and commentary sites. (Section 8.2 and Chapter 13) When focusing on real people, you should consider privacy, publicity, and defamation laws. (Section 8.9)

Do you post original content on social networking sites?

While in most cases, you retain the copyright in your original content, most social networking sites take a non-exclusive license to use your content. (Chapter 10) If you incorporate other people’s material into you social networking postings, there are some best practices you should consider following. (Sections 12.3 and 13.2)

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(Part Two, Knowing Your Online Rights and Responsibilities., includes chapters 3 through 9. What follows are excerpts of Chapter 5, Selecting Your Domain Name and Chapter 9, Monitoring Your Relationships with and Obligations to Online Visitors.)

Section 5.3.1. Your Options If Someone Is Already Using the Domain Name You Want to Use

If someone has already registered the domain name you want to use, you have a few choices:

Choose Another Domain Name. Select another domain name that is available. You can creatively vary the domain name or use the same second level domain name with another generic top level domain such as .biz or .info. For example, if you desired the domain name www.AutoRental.com and discovered it was registered to another party, you might choose instead www.AutoRentals.com, www.IndianaAutoRentals.com, or www.AutoRental.info as appropriate for your purposes. However, you must be careful that your variation does not infringe any trademark rights of the earlier domain name registrant. See Section 5.5.3 for further discussion on this issue.

Buy the Domain Name. You can attempt to purchase the domain name from the person or organization that has registered it. Domain name purchase prices vary widely and are completely dependent on what the buyer and seller negotiate. Selling domain names has become big business. You may want to handle the purchase by approaching the owner directly or using a domain name broker.

Assert Your Rights in the Domain Name. If the other party’s use of the domain name is trademark infringement or cybersquatting, you can attempt to force a transfer of the domain name. See Chapter 6 for a discussion of domain name disputes.

Section 9.1. Online Privacy Policy

In a privacy policy, a website or online service explains to its visitors what information it collects from them, how it will use and secure that information, and whether it will share that information with any third parties. In most cases, websites are not required to post a privacy policy.

However, if you do post a privacy policy, you are legally required to honor the promises you make. The Federal Trade Commission (FTC) uses its authority to prohibit unfair or deceptive practices to enforce promises made in privacy policies. The FTC is especially sensitive to major modifications in privacy policies without adequate notice to or consent from your online visitors.

For example, suppose you collect personal information from online visitors such as email addresses and physical mailing addresses and your privacy policy states you will not share the information with any third party. Later you change your posted privacy policy to allow sharing such information in limited circumstances. You can not share the information of consumers whose information you collected while the previous policy was posted unless you get that consumer’s affirmative consent.

Exceptions to Self-Regulation. There are two notable exceptions to the standard of self-regulation of internet privacy:

Children under Thirteen. Websites that collect personal information from children under the age of thirteen must comply with the Children’s Online Privacy Protection Act (COPPA). The Federal Trade Commission takes COPPA very seriously and has levied fines of up to $1,000,000 on websites that were not COPPA compliant.

(Part Three, Engaging in Specific Online Activities includes Chapters 11 through 15. What follows are excerpts from Chapter 11, Blogs and Podcasts and Chapter 13, Fan Sites, Gripe Sites, and Parody Sites.)

Section 11.3. Blogging Anonymously

Under the First Amendment, you have the right to speak anonymously. This includes the right to blog anonymously. However, not all categories of speech are entitled to First Amendment protection.

Unprotected speech includes speech that violates another person’s rights. Anonymous internet statements can trigger lawsuits filed by individuals or companies for a range of claims including defamation, breach of employment or confidentiality agreements, misappropriation of trade secrets, and interference with a prospective business advantage. If you engage in unprotected online speech anonymously, a person harmed by your speech may be able to uncover your identity by serving a subpoena upon any service provider you use for blogging and internet activity.

Standards for Subpoenas. The person who seeks the identity of an anonymous online poster through a subpoena must prove that he has a valid claim against the anonymous poster. The standard to receive a subpoena for identification of an anonymous poster varies from state to state.

The anonymous poster must have an opportunity to oppose or quash the subpoena. This means someone must attempt to notify the anonymous poster that he is the subject of a subpoena request. Some states require the person seeking the subpoena to notify the anonymous poster. Such notification attempts typically include posting a notice on the blog, message board, or other internet location where the anonymous poster initially posted his objectionable statements. Sometimes the recipient of the subpoena request—which is typically an ISP or the operator of the forum on which the anonymous poster posted such as Yahoo or AOL—provides the notice.

13.4. Use of Trademarks and Celebrity Names in Commentary Sites

As a general rule, you may use trademarks in a commentary site provided that the use does not confuse consumers into incorrectly thinking the trademark owner sponsors or is affiliated with your site.

Celebrity Name as Domain Name. Some celebrities may have trademark rights in their name. Nevertheless, you should be able to use a celebrity name for a legitimate commentary site. See Section 6.9 for more discussion on domain name disputes involving celebrity names and personal names. See Section 12.6 for a related discussion of impersonating and using celebrity names on social networking sites.

Use of Trademarks as Domain Names for Criticism, Gripe and Parody Sites. Using a trademark as a domain name on a non-commercial website is generally acceptable and protected by the First Amendment as long as the use of the domain name signals that the site is a commentary or gripe site and does not confuse consumers into thinking that the trademark owner operates or endorses the website. I discuss domain names and domain name disputes in depth in Chapter 5 and Chapter 6.

Domain names for cybergriping sites often consist of the trademark and a negative dictionary word. Sucks is a popular negative word used in gripe site domain names. Th e domain name for a gripe site abut the XYZ Company might be www.XYZCompanysucks. com. Most courts would not view the domain name, www.XYZCompanysucks. com, as infringing the trademark XYZ Company. That is because the domain name does not create a likelihood of confusion with the trademark company name as required for domain name dispute actions. No one is likely to believe that the XYZ Company is the sponsor or operator of a site that criticizes the company and carries a domain name like XYZCompanysucks.

(The Appendix includes resources, sample completed copyright registration and trademark registration forms, and a glossary. The following excerpt explains how to complete a copyright registration form for an online newsletter.)

A.2.5. Registration of Your Online Work as a Newsletter
This example is on Form G/DN. See the discussion in Section A.2.4 regarding the Copyright Office’s potential adoption of online registration only for group registrations.