For publishers of client newsletters
Linking to copyrighted material on other websites
Sidebar: How to comply with the CAN-SPAM Act of 2003
Protect yourself from claims of foreign trademark
Would you want to defend an infringement suit in a Pyongyang court?
By David M. Freedman
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
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
Suppose your company is a truly local or regional organization. Your disclaimer could state, for example:
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
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.)
Archive your e-newsletters
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.
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:
© 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.
DEFINITION: A client newsletter is one that you distribute free, primarily to clients, prospective clients, referral sources, and other stakeholders of your firm. Its objective is to be informative, to demonstrate your expertise, and to promote your services, rather than to earn a profit.