If the allegations are true, from a legal standpoint she should be able to recover compensatory damages at a minimum — assuming the defendant has the funds to pay any judgment.

What’s the importance of this case to you?

It should remind you and other Internet marketers not to use photos or images on your websites unless you have the legal right to do so. When in doubt, either get written permission or don’t use the photo. There’s plenty of stock photography and public domain pics available for you to use without risking a lawsuit.

As for supermodel Miller’s legal claims, they include invasion of privacy, misappropriation of image and likeness, and unjust enrichment.

If you do a Google image search for model Marissa Miller, or watch her YouTube videos, her claims for “privacy’ are kind of funny regardless of the legal merit. My guess is the equity term “unjust enrichment” adequately reflects what’s at stake here. It was less the principle of the thing than the fact she didn’t get paid for the use of her photos.

Have you ever been accused of using someone’s photos on your website without permission?

Or have you caught someone using your pics without permission?

If so, what happened?

Feel free to share your experience by posting a comment about it.

Please note that this is not a sales pitch for my services. My law practice is referral-only. Unless referred by an existing client, you’re not eligible for consideration to become a new client.

If you are looking for an Internet lawyer, here are five tips that will help you based upon real world experience and expertise — not speculation.

1. Most business lawyers can handle Internet legal matters but chances are you will be paying for their education because they won’t have the solution right away. If you want them to draft legal documents, they’ll probably be starting from scratch on that too so you’ll be paying extra for that.

2. A lawyer whose practice is primarily or exclusively Internet law will probably save you money regardless of what his billable hour rate is because he already has a head start on providing the solutions you want based on prior experience. Unlike the general business lawyer, there’s an excellent chance he’s already done for others what you need so there won’t be a lot of wheel reinvention occurring.

3. If you’ve got documents that need to be drafted that won’t involve multiple revisions or negotiations with another party, look for an Internet attorney who is willing to do the work on a flat fee basis instead of by the billable hour.

4. Any attorney who practices Internet law should have a practice that includes as clients Internet marketers you’ve heard of and understands Internet marketing terminology when you use it. For example, if his eyes glaze over when you refer to a Google Slap, PPC, or a squeeze page, find another lawyer. He doesn’t need to be an Internet marketing expert but if he doesn’t understand what you do, you’ll be paying extra for him to learn (assuming he puts in the time to do so).

5. Note that there are different types of Internet attorneys. Some handle transactions and help put together deals for you. Others handle lawsuits. The skill set for being a trial lawyer is very different from that needed to be a good transactional attorney. This means that you’ll need a good Internet transactional attorney for most of your online business. If you want to go to court (or get sued), you’ll need a good Internet trial lawyer. Be very skeptical of an attorney who claims he can do both for you.

In her post “WordPress.com Banned Again: Why Aren’t You Concerned?”, Lorelle VanFossen raises two issues:

(1) the apparent lack of blogger interest in fighting such bans; and

(2) to what extent WordPress.com as a whole should be responsible for the misconduct of a single blogger.

Let me tackle these issues separately.

1. Free Speech.

From a U.S. citizen’s point of view, an ideal world would have the same constitutional freedom of speech protections that we enjoy — and it should be a goal worth fighting for because such is directly tied to other personal liberties. Yet as a practical matter, speech rights are limited in most countries. For example, criticizing Islamic extremists in a Canadian blog or forum can lead to civil suits and prosecution for human rights violations in a PC society that has run amuck with moral relativism.

In short, we should promote free speech but not expect it where there is no constitutional protection for it.

2. WordPress.com Liability.

Lorelle correctly lays primary responsibility on the individual blogger rather than WordPress.com as a whole. Where we disagree is her contention that WordPress.com should be liable only up to the amount one pays to blog.

As we’ve seen with recent lawsuits against Craigslist and others, the less involved a site is in screening the content, serving instead as a mere conduit of information posted by third parties instead of as the author of such content, the more likely the site’s, owner, host, and webmaster will be absolved of liability for offending content.

Indeed, one has to wonder if it is even technologically feasible for a WordPress.com, Craigslist, YouTube, etc. to effectively police with preemptive actions to comply with applicable laws around the world. I’d contend that it isn’t possible to do it right.

Because of this, absent facts showing that WordPress.com was knowingly involved in the promulgation of the video in question, I don’t believe the site should owe anything. Period. End of story.

However, I do agree with Lorelle’s argument that WordPress.com should provide judges with the technical information necessary (if feasible) to block a single offending blog so that innocent bloggers are not punished for the misconduct of one blogger.

What do you think?

In your opinion, what are WordPress.com’s responsibilities?

However, the Electronic Frontier Foundation (EFF) and Samuelson Law, Technology & Public Policy Clinic at UC Berkeley have filed friend-of-court briefs on his behalf that argue in part that the DMCA does not apply to Stottlmire’s activities and that he is protected by the First Amendment. You can read more about it in David Kravets’ excellent post at Wired.com, “EFF and U.C. Berkeley Defend Accused Coupon Hacker in DMCA Suit.”

To recap, the DMCA is a bad law that was passed by Congress thanks to large campaign contributions (bribes?) by the Hollywood entertainment industry. Stottlemire is just the latest victim.

As noted by the photo of a court jester above, I wish this was an April Fool’s Day joke. Unfortunately, it isn’t.

Congress is already talking about passing another law (the Pro-IP Act) that’s even more absurd than the DMCA. Tell your local Representative and two Senators that you oppose it and want the DMCA repealed. After all, this time it is Stottlemire. The next time it could be you that’s facing a team of lawyers in court funded by RIAA or the MPAA.

What do you think of the DMCA? Should it be repealed? Or should the Pro-IP Act become law too?

No matter how this particular case turns out, there’s a key legal issue you remember. If someone owns the trademark, service mark, or registered trademark, you may infringe upon that mark by using a similar word or phrase as your site’s domain name. Simply because a domain name can be registered doesn’t mean it is legally available for use.

Something to consider if a disgruntled former employee, competitor, or other malcontent starts trashing your business online.

Roommates.com allowed users to post preferences for housing arrangements that included race, gender, religion, and sexual orientation. These postings allegedly violated the Fair Housing Act.

To become members of Roommate, users respond to a
series of online questionnaires by choosing from answers in
drop-down and select-a-box menus. Users must disclose
information about themselves and their roommate preferences
based on such characteristics as age, sex and whether children
will live in the household. They can then provide “Additional
Comments” through an open-ended essay prompt.

Here’s the key quote from the court’s opinion:

While Roommate provides a useful service, its search
mechanism and email notifications mean that it is neither a
passive pass-through of information provided by others nor
merely a facilitator of expression by individuals. By categorizing,
channeling and limiting the distribution of users’ profiles,
Roommate provides an additional layer of information
that it is “responsible” at least “in part” for creating or developing.
47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at
1031. Whether these actions ultimately violate the FHA is a
question the district court must decide in the first instance.

Note the part that I’ve marked in bold.

The case has been remanded by the appellate court for the federal district court to determine whether or not the Act had in fact been violated.

This sets a dangerous precedent.
For more information, check out these stories here, here and here.

For a copy of the court’s opinion in an Adobe Acrobat PDF file, click here.

Just because a domain name is available to be registered, doesn’t necessarily give one the right to use it. If the name contains a trademarked term, one runs the risk of having the trademark owner filing suit.

Hat tip to the Seattle Post-Intelligencer.

Remember, RIAA is funded by a bunch of music piracy hypocrites. They’ll sue you and I but give a free pass to their own.

Hat tip to Ars Technica.

And Speaking of Piracy…

Blue-Ray and HD-DVD encryptions have already been cracked. That didn’t take long.

Let’s see. Breastfeeding versus a slab of pork. I fail to see the confusion or potential for trademark dilution.

The lesson to take from this is that big business is prone to protect its intellectual property without applying common sense. Instead of ignoring the issue, the pig lobby played bully, assuming that a small operation would give in without a fight.

Here’s a link to the cease-and-desist letter.

Hat tip to Information Week.