Many hosting companies are concerned about the time, effort and complexity involved in getting their legal house in order. Significant misconceptions about litigation, contracts and abuse often keep these businesses from taking even basic steps to protect their businesses. In this session experienced technology lawyers, David Snead and Jeff Gordon, will help companies learn how to create and structure their business in a way to minimize legal costs and enhance the value of their company.
Keeping the Trolls at Bay: Effective Legal Strategies for your Business
1. Keeping the Trolls at Bay
Effective Legal Strategies for your Business
David Snead Jeffrey A. Cohen
Attorney + Counselor Internet Business Law Attorney
W. David Snead, P.C. Partner, COHEN & RICHARDSON, PC
CEO, InternetLitigators
2. Creating your user agreement
Dealing with “I want to talk to your lawyer”
requests
What you should do BEFORE you get sued
Strategies for dealing with your first lawsuit
Dealing with abuse issues
3. What is important to success?
Information gathering
• What exactly are you providing?
• How much are you providing, and how
much are your vendors providing?
• How will you be compensated?
• Do you need a lawyer?
• What are your “hot button issues?”
• How will you handle abuse?
4. What is important to success?
Price? Expertise? Support?
Service Level Who is your customer? Technical Fit?
Agreement (SLA)?
Cultural Fit? Measurability? Flexibility?
Where are you selling? Who is the end user? In-House Capabilities?
Current Corporate Time to Market? Strategic Advantage?
Focus?
5. Contracting – Key Contract Terms
• What do words mean
• Preventative Contract Terms
• Enforcement Terms
• Incident Response Contract Terms
• Risk of Loss Contract Terms
• Warranties
• Indemnities
• Flow down
• Product specific
6. 360’ Contract Review
Vendors Customers
• Term • Can you provide service during term?
• Warranties • Carefully consider warranties
• Intellectual property protection • IP is your most important asset
• Fees • Can vendor raise fees?
• Flow down provisions • Create integrated contract
• Assignability • Keep in mind your exit
Terms of Service SLA AUP Privacy Policy
DMCA / IP SPAM Resources Customer Info
7. 360’ Contract Review
Example: Bandwidth overages
• What does your vendor contract say?
• How have you monitored?
• What do your termination provisions say?
• Are you required to give a refund?
• What liability do you have to your customer’s customers?
8. Contracting – Key Contract Terms
• Acceptance • Actual event
• Term • Defined
• Controlled
• Foreseeable
• Early Termination • Minimum commitments
• Penalties. Defined.
• Price • Costs and increases spelled out
9. Contracting – Key Contract Terms
• Billing disputes • Specific provision
• Termination • Failure to pay
• Certain events / notice
• Violation of terms / AUP
• Limitation of liability • Realistic figure
• Understand consequences
10. Contracting – Key Contract Terms
• Warranties • Should you provide no warranties?
• Understand “make mutual” requests
• Security • Differences between hosting types
• Possible legislation
• Define breach
• Privacy • Contract provision
• Flow through issues
• European customers
11. Creating your user agreement
Dealing with “I want to talk to your lawyer”
requests
What you should do BEFORE you get sued
Strategies for dealing with your first lawsuit
Dealing with abuse issues
12. How to handle
“I want to talk to your lawyer”
1. What is the Problem?
13. How to handle
“I want to talk to your lawyer”
1. What is the Problem?
2. Do you need a lawyer to respond?
14. How to handle
“I want to talk to your lawyer”
1. What is the Problem?
2. Do you need a lawyer to respond?
3. Avoid lengthy explanations, responses ad
overpromises.
15. How to handle
“I want to talk to your lawyer”
1. What is the Problem?
2. Do you need a lawyer to respond?
3. Avoid lengthy explanations, responses ad
overpromises.
4. Do you need this customer or not?
16. How to handle
“I want to talk to your lawyer”
1. What is the Problem?
2. Do you need a lawyer to respond?
3. Avoid lengthy explanations, responses ad
overpromises.
4. Do you need this customer or not?
5. Collect relevant documents, emails and
names.
17. How to handle
“I want to talk to your lawyer”
1. What is the Problem?
2. Do you need a lawyer to respond?
3. Avoid lengthy explanations, responses ad
overpromises.
4. Do you need this customer or not?
5. Collect relevant documents, emails and
names.
6. Best approach… (hard/soft)
18. Creating your user agreement
Dealing with “I want to talk to your lawyer”
requests
What you should do BEFORE you get sued
Strategies for dealing with your first lawsuit
Dealing with abuse issues
19. What you should do BEFORE you get sued?
“Anybody can sue anybody for anything. There is nothing
that you can do to prevent that. The questions are: 1) How
well are you prepared to defend yourself and 2) Ultimately
what will be the outcome and cost.”
Jeffrey A. Cohen
~ InternetLitigators
20. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
21. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
a.Read them
b.Understand them
c.Know them
d.Use them
22. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
23. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Record's preservation
24. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Records preservation
4. What to do with email/backup
25. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Records preservation
4. What to do with email/backup
5. How to choose counsel
26. What you should do BEFORE you get sued
“… LegalZoom is not a law firm and is not a substitute for
an attorney or law firm. Communications between you and
LegalZoom are protected by our Privacy Policy, but are not
protected by the attorney-client privilege or work product
doctrine. LegalZoom cannot provide legal advice and can
only provide self-help services at your specific direction…”
~ LegalZoom Home Page - 2011
27. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Records preservation
4. What to do with email/backup
5. How to choose counsel
28. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Records preservation
4. What to do with email/backup
5. How to choose counsel
6. Insurance
29. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Records preservation
4. What to do with email/backup
5. How to choose counsel
6. Insurance
7. Investigation
30. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Records preservation
4. What to do with email/backup
5. How to choose counsel
6. Insurance
7. Investigation
8. Offers of settlement
31. What you should do BEFORE you get sued
1. Have favorable agreements/contracts in place
2. Develop Litigation Hold policy
3. Records preservation
4. What to do with email/backup
5. How to choose counsel
6. Insurance
7. Investigation
8. Offers of settlement
9. Should you sue first?
32. Creating your user agreement
Dealing with “I want to talk to your lawyer”
requests
What you should do BEFORE you get sued
Strategies for dealing with your first lawsuit
Dealing with abuse issues
33. Strategies For Dealing With A Lawsuit
1. AS A DEFENDNAT (Being Sued)
2. AS A PLAINTIFF (Filing Suit)
34. Strategies For Dealing With A Lawsuit
1. AS A DEFENDNAT (Being Sued)
a) Contact your litigation attorney right
away
35. Strategies For Dealing With A Lawsuit
1. AS A DEFENDNAT (Being Sued)
a) Contact your litigation attorney right
away
i. Internet Knowledge
ii. Proper Jurisdiction
36. Strategies For Dealing With A Lawsuit
1. AS A DEFENDNAT (Being Sued)
a) Contact your litigation attorney right
away
i. Internet Knowledge
ii. Proper Jurisdiction
b) Implement Litigation Hold policy
37. Strategies For Dealing With A Lawsuit
1. AS A DEFENDNAT (Being Sued)
a) Contact your litigation attorney right
away
i. Internet Knowledge
ii. Proper Jurisdiction
b) Implement Litigation Hold policy
c) Centralize external communications
38. Strategies For Dealing With A Lawsuit
1. AS A DEFENDNAT (Being Sued)
a) Contact your litigation attorney right
away
i. Internet Knowledge
ii. Proper Jurisdiction
b) Implement Litigation Hold policy
c) Centralize external communications
d) Notify your insurance company
39. Strategies For Dealing With A Lawsuit
1. AS A DEFENDNAT (Being Sued)
a) Contact your litigation attorney right
away
i. Internet Knowledge
ii. Proper Jurisdiction
b) Implement Litigation Hold policy
c) Centralize external communications
d) Notify your insurance company
e) Begin collecting/segregating relevant
docs/email
40. Strategies For Dealing With A Lawsuit
1. AS A DEFENDANT (Being Sued)
a) Contact your litigation attorney right
away
i. Internet Knowledge
ii. Proper Jurisdiction
b) Implement Litigation Hold policy
c) Centralize external communications
d) Notify your insurance company
e) Begin collecting/segregating relevant
docs/email
f) Start thinking about possible “business
solution”
41. Strategies For Dealing With A Lawsuit
1. AS A DEFENDANT (Being Sued)
2. AS A PLAINTIFF (Filing Suit)
42. Strategies For Dealing With A Lawsuit
2. AS A PLAINTIFF (Bringing Suit)
a) Contact your litigation attorney as early
as possible.
43. Strategies For Dealing With A Lawsuit
2. AS A PLAINTIFF (Bringing Suit)
a) Contact your litigation attorney as early
as possible.
b) Avoid informal emails/contacts with
potential defendant
44. Strategies For Dealing With A Lawsuit
2. AS A PLAINTIFF (Bringing Suit)
a) Contact your litigation attorney as early
as possible.
b) Avoid informal emails/contacts with
potential defendant
c) Collect relevant docs/email
45. Strategies For Dealing With A Lawsuit
2. AS A PLAINTIFF (Bringing Suit)
a) Contact your litigation attorney as early
as possible.
b) Avoid informal emails/contacts with
potential defendant
c) Collect relevant docs/email
d) Determine Jurisdiction, Statute of
Limitations, Amount in Controversy
46. Strategies For Dealing With A Lawsuit
2. AS A PLAINTIFF (Bringing Suit)
a) Contact your litigation attorney as early
as possible.
b) Avoid informal emails/contacts with
potential defendant
c) Collect relevant docs/email
d) Determine Jurisdiction, Statute of
Limitations, Amount in Controversy
e) Adjust your expectations
47. Strategies For Dealing With A Lawsuit
2. AS A PLAINTIFF (Bringing Suit)
a) Contact your litigation attorney as early
as possible.
b) Avoid informal emails/contacts with
potential defendant
c) Collect relevant docs/email
d) Determine Jurisdiction, Statute of
Limitations, Amount in Controversy
e) Adjust your expectations
f) Consider alternatives to Litigation
48. Creating your user agreement
Dealing with “I want to talk to your lawyer”
requests
What you should do BEFORE you get sued
Strategies for dealing with your first lawsuit
Dealing with abuse issues
49. Cease and Desist Letter
It July 16, 2011 to our attention that your web site
has come
Dear Sir
contents located the proprietor(s) of all copyright in a web content/ personal
I am representing at example.com is publishing to
Name’s copyrighted presentations work originated by [Name]. It has come to our
correspondence/public Work and personal information
including email, home address and phone number. publishing to Name’s
attention that your web site contents located at example.com is
copyrighted Work and personal information including email, home address and
phone number. Permission was neither asked nor granted to reproduce The Work and
the content terms of an injunction against the continued infringement, as well an
In entitled to the Copyright Statutes, Name is entitled to as
ttherefore constitutes infringement of Name’s rights. In terms of the Copyright
Statutes, injunction against the continued infringement, as well as
Name is o recover damages from the infringing conduct.
to recover damages from the infringing conduct.
Further the site forum administrator and associated parties have engaged in conduct
This of distributing harassingthis criminal harassment about Name and her family. They
that and libellous materials which harmful and
is to inform of organized conduct is seriouslyresulted in endangering the
have taken part
have life and the welfare of a minor.of criminal threats of bodily seriously harmful
resulted in the receipt This is to inform that this conduct is harm
to Namehave resulted in the receipt of criminal threats of bodily harm to Name family.
and family.
We demand that We assist us immediately This is written without prejudice to
you demand that you assist us immediately This
Name’s rights, all of which are hereby expressly reserved. I am attaching below the
is written without prejudice to Name’s rights,
location of the copyrighted work.
all of which are hereby expressly reserved. I am
attaching below the location of the copyrighted
work.
50. Overall strategy
DMCA • Register
• Draft policy (OCILLA)
• Post contact information
• Check complaint
Trademark • Draft policy
• Determine procedure up front
• Understand differences between trademark and copyright
• Look for trademark complaints in DMCA clothing
Other IP • Draft policy
• Determine procedure up front
• Determine whether CDA applies
• Look for IP complaints in DMCA clothing
51. Overall strategy
Nasty customers • Based on contracts
• Determine procedure up front
• Don’t rely on disclaimer of liability
Subpoenas and Warrants • Review, Verify, Schedule, Comply
• Relationship with law enforcement
Nasty grams • Sniff test works best
• Base analysis on facts
• A letter from a lawyer isn’t scarier
• Don’t rely on disclaimer of liability
52. Questions?
David Snead Jeffrey A. Cohen
Attorney + Counselor Internet Business Law Attorney
W. David Snead, P.C. Partner, COHEN & RICHARDSON, PC
CEO, InternetLitigators
david.snead@dsnead.com
Twitter: wdsneadpc Jcohen@corichlaw.com
Blog: TheWHIR (310) 469-9600
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