Wal-Mart Ends Phone Option For Online Customers

A Wal-Mart spokesperson says the company has improved its online customer service features and that users will be able to find the information they need without having to call a customer service representative.

"We’ve recently launched an enhanced online self-help tool that enables customers to more efficiently manage and track their orders online, and includes an improved ‘help’ section to easily search and find immediate information and answers to questions,"  Wal-Mart spokeswoman Amy Colella, told Computerworld. "With the new online self-help tool, we’re no longer publishing the toll-free customer service number on our Web site for online-related orders."

Colella said the majority of the calls to the online customer support number dealt with inquiries concerning order tracking. Wal-Mart thinks the new online self-help tool will offer its customers all the information they need.

Bruce Temkin, an analyst at Forrester Research sees it another way. "This doesn’t make sense, because our research shows if you ask consumers, even online consumers, what channels they prefer, there’s an overwhelming bias for preferring to talk to a human being with any customer service issue," he said. "To turn a blind eye to the enormous preference that consumers have, I think, is a big mistake."

Customers who shop in Wal-Mart’s physical stores will still be able to call 1-800-WALMART for help but Temkin says that will lead to frustration for Wal-Mart’s online customers and cause the average handle time for calls to increase. Instead he recommends that Wal-Mart should have slowly integrated the new feature online and phased out the customer service number as customer became familiar with the new system.

Now it’s still quite up in the air whether even bidding on a competitor trademark for use in search advertising is infringement, though many cases recently have ruled that it is not. Google still allows that, but MSN and Yahoo do not. American Airlines is taking Google to court over it, which may set a big precedent.

But in the metatags? Where hardly anybody (spider) is looking? Well, apparently, lawyers dig into those tags and cite them as infringements, so tread cautiously.

Playboy even sued one its own Playmate of the Year once for using the terms "Playboy" and "Playmate" in her tags. The court ruled it fair use, as that was part of her official title.

The hardest part of an infringement case to make (at least, to convince me of, the not-a-lawyer) is that keyword metatags would be considered "use in commerce" or cause likelihood for confusion. But some would and have disagreed. 

Technology & Marketing Law Blog’s Eric Goldman thinks those lawyers are a bit on the irresponsible side of the ethics fence, though:

"I think it’s irresponsible (in an ethical sense, if not from an RPC sense) for a plaintiff’s lawyer to go into court claiming that keyword metatags support trademark infringement without informing the judge of the likely technological irrelevance of the keyword metatag."

Irrelevance, as in, most of Internet’s not going to see them anyway. But, as Goldman points out, a lot of judges may not understand that.

Court Says Site Not Liable For Age Liars

But "John Doe" lost a second court battle after shifting blame to the website operators, for not properly verifying the age of "Jane Roe," whose website profile said she was born June 15, 1987, making her 18 at the time of contact.

Roe made a sex date with Doe via the website, and the two consummated at her house. Doe was soon after charged with felony statutory rape. Obviously, he didn’t verify her age, either.

Regardless, Doe sued SexSearch.com for failing to discover that Jane Roe lied about her age to join the website.

Typically, suits such as these are doomed from the start, as interactive computer services, a category which SexSearch would fall under, are immune from liability from user-submitted data. In this case, the user submitted data is an underage girl lying about her age.

An ICS is protected by Section 230 of the United States Code from third party information that could defamatory, libelous, false, et cetera, though there is still some debate as to whether any amount of comment moderation or supplying of structured data are tantamount to removal of third party status.

In John Doe vs. SexSearch.com, the website, as an ICS supplies structured data in the form of dropdown menus that offer age ranges. Though a previous court ruling involving Roommates.com declared structured data used for drop down menus left the site liable for defamation, a ruling attorney and law professor Eric Goldman called "a hairball."

Though this newest case is disturbing, the outcome is good for website operators using structured data on their sites. And as for John Doe and Jane Roe, well, Goldman puts says it nicely:

…the court rightly realized that the legally significant event did not occur when Doe read Roe’s online profile and self-reported age. Instead, the locus of harm occurred offline–as the court says, "Plaintiff clearly had the ability to confirm Jane Roe’s age when he met with her in person, before they had sex, yet failed to do so."

It also brings another issue to light that has been around for some time. The "If 18 Click to Enter" tradition that is required and useless for keeping minors off of adult websites. 

Pete Wellborn said most lawyers don’t know about affiliate programs and they don’t understand Internet law. He said the government has put a bull’s eye on affiliate programs with the Federal Trade Commission calling the shots.

He touched on vicarious liability saying you are generally liable for a contractor’s acts and the Federal Trade Commission has strict liability for acts of affiliates.

He offered practical steps for protection. He said to know who your affiliate is, what the contract terms are and to have a written agreement executed by both parties.

Steve Richter said ads must be truthful and to use non-deceptive advertising, along with evidence to support claims. He said a rule of thumb to use is "would your grandma understand the ad?"

As for privacy he said to beware of the wares such as spyware and adware. He recommended checking the privacy policy every 3 months and to have lawyers look at the policy.

Is Linking To Pirated Content A Liability?

Something like that, with its inherent sovereignty issues, will take longer to work out than the parameters of copyright and fair use. So rather than immerse ourselves in a concept so hairy, let’s consider more present issues.

With recent information suggesting that Viacom’s lawsuit against YouTube is a bit heavy-handed considering the relatively low occurrence of inadvertent copyright infringement on the site, it makes one seek clearer-cut, more intentional piracy. 

TechCrunch’s Michael Arrington points to smaller sites with their hands dipped deep into the piracy pool – sites like France-based Daily Motion. He also brings attention to Allsp.com, a British-owned site dedicated to the TV show "South Park," Viacom’s Comedy Central money tree.

Allsp.com, registered a Max Fret, allows visitors access to every "South Park" episode from every season. It’s access to the episodes because Allsp says they don’t actually host the shows, just provide "a link" to DailyMotion, from where the episodes are streamed.

But the show itself streams via a video viewer on the site itself. A request for comment was met with a simple email from a "Mr. Watson" (assumed because of email name) wordlessly directing to the Disclaimer portion of the website, apparently refusing to expand any further.

It would seem Allsp.com has been bombarded with accusations of illegality, as the disclaimer is more than a little testy in tone:

…ALLSP.com does NOT host any content, all ALLSP does is link to content that was uploaded to popular Online Video hosting sites like dailymmotion.com and Youtube.com. All youtube/dailymotion users signed a contract with the sites when they set up their accounts which forces them not to upload illegal content. By clicking on any Links to videos while surfing on ALLSP.com you leave ALLSP.com, ALLSP.com cannot take the responsibility for any content hosted on other sites.

ALLSP does not upload or even encourage the uploading of copyright protected material to sites such as Dailymotion or YouTube.

As a side note for those of you who wrongly believe that allsp is illegal, then you’ve effectively said that Google is illegal…

The author has drawn some interesting (if questionable) lines regarding his responsibility for copyrighted content on his site; especially interesting is the metaphysical claim that when watching a "South Park" episode at Allsp.com, you are "leaving" the site to do so – just like when a person meditates, they "leave" their physical bodies.

Google has prevailed so far with its fair use argument in the United States, claiming that indexing, linking to, and displaying snippets of content is acceptable practice. However, Google hasn’t been so lucky in other countries.

But it seems a bit of a stretch to compare Allsp with Google, as there is no Google frame around entire content selections, and Google doesn’t present copyrighted material to the searchers on its homepage, or even bring "links" to pirated material front and center. Note also all the copyrighted imagery used for the viewer skin.

In the US system, websites can be held liable for linking to infringing content. Eric Goldman, Assistant Professor and Director Santa Clara University’s High Tech Law Institute, wouldn’t comment on Allsp.com, but did provide some excellent perspective to website liability.

Here are four general principles (but not necessarily all principles) to consider when assessing the limits of third-party linking, fair use, and copyright enforcement:

1) In general, a website should not be directly liable for linking to infringing content.  First, a link by itself doesn’t infringe the linked site’s copyright (see, e.g., Ticketmaster v. Tickets.com).  Second, websites can be insulated from liability under 17 USC 512(d) if the website complies with various steps.
 
2) Having said that, there are some cases suggesting that websites can, in fact, be liable for linking to infringing content.  In one case (Intellectual Reserve v. Utah Lighthouse Ministry), the linking website was allegedly "contributing" to the infringement committed by the user when he/she downloaded the infringing content. 

In another case, streaming video was deemed an infringing display of the video (Live Nation Motor Sports, Inc. v. Davis).  And in some sense, the Napster case involved liability for linking to infringing content. 

Finally, there’s the Universal City v. Remeirdes case, which held that linking to DeCSS violated 17 USC 1201 because the link constituted "trafficking" in illegal technology.
 
3) While there are no clear rules about liability for linking to infringing content, many of the cases appear to turn on the good faith of the linking site–i.e., if the site clearly is designed to facilitate infringement, courts will be very unlikely to use legal formalities to protect the site.
 
4) On that front, site EULAs or disclaimers trying to claim ignorance about linking to infringing content have virtually no legal effect.

A legal system once tentative about taking on digital cases is braving the waters with more frequency. Most of the cases we’ve reported on have involved the statements of anonymous commentators, liability for which webmasters and bloggers have been repeatedly exonerated (or are expected to be). But these are different.

Banks v. Milum – Georgia

"Rafe Banks will never make one single move against me or this website because he knows that we have the witnesses to prove that he carried these drug dealer payoffs to [a] judge."

Those are the now famous last words of David Milum, of Forsyth County, Georgia, who owes Mr. Banks, Milum’s former attorney, $50,000 in compensatory damages. The first case the Media Law Resource Center is aware of that has actually saddled a webmaster with liability.

Milum was disappointed (to put it lightly) with Banks’ handling of his DUI case and fired Banks. When Banks refused to pay back the $3,000 retainer, Milum repeatedly accused Banks of bribing judges on behalf of drug dealers.

Milum couldn’t produce the witnesses he mentioned above.

Barrett-Jackson Auction Company, LLC v. ThumbCo – Arizona

David Clabuesch, a Michigan judge, was hoping his 1970 Hemi Barracuda would fetch upwards of a million dollars at an Arizona muscle car auction. When the car sold for just $300,000, Clabuesch wasn’t happy.

When I say he wasn’t happy, I mean that he chained the wheels after the auction, put up a sign that saying the sale was void, and accused the auctioneer of quick-gaveling the sale.

Though Clabeusch didn’t actually post anything on line (from what I gather), chat rooms and blogs had a field day talking about the auction. As such, Phoenix-based Barrett-Jackson sued Clabeusch on the grounds that his claims were damaging the company’s reputation.

Judge Clabuesch is preparing a lawsuit of his own.

Yoon v. Carney – California

ACLU activist Joanne Yoon’s job was, basically, to keep a close eye on the San Diego Minutemen while they held their rallies. The San Diego Minutemen don’t like her much. In fact, they’re kind of mean.

Through mass-circulated emails and blog posts, members of the Minutemen group, who’ve taken the responsibility upon themselves to monitor the US’s border with Mexico, called Yoon an "anorexic ACLU slut" and "a skank" who sleeps with "those little brown Border Hoppers" daily.

If untrue, those statements jump the line of opinion, and land square in the realm of libel.

Lawyer and blogger Dennis Kennedy gave his perspective on the controversy," My rule of thumb on these issues is to simply substitute the word "telephone" for "blog" and then see if there is any new issue raised by blogs that aren’t raised by telephones. I haven’t found any yet – in twelve years off thinking about these issues since I first started my website."

Lawyer Kevin O’Keefe sees the behavior as typical of the insurance industry. On his blog he writes," Exclude coverage for anything you can get away with and talk of high risks that aren’t real so as to increase premiums and/or to sell new types of coverage."

The insurance company does not seem familiar with the definition of blogging. Blogger Bill Gratsch wrote" The idea that a law firm’s weblog is somehow completely different from its e-newsletter or its company website shows a lack of understanding of web technology."

The questions that remain: are the insurance company just doing its job and being overly cautious; or are they truly confused by the concept of blogging? Gratsch sums it up writing," We obviously don’t know the full story behind the insurance company’s rationale and perhaps it is simply taking a cautious approach to give itself time to understand weblogs and complete risk assessments, etcetera. For that I cannot blame them. They are running a business, after all. "

Should any ISP have the right to alter content in an email if they have no evidence of spam or fraud? With the Goodmail announcement AOL stated that opt-in publisher who don’t pay risk having their links and images disabled. Many ISP’s make loading images a choice of the user but I know of none that disable links.

It could be argued that altering content of an opt-in email newsletter libels the sender. If a publishers links don’t work the reader is likely to blame the sender not their ISP. This damages the reputation of email publishers. Similarly, if an ISP puts an email publication in the spam folder when it has no evidence of actual spam isn’t this itself making a potentially false statment to the recipient.

Obviously, none of this has been argued in a court of law but as the publisher of the iEntry Network I’m predicting it will be. If ISP’s adopt the Goodmail system and require publishers to pay or risk an ISP moving your opt-in content to the spam folder and then possibly disabling links and images many publisher will begrudgingly pay.

I believe this may be the tipping point where publishers may force a test of whether ISP’s can legally alter email content and even lable content as spam when they themselves cannot produce evidence that justifies these actions. An ISP’s need for money cannot justify this in my opinion.

Comment on this article at WebProBlog …. click

Rich Ord is the CEO of iEntry, Inc. which publishes over 200 websites and email newsletters.

Rich also publishes his blog WebProBlog which focuses on internet business and marketing trends.

The only companies who could afford to pay the Goodmail fee are the larger emailers which ISP’s already identify as non-spammers.

It makes you wonder what AOL’s plans are down the road. The only way for this business model to work is for AOL to require large emailers to pay the fee for admission into AOL inboxes. I don’t see any incentive for AOL or other ISP’s to maintain any sort of whitelist once the fee model is implemented. If ISP’s whitelist the good guys who would be left to pay Goodmail and their partner ISP’s?

AOL has stated that non-Goodmail emails may end up in spam folders with images and links disabled. Does this include known opt-in email? Subcribers will likely be confused by this which could damage the credibility of an email publisher and its advertisers. Does an ISP have a legal right to disable links and images of opt-in publishers?

Goodmail does not reduce spam it simply offers a new revenue model for ISP’s. AOL and Goodmail have stated this service is about preferential treatment for those who pay. The question is will AOL give unpreferential treatment to opt-in emailers who don’t go along?

Related Articles:

>> ISP’s May Face Liability For Altering Email
>> Why Is AOL Keeping A Whitelist And Goodmail?
>> Goodmail Is A Bad Idea

Rich Ord is the CEO of iEntry, Inc. which publishes over 200 websites and email newsletters.

Rich also publishes his blog WebProBlog which focuses on internet business and marketing trends.

How do you move from the world of Unlimited Liability to Limited Liability? By forming a “C” Corporation, an “S” Corporation, or a Limited Liability Company (LLC).

For now, I’m leaving the Limited Partnership out of this discussion. I’m assuming that you want a say in the day-to-day management of your business.

If so, then both the General Partnership and the Limited Partnership are not a good Choice of Entity for you.

Why is that? Because if your business is a General Partnership, then you automatically have unlimited liability. And if your business is a Limited Partnership and you want management control, then you’re going to have to be the General Partner, and again, you’ll have unlimited liability.

There are certainly business situations for which the Limited Partnership is a “good fit” (for example, if real estate is involved). But that’s beyond the scope of this article.

So, back to my original question:

How do you move from the world of Unlimited Liability to Limited Liability? By forming a “C” Corporation, an “S” Corporation, or a Limited Liability Company.

Having made such a bold statement, let me also say this: I am a firm believer that when it comes to this Choice of Entity issue, one size does not fit all!

So let me add a strong disclaimer:

There certainly are situations where a “C” Corporation, an “S” Corporation, or a LLC is not appropriate.

But generally speaking, for many Small Biz Owners and Self-Employed People, one of these three entities is often times the best fit.

If you want the protection of limited liability, you’ve got to choose one of these three entities. Remaining a Sole Proprietor or a General Partner just doesn’t make much sense — you are putting yourself, your family, and all your personally owned assets at risk.

Wayne M. Davies is author of 3 tax-slashing
eBooks for small business owners and the self-employed. For a
free copy of Wayne’s 25-page report, “How To Instantly Double
Your Deductions” visit http://www.YouSaveOnTaxes.com