Internet

What is Internet Law?

The expanding online eco-system and accompanying web of intellectual property related rights integral to it grow more complex and multi-faceted every year. Relevant legal principles, applicable statues, and continuously developing case law are among the essential fabrics that create and shape the internet. This legal architecture is as central to its operation as are its physical components and electronic transmissions. The internet can be analogized as a vast system of “piping” (“data pipes”). The legal relationships establishing the rules of its innumerable interconnections can be perceived, in turn, as an equally elaborate network of junctions, valves, and splitters at its intersection points.

The design of this infrastructure can assume multiple geometries while continuing to gain ever greater capabilities. Portal sites open out onto their own radiating array of destinations. Website content is now frequently syndicated out to numerous other sites, sometimes via linking, binding the fabric of such inter-joined portions of the web more tightly together.

Data coursing onto our screens via internet “pipes” is, in addition, increasingly personalized. Data analytics making use of online collected information is now shaping online activity to an unprecedented extent. Streaming analytics now tap directly into real-time data flows, enabling insights gained to be utilized immediately by recipients. It is the job of internet law to clarify the legal interconnections that comprise a crucial framework for what we call the “internet” and determine what will and won’t occur at each of these junctures.

Content Licensing & Distribution

Content licenses can, in the interest of the licensor, include narrowly limited and non-exclusive grants of rights or, in the interest of licensee, conveyance of broader and sometimes exclusive rights, such as regarding a product category, geographic area, or both combined. Creator’s right to distribute the same or similar content through other channels should be specified or barred. Exact rights, including derivative or ancillary rights, to be held or not held by those entrusted with online content should be spelled out.

Online Content Distribution Agreements set out the rights of content recipients and limits on those rights, including non-compete, exclusivity or non-exclusivity provisions, and coordination of online marketing and advertising plans. The specific products in which licensed content can and cannot be used should be listed. The number and character of websites permitted to display licensed content and context in which it will be published should be addressed, along with the term of the agreement itself, duration of rights granted, and use of trademarks and logos. The right of a licensee to further sub-license distribution of content should be clearly permitted, barred, or precisely delineated.

Ongoing Content Provider Agreements normally include schedules of when new content must be completed and transmitted to the online platform. Mobile Content Delivery Agreements define the respective responsibilities of content creators, delivery services providers, and carriers, including required service levels and malfunction response times. Website-Linking Agreements for promotional and marketing purposes can specify details of the graphic image(s) in which the link(s) will appear and their location(s) on the host site, together with financial compensation arrangements.

Co-Production & Cross-Marketing

Collaborative Media Production and Distribution Agreements call for well-drafted provisions regarding rights acquisition and respective roles in development and marketing. Financing, cross-marketing commitments, use of data collected, creative control, and final decision-making should all be encompassed. Co-Production Agreements for online content should describe development and production budgets, roles in providing content, stages of production, co-branding provisions, and future rights in jointly acquired resources and co-produced products.

Collaborative Marketing Agreements can set out distinct roles in online marketing, including rights in content created, co-branding provisions, and adjustment of financial obligations between the parties in proportion to future benefits received. Joint Online Promotion Agreements can clarify how IP contributed by both parties will be integrated into the online promotions, specifics concerning display of trademarks, advertising commitments, and future rights regarding cross-branded promotional properties. In more complex internet “partnerships”, required actions to be taken by both parties can be more numerous, variegated, and woven together in more numerous ways. Corresponding financial arrangements can be more multi-faceted as well.

Website-Linking Agreements for promotional and marketing purposes can specify details of the graphic image(s) in which the link will appear and their location(s) on the host site. Product Placement Agreements can generate valuable marketing and promotional opportunities along with valuable revenue streams. Detailed contracts with companies providing an expanding spectrum of marketing-related data analytic services, have also assumed central importance for many online enterprises.

Website & Media Development

Website Development Agreements normally include “milestones” to be attained that will trigger a linked series of payments. Ownership of and rights to all IP used on and within the site must be fully secured. Website terms of service should address specific requirements arising from the product(s) or services to be offered on the site. Privacy policies should reflect how data collected will actually be used or not used, securely stored, and conveyed or not conveyed to third-parties.

Joint Media Development Agreements normally span fixed development schedules, target specifications, and allocation of present and future rights in the jointly developed property. Strategic Alliances should be accompanied by a jointly–developed business plan and designation of responsibilities regarding costs, development, marketing, sales, advertising, sub-licensing, apportionment of revues, technical support, and data use, together with relevant IP ownership and control rights.

Fractionating IP Rights & Multiple Platforms

That we now receive so much of our film and video content via the internet has led to accelerating convergence of entertainment and internet law. Increased “fractionating” of IP interests in entertainment properties is resulting in an expanding number of distinct licenses derived from a particular property or series of properties. Multi-Channel Network -Content Creator Agreements are now often being customized. You-Tube based Multi-Channel Networks are having to work harder to acquire underlying IP rights in the content they present. Creators are striving to hold onto such rights, then magnify their future revenue streams through diversifying the contexts, platforms, and devices through which underlying IP content, and the derivative works generated from it, can be experienced.

Intellectual Property Law

Intellectual property law is highly applicable to the internet. Decisions of both the US Patent Office and US Trademark Office continue to mold what we see and do online. Recent court decisions have, for example, substantially expanded the bounds regarding “fair use” of copyrighted works. When images of well-known public figures are displayed online without their permission, whether their “publicity rights” require compensation and a signed consent often arises. First Amendment protection of third-party copyrighted content incorporated into “expressive” works online has, however, been enlarged by the courts as well.

Instances in which copyrighted work will be deemed “made for hire”, with applicable rights thus held by the individual or entity paying for it rather than by the individual creator, has been a focus of recent judicial decisions as well.  We are now seeing an accelerating integration of intellectual property, entertainment, and internet law.

Online Privacy & Regulations

A growing number of federal and state laws apply specifically to the internet, especially to defined sub-areas of internet activity. Privacy constraints, under both state and federal statutes and court-developed “common law”, are now frequently being applied to questions of internet privacy. The FCC and FTC, together with state attorney generals, continue to take actions impacting what does and does not occur online. The FTC can ban and penalize what it deems to be “deceptive” internet trade practices. State laws against “unfair trade practices” have been applied by state attorneys general to online activity as well.

Data breaches have resulted in recent laws setting out required responses. Resulting case law has set out how data must be secured and whether actions in the wake of data thefts have complied with these standards. Common-law doctrines developed well long before the internet continue to play a central role in its development as well. The law of contracts is, for example, highly involved in determinations regarding the enforceability of online provisions in Terms of Service and Privacy Policies.

The International Internet

At its highest international levels, the internet, as we know it here in the U.S., is administered by a collection of U.S. government departments and agencies, U.S. based non-profits, and a handful of American corporations. Beneath these, at the next level of governance, are five internet registries delineated geographically by continent. These registries themselves, however, tend to be dominated by internationally-operating U.S. companies. This has led to mounting criticism that ultimate control over a large portion of the global internet continues to reside excessively in U.S. hands. Recently, assertions “cyber-sovereignty” by the EU, China, Brazil, and Russia have begun to exert their own influence on current development of the global internet.

The internet is, fundamentally, a web of sites, links, and the data flows between them, a terrain that appears, at first glance, chaotic. Closer examination reveals, however, myriad consciously created structures within this fabric that can be understood instead as an immense, often highly ordered configuration of beneath-the-surface “plumbing.”

Detailed legal agreements are the couplings, the essential fastenings, at its points of convergence. Optimal legal agreements underlying these interactions have become crucial to the success of the many individuals and enterprises participating in and contributing to this increasingly sophisticated online eco-system. Simultaneously, what occurs online, including behind the screen, and shapes what we see presented there, is taking an ever more pivotal role in our lives and the direction our culture.

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  • Business Formations & Financing
  • Content Licensing & Distribution
  • Content Syndication
  • Linking & Cross- Promotion Agreements
  • Multi-Platform Distribution
  • Mobile Content Distribution
  • MCN Licensing
  • Co-Production
  • Personal Services, Independent Contractor, & Employment Agreements
  • Branded Content & Product Placement
  • Website Development & Hosting
  • E-Commerce
  • Terms of Use & Privacy Policies
  • E-Commerce
  • Cross-Marketing
  • Data Analytics
  • Online Services & SaaS
  • Software Development & Licensing
  • Application Development & Licensing
  • Portal Site Anchor Tenant Agreements
  • Product Development
  • Music Licensing
  • Podcasting
  • Commercial Property & Equipment Leasing
  • Sales Contracts
  • Trademarks
  • Copyright Fair Use & Publicity Rights
  • Rights Clearance
  • Data Security
  • Online Advertising
  • EU Law & Operations
Center for Internet Law — Portland
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