Powerful Paperwork: 2

Gregory A. Piccionelli
In part one, we looked at disclosure notices and COPA. In today's conclusion, we'll look at jurisdictional considerations and other notices.

All About Location
Obscenity prosecutions of a party distributing content via the Internet require the government to prove that the accused party intended the allegedly obscene material be distributed to or from the location in which it is charged as being obscene. The government typically brings obscenity prosecutions in conservative jurisdictions hostile to adult content, where the charged material is more likely to exceed the community standards of the locale. An online intellectual property license comprising part of a website's notice page (or part of the website's terms of use, for example) governing the use of the website's intellectual property can prohibit the use of the website content in specified jurisdictions. If there is an allegation of distribution of content to a hostile jurisdiction, and that jurisdiction also is listed as a prohibited distribution area by the website owner in the website's terms of use agreement, the webmaster may be entitled to use that fact in his defense to indicate a lack of intent to distribute any adult content into the jurisdiction where it is being charged.

Moreover, for the same reasons stated above regarding a minor's access to website content in excess of authorization given, any party accessing website content in violation of location limitations imposed would also arguably run the risk of violating state and federal anti-hacking and computer privacy laws.

Will a prohibitory notice support the argument that there was no intent to distribute to a minor or to a particular location? Maybe. It depends on the totality of the circumstances. Intent to distribute content to a minor or to a particular location can be proven in a variety of ways.

Consequently, an online distributor of adult content should not rely on prohibitory notices alone and should always seek competent legal advice. But if a content use license is a sincere and bona fide expression of the distributor's intent not to distribute his content to a minor or to particular locations listed, such notices certainly can be a good start.

Other Notices
• Compliance statements required by the federal record-keeping and labeling regulations. The statements required by 18 U.S.C. §2257 are perhaps the most important notice requirements that must be appropriately incorporated into adult entertainment websites in which actual sexual conduct is depicted.

Failure to comply with any of the 2257 regulations can result in imprisonment for up to five years for a first offense and 10 years for subsequent offenses, as well as substantial fines. The 2257 regulations are very complex and specify exactly where and how the compliance statement is to be published.

Unfortunately, the issue of compliance with the 2257 regulations is far beyond the scope of this article.

Consequently, the reader is urged to seek competent legal counsel familiar with the 2257 regulations for further information.

• Privacy policy. The main purpose of a website privacy policy is to disclose what a website owner will do with data it collects from persons through the site. California actually requires websites doing business in the state to have a privacy policy.

If you don't have a privacy policy on your site, you should consult a competent attorney to evaluate your circumstances to see if you should post a privacy policy and, if so, to help you develop an appropriate policy.

It is important to note that once you have a privacy policy, you must comply with its terms. The Federal Trade Commission and many states view a website owner's violation of his or her own privacy policy as a deceptive trade practice.

• Copyright notice. A website owner does not need to post a copyright notice to protect the copyrights in the content on the site or in the site itself.

However, notice will help prove that someone who has pirated the site's content did so willfully because the content contained a notice that the material was subject to the indicated copyright holder's copyrights in the works.

It is important to note that if the content is registered with the copyright office before infringement, a copyright owner can obtain statutory damages of up to $150,000 per work that is willfully infringed.

• Trademark notice. If words, phrases or symbols are functioning as trademarks on a website, they should be identified as such. Trademarks are intellectual property, and some can become quite valuable. If a mark identifies the source of goods it should be marked with a "TM" (trademark) notation. If the mark identifies a service, it should be marked with an "sm" (service mark) notation.

Additionally, a website owner may want to register the mark with the U.S. Patent and Trademark Office. Doing so has many benefits, including the potential awarding of attorney's fees in the case of infringement and potentially treble damages in the case of willful infringement.

The benefits and mechanics of trademark registration and trademark notice-giving also are, unfortunately, beyond the scope of this article. Please contact competent counsel for more information.

• Terms and conditions of use. Every website should have its own terms and conditions of use. This is the website owner's opportunity to precisely regulate how his intellectual property may be used. A properly drafted set of terms of use can save you thousands or even hundreds of thousands of dollars and potentially provide you with important legal arguments in your defense, as indicated above.

Additionally, a website's terms of use can specify where and how disputes involving the site or its products and services are to be resolved and which states or countries will control the resolution of the dispute. They also can specify the mode of dispute resolution, e.g., arbitration instead of court litigation. These are very powerful legal tools if they are used correctly. But here again, it is important to contact a competent attorney to help you. Generally, every website business is differently situated from others to some extent.

A well-drafted set of terms and conditions for use of the website, for membership to the site and/or participation in an affiliate program will reflect this. I have written hundreds of website terms and conditions in the past 12 years that have ranged in length and complexity from short one-paragraph agreements to 50-plus-paragraph monsters. Unfortunately, there is no "one size fits all" solution. But that also is why terms of use can be such a flexible and powerful legal tool for website businesses.

• Leaving our site notices. Finally, I am a strong advocate of notifying a web surfer that they are leaving the control of one website owner and passing into the control of another. This is yet another legal tool that can, in some instances, help an attorney defending a webmaster bolster the argument that the webmaster should not be responsible for the bad acts of another website owner. Of course, if the webmaster actually knows of infringing or illegal activity at the receiving end of a link, all the notice in the world will not insulate the webmaster.Consequently, adoption of this form of notice, like so many discussed above, should be undertaken after consultation with your attorney.

Gregory A. Piccionelli, Esq. is one of the world's most experienced Internet and adult entertainment attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375.

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