I am looking to create a site where I help local business owners with getting more traffic to their website. I would be hiring an independent contractor to write their press release. I would then hire an independent writer to interview the small business owner. The purpose of the interview would be to find out topics to for the writer to post about. How much legal risk is in this concept? I understand that copyright infringement is a concern if the writers plagiarize. Can I use DMCA to protect me? Any other concerns that I should be aware of?
Patent Application Attorney
It almost sounds as though you are going to be offering news reporting service. If you have freelance writers as independent contractors, then you should plan on having a contractual relationship with them wherein they agree not to plagiarize and, if they do, they will indemnify you for any damages that their plagiarism causes. The DMCA would be a way for an offended party to have infringing material removed from your site, so I do not believe that relying on it alone would protect you from your concerns. If, however, another site decides to republish your material without your authorization, then you could use the DMCA to have it taken down.
The answer to this question is for informational purposes only and does not form an attorney-client relationship.
Intellectual Property Law Attorney
What you're proposing to do is to start a business. So learn how by reading a few of the books linked-to below.
Your plan is to hire people to ghostwrite press releases for small businesses in exchange for money. Where will those press releases be published? On your website? If so, why would anyone visit your site? On someone else's website? If so, why would they publish your press releases?
Query Google for "free press release" and learn how this business works.
What legal risks are there in your plan? Only your own business attorney can tell you after learning the details of your plan [which you may not even know yet]. Of course one risk is that one of your contractors writes a press release that infringes on someone else's writing -- but that's a neglible risk considering how company-specific the press release must be written.
And no, the DMCA will NOT "protect" you if you publish, or even distribute, a press release that infringes on another's copyright-protected work. The DMCA provides a safe harbor from infringement only if the person or company who owns the website where the infringing material is published has NO prior control over that material before it's published. You do.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Are You Planning on Opening a New E-Commerce Website?
There is much you need to know as you begin your new business. I suggest you do not attempt to write your own legal policies. This is not where your training and background lie, and though you are probably as smart as an attorney, you do not have their experience.
Below is a checklist for legal issues I use for new e-commerce clients.
1. Business entity - Are you going to be a C corp, an LLC or a sole proprietorship?
2. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.
4. FTC guidlines - The FTC has been regulating business advertising for almost a century. All of their advertising guidlines apply to e-commerce sites.
5. Domain Name issues? Is your name available. Can you create a Trademark?
6. Trademark - Do you have a brand name free from conflict? Should you start with just common law rights? Should you register the mark, and when?
7. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using? Do you have a DMCA notice on your web site?
8. Do you need a DMCA policy?
9. Web Site security issues?
10. Do you need and have an EIN? You can get that for free.
11. Do you have employees? - If so you need written policies regarding their authority and use of the internet.
12. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?
When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.
I hope this list will give you pause to think about those issues for which you might need to seek professional advice.
You may want to discuss your situation with a lawyer in more detail. Most lawyers on Avvo, including myself, offer a free phone consultation.
Andrew M. Jaffe
Attorney at Law
Practice Limited to E-Commerce and Internet Law
This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.
I suggest the follow legal due diligence strategy (please note this is not legal advice, and not intended to be comprehensive list of legal issues):
1) Clearly identify the business model and business activities (seems like you have good grasp of that so far)
2) Have an iron clad master engagement agreement between your company (or you individually) and your writers that protect you, and impose liability for plagiarism and other issues on the writer.
3) Have an iron clad master engagement agreement between your company and your clients that impose liability for false advertising and other issues on the client, not you or your writers.
Both agreements can also include payment terms and delivery dates of the content that your writers will provide, and which you will provide to your customers.
In all cases, limit YOUR liability, you are simply the middleman.
4) Address other issues such as DMCA notices, meta-tags, and trademark infringement that could further limit your liability.
I have substantial experience with these arrangements. If you have further questions, feel free to contact my office to schedule a phone call or in-person consultation.
David N. Sharifi
Intellectual Property and Business Attorney
L.A. Tech & Media Law Firm (Los Angeles)
Main Phone: 310-751-0181. Website: www.LATML.com. If you have a question about this post or would like to schedule a free consultation with David N. Sharifi, contact us at firstname.lastname@example.org or visit www.latml.com. This content is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content does not create an attorney-client relationship.