Forum Owners: Should You Hire A Lawyer?

JulieVA

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JulieVA submitted a new Article:

Forum Owners: Should You Hire A Lawyer?

Forum Owners: Should You Hire A Lawyer?

Table of Contents
I. Background

Why did JulieVa write this anyway?

II. Being Right & Being Sued
Yes, you are naked underneath your clothes.

III. Consider This...
If you thought Geometry was bad, look at all these angles...

IV. Lawyer anyone?
The naughty & the nice

V. Bonus Tips
2 Simple ways that you can make things easier for yourself...

-----------------------------------------------------------------------------------------------


I. Background
Recently, I posted a thread requesting guidance from Big Boards owners or anyone "in the know" regarding whether or not a forum owner needs a lawyer and also asking for some guidance about how to go about picking a lawyer...what to look for, the types of questions to ask, any warnings signs, etc.

I did this because my site is at a critical growth point right now. My site has been operating or almost 5 years and the revenue stream and traffic is picking up. I am also interacting with more savvy users - physicians, divorce / family attorneys, Life Coaches & Parenting Coaches, mental health professionals, etc.

I was hoping for some guidance from other forum owners who have already been through this...but to be honest, I got very few helpful responses in with my inquiry (and I was referred to as a horse! LOL), so I proactively sought answers to my questions elsewhere... and, I decided to post something about this subject for anyone else who may be struggling with a similar decision.

Important Note: I am not an attorney. What I am posting here is not legal advice. It's just a bit of information-sharing based on what I discovered by doing a few hours of research which included a few free telephone consultations with attorneys. This is something you can certainly look into for yourself. Many attorneys and law firms offer free initial consultations and may are willing to refer you to someone else if their area of law practice is not what you need.

I am hoping that this article gives you some things to consider that you may have not thought about.

As you read, please keep in mind that I am in the USA, so some of the things I share may not be relevant to...

Read more about this article here...
 
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dojo

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Really cool advice. I hope I'll never need to think about it, but this doesn't mean we're safe anyway. Thank you for the amazing info in the article ;)
 

esquire

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Great post - thanks for taking the time to share it here.

As someone with a legal background, there are a couple of things I'd like to share and perhaps clarify. It's very difficult sometimes to separate all the complicated law that exists. I'm finishing writing an article on protecting your website this week that might be of help and may alert you when its ready if anyone wants. For purposes of lists (which are important here) I'll provide resources / links below. A couple of things:

1) Much of your protection against posts by your users comes from the DMCA, also known as the Digital Millenium Copyright Act. It provides site owners with immunity from being sued if they comply with its provisions.

2) A DMCA takedown notice should look like this. As a site owner, you absolutely do not want to make this an easter egg hunt. The person complaining to you has to represent they own or control the content (for the most part) and also specify where to find it.

3) In your legal terms, you should always have a way for people to contact you directly to take down content that they claim is copyrighted. Going to the US Copyright office and then to a lawyer, etc. seems like taking a very long (and possibly expensive) and unnecessary route, doesn't it? And let's not forget the handling charge the lawyer rightfully can put on your bill. Registering is a way for someone with a complaint to have a definite address to contact you.

4) You will need to have a policy in place that provides for how to respond to a DMCA takedown request. This is very important. If you don't have a policy in place and follow these rules, you can lose your immunity very easily.

There are lawyers who will certainly try to influence you to pay them when you really don't need to use their services. At the same time, not truly understanding all the things you need to do and finding out later that you didn't take those steps can be extremely costly. I'd say that incorporating a company is a great idea. If you're very short on money, you can file one yourself with minimal risk. If your site starts to bring in money you should consider speaking to an accountant and certainly to a lawyer to make sure that, moving forward, you aren't opening yourself up to exposure now that there is money to sue for. Best of luck to you all.

PS - Dojo - like your site. I'm a 4th Dan myself. ;)
 
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JulieVA

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@Dojo - Thanks! I am glad you found the article to be helpful.

@esquire - As I stated in the article, the lawyers I did the consultations with indicated that there are currently three popular lanes for lawsuits on the web:
  • public disclosure of private facts
  • libel
  • the commercial use of another person or company's images without their permission

Looking at that list, I would say that as forum owners our guidance & some of our protections come from both of these:

1) the Digital Millennium Copyright Act
This relates to copyrighted material on the Internet.

2) Communications Decency Act, Section 230
This relates to our level of liability for things that users post to our forums. This covers issues such as harassment, defamation (libel), etc.

From what I was able to learn, our real protections come from a solid Registration Agreement and Privacy Policy and definitely by separating our personal assets from the forum we operate. But in the end we can never be 100% protected because there are people who will try to sue anyway. You don't need to have a valid complaint to sue. This is part of the risk we take when we own and operate something.

I wanted to mention this - It seems to me that if someone contacts you and asks you to remove their copyrighted material, it would be best to do so immediately and not to craft any "counter argument" as the links you provide above seem to suggest. But, of course, it's up to each person to decide their level of comfort on these things.

I agree that it should be easy to contact a forum owner to request that copyrighted materials be removed from their forum.

Here's something which appears very conspicuously all over my site:

For questions or concerns with comments, images, or videos posted
in the Community Discussion Forum, including copyright infringement,
or defamation, please use the Report to Moderator link
which appears at the bottom of every comment
in every discussion thread at Our Mom Spot.

You may also send an email to Administrator@OurMomSpot.net
along with a link to the content you would like to discuss.
If your question or concern is about material which appears
in other areas of Our Mom Spot, please send an email to Administrator@OurMomSpot.net

All questions and concerns will be addressed with appropriately.​


This is something else which came out of the consultations I had: Your Terms of Service should be accessible from every page of your site. I am currently having a forum upgrade done and I asked the upgrader to change things so that "Terms of Service" (linked to my TOS page) appears in the top menu bar on every page. I am thinking of adding "DCMA" (with a link to some variation of the statement in red above) to the top menu bar too...
 

esquire

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@Dojo - Thanks! I am glad you found the article to be helpful.

@esquire - As I stated in the article, the lawyers I did the consultations with indicated that there are currently three popular lanes for lawsuits on the web:
  • public disclosure of private facts
  • libel
  • the commercial use of another person or company's images without their permission
From my experience, the largest one by far is copyright, which isn't mentioned above.

I wanted to mention this - It seems to me that if someone contacts you and asks you to remove their copyrighted material, it would be best to do so immediately and not to craft any "counter argument" as the links you provide above seem to suggest. But, of course, it's up to each person to decide their level of comfort on these things.
Most forum owners don't have a problem with a single post. That's a much easier call. The problems arise when someone asks you to delete 50 posts and also require you to find all the quotes in posts and delete those too. That's what happens on active forums.

I am thinking of adding "DCMA" (with a link to some variation of the statement in red above) to the top menu bar too...
You're free to do whatever you wish but I wouldn't advise this. I think you're better off keeping it in your terms of use and having information in a contact link that is conspicuously placed in your footer.
 

JulieVA

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From my experience, the largest one by far is copyright, which isn't mentioned above.

Sure it is. Section III of the article is "Copyright / Fair Use Issues" and it is also the third bullet in my response to you "the commercial use of another person or company's images without their permission" That also goes along with using any work which is copyrighted without permission.

Most forum owners don't have a problem with a single post. That's a much easier call. The problems arise when someone asks you to delete 50 posts and also require you to find all the quotes in posts and delete those too. That's what happens on active forums.

That is no problem if your Registration Agreement clearly states that posts will not be deleted. In my research I saw no lawsuits resulting from disgruntled ex members who wanted their posts deleted, although as forum owners we seem to frequently get people threatening to sue if we don't remove their posts...What I saw was Copyright lawsuits and Defamation (libel) lawsuits. That totally matched up with what the lawyers on the free consultations said said about the most common lawsuits. Not one of the lawyers mentioned members wanting posts deleted when they quit a forum or message board. I can double check on that because I have more consultations scheduled this week.

You're free to do whatever you wish but I wouldn't advise this. I think you're better off keeping it in your terms of use and having information in a contact link that is conspicuously placed in your footer.

I don't get why you're against having access to my DCMA statement and contact info being at the top of the forum pages where it is very visible... Please share why you believe that the bottom is a better place. I would really like to know your reasoning.

Plus, considering your legal background (as you said) if you are willing to share anything else that you know at this point, please do. Would you also mind sharing what your legal background is? Are you a paralegal or an attorney?
Also, can you think of any other ways people could save money or time on getting legal assistance for their websites? Thanks!

Anyway, when I select an attorney to work on my Operating Agreement and Terms of Use which includes the Registration Agreement and Privacy Policy, I will post about that so that anyone who is interested will know how it worked and hopefully this helps everyone out. There is one person I like ...his office is close to where I work and he told me he could get my Operating Agreement
and Terms of Use done in two hours. He seemed friendly but straightforward, and he seemed to be very knowledgeable.
 

JulieVA

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Update!

:banana: Everyone, I LLCed my site yesterday! I am SO excited

In a few days my site will be a REAL company...When I started the site out as a hobby in 2008 I had no idea this would happen.

I even have a staff! I did the interviews for a Moderator late last week & picked one person. She is already working out pretty well so far. (I developed a really solid Moderator Handbook - with illustrations - which she was the test subject for & she said it was very good. The handbook seems to be Ok because she was able to jump right in and use the Mod buttons with no problems. I think I'll select one more Moderator if I get another applicant that is a good fit. That will make three Moderators on my site. Since moms can get busy, I think that's enough coverage for what we need. Today & tomorrow I will be conducting interviews for the volunteer Editor!

Anyway - Here's what I ended up doing. I continued to interview individual attorneys. At the same time I also took another look at online services - most notably - LegalZoom, RocketLawyer, and a few others.

After considering what I learned from my research and from the free consultations with the attorneys, I went with one of the online services. They did my LLC filing for FREE because I got a legal package. Note: I am taking care of the EIN on my own - That can be done @ IRS.gov in an online form which is dummy proof (seriously) and takes less than 5 minutes.

Anyway - I purchased a the package for one year and the price was totally manageable. I'll decide how to proceed in the future. Truthfully, I don't expect to have the same needs that I have now in a year...but we'll see. The reason I did got the package is because with that package I can get access to certain services from attorneys for free and I can get other services I anticipate needing because I am a "start up" business at a discount. Doing the math (and hearing the individual attorneys' hourly fees) - it was totally worth it. I may be able to phase in all of my legal protections much sooner because I got the cost lower than I thought it would be for the first few key tasks.

The online service provider has prices for the packages posted on their site, but you CAN get a discount on whatever you see. If you want the contact info of the person I spoke with who will absolutely give you a break with the prices, PM me & I will send you their direct phone number & email address.

It looks like my goal of getting my site set up as a business without dipping into my family's money is going to happen. I am very excited!

Enough about me LOL!

I found a really good article about hiring a lawyer -> http://www.legalmatch.com/downloads/Legal-Tips-eBook.pdf

Good luck everyone. Any questions, please post them here or PM me. I will try to help as much as I can.

JulieVA
 

bonejj

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LLC is certainly the way to go to get a lot of things done, you will make life a lot easier and better for yourself if you are earning any kind of income/advertising revenue from the site. If you go beyond just a couple hundred a year to say 7grand or more a year you will certainly want to look at moving to a S corp, it doesn't cost hardly anything to do it and you'll make more money as you'll keep more for yourself...

DO NOT GO C CORP!!!!!! You will get SCREWED!
 

esquire

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LLC is certainly the way to go to get a lot of things done, you will make life a lot easier and better for yourself if you are earning any kind of income/advertising revenue from the site. If you go beyond just a couple hundred a year to say 7grand or more a year you will certainly want to look at moving to a S corp, it doesn't cost hardly anything to do it and you'll make more money as you'll keep more for yourself...

DO NOT GO C CORP!!!!!! You will get SCREWED!
I wouldn't say to choose LLC immediately - the benefits of the corporate form for small business varies in different states and there may be issues you want to cover regarding your niche or profession. Some will provide you with tax benefits in choosing one over the other. You may want to speak to your accountant before making a decision to choose one corporate form over another. C Corporations are generally designed for a larger number of investors and when you're going through rounds of funding. At this point, I'll leave it to you and others to discuss these topics. Best of luck.
 

JulieVA

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Thanks for the tips everyone :)

When I begin to earn a bit more, I will consult an accountant.

Please keep the tips coming!
 

bonejj

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Thanks for the tips everyone :)

When I begin to earn a bit more, I will consult an accountant.

Please keep the tips coming!

You should check into your local chamber of commerce as it's possible you could get free business advice.

via mobile, crazy...
 

JulieVA

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Excellent tip.

I also registered at the Small Business Association at http://www.sba.gov/

I will be looking into special assistance for women and minorities too...
 

bonejj

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Excellent tip.

I also registered at the Small Business Association at http://www.sba.gov/

I will be looking into special assistance for women and minorities too...

If you were to be looking for government contracts you would have a leg up just being that you are the owner and a woman....

women business owners have a 45-46% preference for contracts because the minority acts within the government....
 

JulieVA

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Yes, but my site is only a parents' forum. There is no tie in to govt services :)
 

bonejj

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Yes, but my site is only a parents' forum. There is no tie in to govt services :)

but you could be very wrong in that regard. There are many services provided by the government to parents as a whole. Maybe you could start providing such services in some form or fashion through your site to the visitors and thus take advantage of government funds...

I'm just saying, don't be close minded in regards to your devotion to parents.
 

gazum

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LLC is certainly the way to go to get a lot of things done...

Well, as always there are things to consider. While the level of protection varies from state to state, it is never 100%. Google for "piercing corporate veil". If you are a single-person LLC you may be less protected than you believe to be.

At the same time by going LLC way, you are expicitly stating who is in charge. Somebody can say that "This site is run by an LLC and this person is the manager, so he is clearly responsible". List of LLC officers is almost always a public record.
 
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JulieVA

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Well, as always there are things to consider. While the level of protection varies from state to state, it is never 100%. Google for "piercing corporate veil". If you are a singe-person LLC you may be less protected than you believe to be.

At the same time by going LLC way, you are expicitely stating who is in charge. Somebody can say that "This site is run by an LLC and this person is a manager, so he is clearly responsible". List of LLC officers is almost always a public record.

VERY excellent point gazum.

A few of the lawyers suggested that having someone who is not a spouse own a very small percentage of your LLC is a good idea.

Others stated that the more company operating "formalities" you have, the better and, of course, the Operating Agreement must clearly show your company is not simply an alter ego of yourself. Two of the lawyers stated that the first document a court goes to is your Operating Agreement. That document needs to be on point.

I mentioned in the beginning of my article that even with all of this, you are not 100% protected from a lawsuit. Lawsuits can be filed for any reason against any person or entity.

Also, as you mentioned, if someone wants to sue you personally as a company owner, they can.

Running a business is risky. Period. But nothing worthwhile has zero risk. This whole thing is an exercise in lowering risk.
 
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bonejj

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Well, as always there are things to consider. While the level of protection varies from state to state, it is never 100%. Google for "piercing corporate veil". If you are a singe-person LLC you may be less protected than you believe to be.

At the same time by going LLC way, you are expicitely stating who is in charge. Somebody can say that "This site is run by an LLC and this person is a manager, so he is clearly responsible". List of LLC officers is almost always a public record.

you make some good points but there are easy ways to protect yourself by keeping everything out of your name and not connecting the 2 points together. If you start an LLC you simply start an account under the LLC name and keep all funds separate, that's how you distance yourself from the LLC so people can't go after your house, car and so on.

You need to do a little more digging on how to work these things.
 

JulieVA

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Hey everyone, I took esquire's advice about placing the DCMA statement link @ the bottom of my site. Head on over & take a peek: www.OurMomSpot.net

I still have to get the Terms of Use scrubbed and I need to get one mroe staff member...but I am making progress.
 
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