Some Coding & Design Law For You
As a lawyer-coder, I want to share a few quick legal tips with you that will help keep you out of trouble:
A) GET IT IN WRITING: You’ve heard this in the movies a million times. Do you do it? For example, if you are creating a new app, before you start interviewing potential co-coders for it, make sure they sign a non-disclosure, and non-compete. It doesn’t have to be a ‘real’ contract; just have them agree even in a chat room, and be sure to take a photo of it to preserve the understanding. An ounce of prevention adds up to a pound of avoided legal headaches down the road. Further, it allows both parties to go into a project knowing exactly where they each stand.
Then, down the line, start writing up a full complete contract that formalizes the ‘dinner napkin’ contract you created (which too, would have been legal). Bottom line: get it in writing. Got it?
First, Medium has the legal right to remove any post at any time for any reason. If you didn’t know that, you should. Why? Because you should have read the terms of service. As such, I am keeping a local copy of every post I make here, because it means they can do almost whatever they want with the post, and if they suddenly decide they don’t like my post, they can remove it. Do I agree with this? In principle, no, I think it’s a horrible policy, and I hope they change it to a ‘for cause’ policy. However, clearly I ‘do’ agree with this, because here I am, writing this blog post on… Medium.
Second, did you notice that I wrote “they can do almost whatever they want with the post”. You see, you still own the full copyright in your work, and you have only given Medium a license to use your work here on the site, and in promotion of the site. They do not have the right to sell it, re-package it, or do anything outside of Medium and its promotion. That’s good to know, right?
Third, Medium has set the venue for any lawsuits in… California. And in accordance with these terms of service, any lawsuits must be filed in the state of California. Now, there is always a question of how much of a contract is enforceable. It’s possible that if you file the case in New York, or Texas, or Florida, the judge will find that ‘venue’ clause to be unenforceable, and allow the case to proceed. Or not. So by using Medium, you have to recognize that if they do anything to ‘screw you’, you may have no choice but to head to sunny California and hire a California attorney to do your bidding. This too is something that is good to know.
Bottom line, read the damn terms of service!
Oh, and PS: if you’re creating your own app, here’s a word to the wise: you better make sure you have a terms of service for your users, and it better be bulletproof. As a suggestion, go and compare the terms of service from five of your favorite web apps. You’ll find a lot of it is the same, but some will be different. Make sure you add all of the things that most of them have, and be sure to consider all of the other parts to see if it’s applicable. Finally, consider your app’s unique situation: what must be added that is unique to your circumstances. When you’re done: war-game the terms of service, and try to imagine every different lawsuit someone could bring against you, and see whether the terms of service protects you or not. More often than not, the terms of service have a loophole that a good lawyer (like myself, hee hee) can grab onto, thus ensuring that the case is not dismissed. True, a lawsuit is probably the most unfun and unappetizing thing to consider when all you want to do is launch your app, but you need to do this. Be patient, young webwalker: put a good terms of service in place prior to launch. If you’re rushed, do so immediately after you think the app is going to be viable.
And whatever you do: do not arbitrarily delete someone (and their work) from your app without a damn good reason. Further, your actions better jive VERBATIM with what you agreed to with the user in the terms of service. If you end up deleting someone’s account (or post) without legal justification, you’re the one who is going to end up in big trouble.
My suggestion: work into the terms of service a ‘three strikes and you’re out’ policy, or at least give each user an ‘opportunity to cure’. It will protect you, and also help put in place a mechanism that will potentially allow you to keep your community whole.
C) IT MAY JUST BE A PHOTO, BUT IT MAY BITE YOUR HEAD OFF: Yes, I know. It’s so easy to find a photo or video in Google images or on Bing and use it on your site. My advice: do not do this.
If you do, be forewarned: if the photo was copyrighted in the copyright office, and you can’t prove that you have a license or other type of authorization to use the image or video (even if you do have such a right), you could face statutory copyright damages in the hundreds of thousands.
“But I didn’t make any money off it!” you cry. Sadly, and I heartily disagree with the copyright law in this domain, that too doesn’t matter. Statutory damages do not consider whether profit was made.
“But I’m judgment proof — I have no money.” Sorry, doesn’t work that way either. If you get a judgment against you of $50,000 (and that is actually low), and you can’t pay, it’s usually not dischargeable in bankruptcy, and the judgment becomes a permanent part of your credit report, culminating in wage garnishment once you get an income.
“Yeah, well, I started a C Corporation/LLC, so the corporate veil will protect me.” Sorry, my dear friend, there is no corporate veil protection in copyright litigation. The idea is: if it happened, it is a violation of the law, so a corporate structure cannot be used as a protective front for “illegal” activity. Make sense?
Bottom line: if the copyright holder and his/her attorney decide to be total pricks, they can pursue a course towards trial that may cost you tens and tens of thousands of dollars to settle for. IT IS NOT WORTH THE RISK OF ALL THE AGONY YOU WILL GO THROUGH.
So: you can do one of two things to stay out of trouble.
A) Do not touch any image or video you find on Google, Bing, YouTube, etc. Make a decision to only use photos and videos from reputable stock video sites. And… read their terms of service and terms of your copyright license! If you download an image from a stock photo site, and then starting using it beyond the scope of the license you bought… you’re in big trouble buddy! So take the time to read (and download!) the terms of service for any site you use on the internet from this point forward.
B) Or, before you download the photo or video from Google, Bing, YouTube, etc. find out who the copyright owner is, and WRITE TO THAT PERSON. Or his/her agent. Or manager. Or attorney. Or fully read the terms of service of that site, i.e. YouTube. And if you don’t hear back from the owner, or you don’t get permission (IN WRITING!), don’t you dare even think of downloading that photo or video. If you do actually download it, and then post it live somewhere without written permission (especially after I just told you not to), I will be honest: you would be a complete and total idiot and will deserve every bit of litigation hell that rains upon your life.
[Note: this all applies to anything written too. Books. Poetry. News articles. Excerpts. And audio too: Music. Audio books. WHATEVER. Even… code. And that’s a whole other story, but again: read the license before you do anything with anything you find on the net. It may slow down your project by a few days or weeks, and… it’s worth it.]
So those are my top three tips to help you navigate the web safely, doing the bare minimum to avoid trouble when working with the people, apps, and media you find and interact with here. Are there exceptions to all of those rules I mentioned? Sure. And does violating one of them definitely mean you will run into trouble? Nope. But… if trouble does come knocking, you will be very happy if you can:
a) show the court a signed contract
b) show the court that you didn’t violate the terms of service (or that other part did so violate them), and
c) show the court that you have legal authorization to use whatever media is in question
IN SUMMARY, REMEMBER THIS:
Contracts; Terms of Service; Licenses
If you can remember those three terms, and constantly remind yourself of them with any new person, venture, or media you come across, your likelihood of finding yourself in legal trouble will drop dramatically.
If you liked this post, please press the ‘heart’ on the bottom left, and please tell your friends!
-Monroe Mann, Esq.
Also check out my motivational time management and success course on Udemy course called “Time Zen”