For publishers of client newsletters
HIGHLIGHTS
Sample disclaimer
Linking to copyrighted material on other websites
Sidebar: How to comply with the CAN-SPAM Act of 2003
© 2001
R. Balough
Updated February 2005
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Definition: What's a client newsletter?
Article
Your e-Newsletter Needs a Disclaimer
Protect yourself from claims of foreign trademark
and copyright infringement.
Would you want to defend an infringement suit in a Pyongyang court?
By David M. Freedman
and Richard C. Balough, Attorney at Law
About the authors
If you post your newsletter -- or merely portions of it -- on your website, you are publishing it in every country in the world. Even if your intended audience is local, you can't prevent someone in Afghanistan or Kamchatka from visiting your non-password-protected website and reading the newsletter.
This raises the possibility that you are unwittingly infringing on a trademark or copyright held in some foreign country. It also raises the possibility of someone suing you for infringement just about anywhere, including countries where the justice system isn't as fair as ours. Let's look at how using a disclaimer can protect your Web-based newsletter -- and your organization.
e-Newsletters are everywhere
You can distribute printed newsletters to a restricted geographic
area, limiting the places in which you advertise or promote your
services. Suppose a stray printed newsletter happens to wind up in Baghdad, and
an Iraqi company sues you for trademark infringement. You can avoid
having to show up in an Iraqi court by proving that you did not intend
to advertise or do business in -- and you have never done business in --
that country.
On the other hand, a website is everywhere at all times. You can't restrict a Web-based newsletter's distribution. And you can't defend yourself by claiming that you didn't intend for people in Baghdad to visit the site and read the publication.
Post a disclaimer
Posting a disclaimer may help you defend against a foreign company
that sues you for infringement in a foreign court. Your first defense
would be that a foreign court lacks jurisdiction over you. The
jurisprudence concerning what court has proper jurisdiction to hear an
infringement case is complex. But under U.S. law, courts can exert their
jurisdiction only over defendants that have established "minimum
contacts" with the state or country in which the court sits.
Suppose your company is a truly local or regional organization. Your disclaimer could state, for example:
We publish this newsletter only for our subscribers in Wisconsin, Illinois, Iowa, and Minnesota. We do not intend to enter into contracts with organizations outside those four states.
Your disclaimer's wording will vary depending on your organization's nature and geographic scope. Ask your attorney to help you compose the notice for maximum protection.
Links to copyrighted material
Many e-newsletters provide links to other sites that your readers
might find useful. You could be sued for infringement if your site
provides links to other websites that feature copyrighted material and
your framing implies that it is your own content. So make sure the
material doesn't appear to be part of your newsletter.
One way to do that is to avoid framing other people's Web pages within your site. If that isn't possible, post a disclaimer wherever you provide links and/or in your masthead. Explain that the linked sites are not part of your newsletter. State that those site owners -- not the newsletter publisher -- own the intellectual property rights to the material on the linked sites. (You may also want to state that you cannot certify the accuracy of the material published on the linked site, unless you have checked it for accuracy.)
Low-cost protection
Posting a simple disclaimer in your e-newsletter cost you hardly
anything and afford you priceless protection. Contact your lawyer if you
have questions about the best way to write and display your disclaimer.
Archive your e-newsletters
Periodically save your newsletter Web pages on a disk or backup
tape. Then you can prove in court that your disclaimer appeared in the
newsletter on a particular date.
If that sounds like too much work for your staff, you can pay a service such as Surety.com to do it for you. In fact, in an infringement action, courts usually view an outside archiving service as more credible than an organization's employee.
sidebar
How to Comply with CAN-SPAM
By Richard C. Balough, Attorney at Law
About the author
Ready to send out your e-newsletter? Don’t get in trouble by unintentionally sending e-mail that is defined as spam by the CAN-SPAM Act, formally known as the Controlling The Assault of Non-Solicited Pornography and Marketing Act of 2003. To comply with the Act, you should do the following:
- Use a valid e-mail address as the return address. Make sure all information regarding the source of the e-mail is true and accurate (don't spoof).
- Make sure the subject line is accurate and not misleading. For example, use “Re: My Company’s Newsletter for Spring 2005."
- Somewhere in the body of the e-mail, include both a return e-mail and physical address. The return e-mail address must remain functional for at least 30 days after it is sent out.
- Include an opt-out procedure, that you must honor within 10 business days after a request is submitted.
- Make sure the mailing list does not contain addresses that were “harvested” or obtained by an automated system.
- Send only to people who have agreed to receive your newsletter, or with whom your company has done business within the last 18 months.
© 2005 Richard C. Balough. Posted 2/8/05.
About the authors
David M. Freedman is a freelance writer specializing in legal and financial topics. He is the founder and director of Newsletter Strategy Session
. Contact him at 847-204-6848 or visit www.freedman-chicago.com.Richard C. Balough is a Chicago attorney who focuses on the areas of
intellectual property, e-business, telecommunications, and Internet law.
Contact him at 312-834-0400 or visit www.balough.com.