Managing Risk When Enforcing Online Rights

It never ceases to amaze me how much theft is going on right under the eyes of major companies and they don’t appear to understand how to spot and deal with it. Of course it takes many forms, often very well disguised, but every business should do its best to keep the thieves away. Web business interests are in the beginning stages of a process involving gaining some reasonable control over property online. There is a raging battle between those who believe you should be able to have complete freedom on the web to do anything and those attempting to preserve business reputations and intellectual property rights. The following is a high level description of the process Dozier Internet Law recommends to protect your company assets and reputation.

The first step is monitoring, and you should be able to do this in-house.

  • Sign up for Google Alerts and include the name of everything you need to protect.
  • Register your site with a “plagiarism”-reporting reporting tool like Copyscape.
  • Participate in rights’ holders initiatives at your major online sites to get reports of potential problems. For instance, eBay has a trademark infringement program.
  • Monitor major search engine, blog aggregator and social networking sites for potential trademark and copyright infringers, as well as potential defamation.

The second step is research and evaluation.

  • Investigate the individual or business. Is he a blogger? Is he a big domain name holder? Is he an online advertiser? Learn about the party and the practices. Determine what is his state of mind based upon his sites and posts on blogs and social networking sites.
  • Identify your options for addressing the problem. Is there a web host, search engine, upstream provider, payment processor, domain name registrar, an employer, or other party you could go to and solve the problem?
  • Establish a risk analysis evaluation to determine best, worst, and most likely consequences of the various enforcement actions you are considering.
  • Have the appropriate business executive consider the risks and rewards and decide which approach makes the most sense to solve the issue.

Finally, it’s time for remediation.

  • Decide upon the action to be taken: Nothing at all, a telephone call, a written demand letter, a Digital Millennium Copyright Act (DMCA) takedown notice, or a lawsuit.
  • Pick your messenger. Sometimes this is the most important consideration. Should the communication come from in-house counsel, your own company, your external legal counsel or someone else?
  • But prepare for the all contingencies. As businesses become more assertive in protecting online reputations and intellectual property, there is a battleground into which you are entering when attempting to protect your business reputation or intellectual property. Consider the potential consequences of each option you have and make a smart business decision.

One final challenge involves your law firm. Today, it has become a common practice for the law firm pursuing remedies for infringement or defamation on behalf of a business to be itself attacked online. As you can imagine, this can become a very significant problem for lawyers. You need to make sure that your law firm is recommending actions based upon your own best interests, and not the interests of the law firm in protecting its reputation. Find a lawyer with the ability to risk being attacked online by the defendants and others affiliates. Remember that bloggers love to get involved in anything that could bring them traffic, since the value of their blog increases when traffic and links increase. Make sure your lawyers can take the heat.

The information in this article is not intended to be legal advice. Always consult your attorney when faced with legal issues.

John W. Dozier, Jr.
John W. Dozier, Jr.
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