your nonprofit’s web site: “home sweet home (page)” scott j. ward, esq. kenneth e. liu, esq....

Your Nonprofit’s Web Site:“Home Sweet Home (Page)”

Scott J. Ward, Esq.Kenneth E. Liu, Esq.

Gammon & Grange, P.C.

This material constitutes legal information, and is NOT legal advice. The information in this presentation is current as of Sept. 15, 2004. Because the relevant laws may have changed since that time, you should not rely upon this information, but rather should always consult legal counsel.

Copyright © 2004 Gammon & Grange, P.C.

Introduction: Home Sweet Home (Page)

1. Secure the title to your property: – Protect your domain name

2. Secure the home on your property: – Make sure you own your website

3. Secure the furnishings in your home: – Protect your website content

4. Secure your guest list and be careful who you invite inside:

– Avoid infringing others’ IP


Introduction: Home Sweet Home (Page)

5. Secure the entries and exits: – Be careful how you link to other websites

6. Secure your guest rooms: – Protect your guests’ privacy

7. Secure your home from the Tax Man:– Avoid unrelated business income

8. Secure yours doors to cyberspace:– Avoid solicitation and jurisdiction risks


Secure the Title to Your Property:Protecting Your Domain Name

• Search the title before you buy the property– Make sure your domain name doesn’t infringe

another’s trademark– Conduct a trademark search

• Screening search• Comprehensive search



• Secure the title to your property: Make sure others don’t violate your domain name (and trademarks)– Register with the U.S. Patent & Trademark Office:

• your trademarks• your domain name (if used as a trademark)

– Obtain variations of your domain name and trademarks• .com, .org, .net, etc.• abbreviations• plural, singular, and other variations• typosquatters: common misspellings• detractors: yourorgnamesucks.com



• Title the property in the right owner name:

– Be sure to register the domain name in the name of your organization – not in the name of an employee or a consultant



• Defending your property: If you have to challenge a cybersquatter:– Send a cease and desist letter,– Negotiate a settlement,– Arbitrate under the ICANN Uniform Dispute Resolution

Policy, and/or– Litigate under the Anticybersquatting Consumer

Protection Act

• Owning a registered trademark used in the domain name is important


Secure the Home on Your Property:Making Sure You Own Your Web Site

• No contract with the developer may mean you don’t own your site

• Development contract should include:– “work for hire” provisions– assignment of title provisions– intellectual property provisions

• you own site (or as much as developer will agree)• you have license to all developer software & tools

– (some) payment conditioned on satisfaction


Secure the Furnishings in Your Home:Protecting Your Web Site Content

• Contracts with outside content creators– “work for hire” and assignment provisions– broad “all future media” language

• Contracts with content licensors– get broadest license possible– broad “all future media” language

• System to track content rights & uses


Secure the Furnishings in Your Home:Protecting Your Intellectual Property

• Using copyright and trademark notices– Use ® symbol on all registered trademarks– Use ™ symbol on all other trademarks – Put copyright notice on all appropriate texts

• Give proper attribution to copyright holder



• Use “Terms of Use” for web site– Statement of copyright / trademark ownership– Limited license for personal use– No copying without permission– How to obtain permission



• Use “Terms of Use” for web site (cont’d)– Disclaim all warranties– Disclaim error liability - site is “as is” – Disclaim responsibility for links– Limit your liability to a stated amount– Requiring mediation or arbitration for disputes– Providing exclusive jurisdiction in your state

(though may not be effective)

• The more interactive the site, the more important it is to have a “Terms of Use” agreement


Be Careful Whom You Invite Inside: Avoiding Infringement of Others’ IP

• Be sure that your website doesn’t have unauthorized content:– Your own postings– Third party postings

• (chat rooms, bulletin boards, etc.)


Be Careful Whom You Invite Inside: Avoiding Infringement of Others’ IP

• Review all content BEFORE posting to ensure that it does not injure anyone– Violation of intellectual property rights– Defamation, slander, invasion of privacy– Harassment and discrimination– Truth in advertising laws– “Commercial misappropriation”

• Use appropriate disclaimers and notices


Be Careful Whom You Invite Inside: Avoiding IP / Posting Liability

• Register a “Designated Agent” – Under the Digital Millennium Copyright Act

(“DMCA”)– To receive notices of alleged copyright

infringement

• Sail Into the “Safe Harbor” under the CDA– Under the Communications Decency Act– ISP has right to remove offending content

without risking higher “publisher” liability


Secure the Entries and Exits:Using Care in Linking to Other Sites

• Linking Problems– Links to problematic / questionable sites

• Contributory copyright infringement• Offensiveness to your visitors• Remember that content on other websites can

change w/o your knowledge

– Questionable linking practices• “Framing”• “Deep” links vs. “surface” links

– Unsolicited / unauthorized links to your site


Secure the Entries and Exits:Using Care in Linking to Other Sites

• Linking Solutions– Review all links before adding– Obtain written (email) permission to link– Discontinue any link if requested by site– Use frames and “deep links” fairly – Use a link disclaimer in “Terms of Use”– Use a “now leaving our site” page for

questionable links


Secure Your Guests’ Rooms:Respecting Users’ Privacy

• Web privacy practices implicate many laws– Federal privacy laws & regulations

• E.g., 1998 Children’s Online Privacy Protection Act

– State privacy laws & regulations• E.g., 2003 California Online Privacy Protection Act

– Foreign jurisdictions• E.g., European Union Privacy Directive

– Much proposed legislation in the pipeline



• Web privacy practices implicate multiple jurisdictions and regulatory authorities– Federal

• E.g., Federal Trade Commission• E.g., Internal Revenue Service

– States • E.g., State Attorneys General• E.g., State charitable solicitation regulators

– Foreign jurisdictions• E.g. European Union



• A privacy policy may be a binding contract– Usually enforceable against web site operator– Some debate whether enforceable against web

site users / visitors• Stronger argument if user required to affirmatively

consent to policy in some way


Secure Your Guests’ Rooms:Evaluating Your Privacy Practices

• Identify all “Personally Identifiable Information” (“PII”) that web site collects

• “PII” may include: – Name– Home or other physical address – Social Security number– Email address – Other online contact information, such as:

• instant messaging user identifiers • screen names that reveals an individual’s email address



• “PII” may include:– Telephone number– A persistent identifier (e.g., a customer number in a

“cookie” or a processor serial number), where identifier is associated with individually identifiable information

– Combination of a last name or photograph of a person with other information so that the combination permits physical or online contacting

– Information that operator collects online from a person and combines with an identifier described above



• Identify ALL PII web site collects• Identify ALL ways and places web site:

– COLLECTS PII– USES PII– SHARES PII with others

• Identify all jurisdictions from which web site may collect PII

• Identify all laws and regulations that may apply to web site’s privacy practices


Secure Your Guests’ Rooms:Implementing a Privacy Policy

• Prepare a policy that accurately describes your site’s actual privacy practices

• Follow FTC’s four key privacy principles– Provide NOTICE of …

• What PII your site collects• How your site uses PII

– Provide CHOICE about uses of PII– Provide ACCESS to review / correct PII– Provide SECURITY for PII


Secure Your Guests’ Rooms:Implementing a Privacy Policy

• Practical measures to implement policy:– Make sure policy is 100% accurate– Make sure policy complies with applicable laws– Review the policy & your practices regularly– Update policy as practices and/or laws change


Secure Your Home from the Tax Man:Addressing Exempt Organization Issues

• The IRS is watching nonprofits’ web sites:

– IRS Form 1023, Application for Recognition of Exemption

– IRS Form 990, Annual Information Return of Organization Exempt from Income Tax


Secure Your Home from the Tax Man:Addressing Exempt Organization Issues

• The IRS is watching nonprofits’ web sites – “Our agents are surfing the web, looking at exempt

organization web sites.” • Robert C. Harper, Jr., Manager, EO Tech Group 3, IRS

• The IRS is sending letters to nonprofits: – “We’ve been looking at your web site. Is there

anything you want to tell us?”– Sending print-out of web site and asking nonprofit to

admit that everything said on the web site is true.


Secure Your Home from the Tax Man:What Is the IRS Looking For?

• Late 2000 – IRS “Request for Comments” • “Need for Guidance Clarifying Application of IRC to Use of the

Internet by Exempt Organizations”

• Two primary areas identified in IRS Request:– Political and Lobbying Activities

• Also identified in informal comments by IRS agents

– Advertising and Other Business Activities• IRS has opined on these issues in 2003 PLR• IRS EO Work Plan promises to issue guidance in 2004 on “the

Internet and unrelated business income tax”


What Is the IRS Looking For? Lobbying

• IRS has asked (but has not answered) whether a §501(c)(3) EO is lobbying if it:– Provides a link to web site of an organization

that engages in lobbying• Link to specific page with no lobbying activity• Link to the web site generally• Link to specific page with lobbying activity

– Shares a web site with a §501(c)(4) or (c)(6) engaged in substantial lobbying


What Is the IRS Looking For? PPCA – Political Campaign Activity

• If §501(c)(3) EO maintains a web forum, are a user’s political postings attributable to the EO? – Does the answer vary depending upon EO’s level of

participation in forum (e.g., editor, moderator, etc.)?

• Is it prohibited political campaign activity for a §501(c)(3) EO to provide a link:– To a candidate’s web site?– To multiple candidates’ web sites?– To another organization that engages in political

campaign intervention?


www.YourNonprofit.org

OUR LINKS:

http://www.yournonprofit.org/



OUR LINKS:Mr. Sterling David Allan Providential

Mr. Michael J. Badnarik Libertarian

Mr. Michael W. 'Mike' Bay National Barking Spider Resurgence

Mr. Jackson Kirk Grimes United Fascist Union

Mr. Andrew J. Kensington United States Justice Party Americale

Ms. Temperance Alesha Lance-Council Anti-Hypocrisy

Mr. William Kevin Lowry Constitution

Ms. Diana Ramsey-Rasmussen-Kennedy Fair Representation

Mr. Thomas K. 'Major Tom' Reed 21st Century Prohibition

Mr. Larry J. Schuetter Turtle

Mr. Brian Baker Springfield Menorah-Thor

Mr. Michael Ross Tunick Strauss Mike's Party



What Is the IRS Looking For?PPCA – Political Campaign Activity

• IRS has raised, but has not yet answered, these questions about political campaign activity

• Principles that may apply: – Nature of web site to which EO links– Specific page on web site to which EO links– Range / spectrum of sites / pages to which EO links– Purposes and/or effect of EO participation in forum


What is the IRS looking for? Advertising and UBIT

• “UBIT”: Unrelated Business Income Tax– “Unrelated Business” =

• trade or business• regularly carried on by exempt organization• not substantially related to exempt purposes

– UBI is taxable at corporate rates– Too much unrelated business activity may

jeopardize exempt status


What is the IRS looking for? “Advertising” vs. “Acknowledgement”

• Does a link from EO’s web site to a sponsor’s web site = advertisement or acknowledgment?– No UBI for “acknowledgment” of sponsorship

• “Qualified sponsorship payment” = payment made by business that receives no substantial return benefit other than use or acknowledgment of name and/or logo

– UBI for EO’s advertisement of good or service, i.e., • If EO promotes / endorses a good or service, or • If fee to EO is contingent on level of attendance, etc.

– E.g., # of hits on web site



OUR SPONSOR:

YourNonprofit thanks our primary sponsor, which has provided a generous grant to support YourNonprofit’s charitable programs and the YourNonprofit.org web site:

Corporate Sponsor222 Corporate Sponsor Roadwww. Sponsor.com


http://www.corporatesponsor.com/

http://www.corporatesponsor.com/


www.SPONSOR.com

Corporate Sponsor is proud to support YourNonprofit.org’s

web site

http://www.sponsor.com/


www.SPONSOR.com

YourNonprofit happily uses and endorses Corporate Sponsor’s

excellent products



What Is the IRS Looking For? Advertising and UBIT

• IRS less sure that type of link matters:– Static, passive logo? – Banner ad? Flashing banner ad?

• But target of link may matter greatly:– Link to page re: business’s support of charity? – Link to informational / general pages of business’s site? – Link to home page of business’s site? – Link to page(s) of site where “related” products sold? – Link to page(s) where “unrelated” products sold?– Link to product page with EO’s endorsement of product


www.SPONSOR.com

Corporate Sponsor will pay YourNonprofit 3% of every purchase that you make at

www.Sponsor.com




What Is the IRS Looking For? Advertising and UBIT

• What if EO gets $$ from linked-to business for customers referred by EO web site?


Secure Your Doors to “Cyberspace”:Addressing Charitable Solicitation

• Charitable Solicitation Regulations– 47 States and DC regulate solicitations– Religious organizations exempt in some states,

but often must apply for exemption– Regulation/registration also applies to

fundraisers/consultants


Secure Your Doors to “Cyberspace”:Recognizing “Solicitation”

• “Solicitation” is:– a request, directly or indirectly, for a charitable

contribution ...– when and where the request is received [no

contribution necessary] ...– by just about any method:

• oral/ written; • direct mail; • handbill or mass advertisement; etc.


Solicitation By Internet and Other Means

• Internet solicitations as element of broader campaign– If otherwise required to comply everywhere,

internet solicitation does not increase requirements

– If exempt in certain places, exemption usually will apply to internet solicitation, too


Solicitation By Internet: The Search for a General Rule

• Charleston Principles: Registration required if solicitation through:– interactive web site, or – non-interactive web site, but also

• specifically “targets” state residents; or• charity receives $$ from state residents on repeated

or substantial basis; or• charity promotes its web site in the state;• possible exception for geographically limited

charities clearly soliciting locally on the web


Solicitation Solely By Internet:The Search for a General Rule

• General rule evolving in most states:– Your organization is subject to charitable

solicitation regulation in that state IF: • Your web site is accessible in the state,• Your web site in some way solicits, requests, or

enables contributions or donations, • You receive a contribution from a state resident, and• You do not return the contribution.


Solicitation Solely By Internet:The Search for a General Rule

• General rule evolving in most states:– Your organization is subject to charitable

solicitation regulation in that state IF: • Your web site is accessible in the state,• Your web site in some way solicits, requests, or

enables contributions or donations, • Your organization has physical location in the state.


Secure Your Doors to Cyberspace:Addressing Web Jurisdiction

• General rule: interactivity / contact are key– “Passive” site alone is not enough– “Passive” site + actual contact with state

resident may be enough– “Interactive” site increases risk– “Interactive” site + actual contact with state

resident is usually enough

• Practical rule: Be prepared to be in court anywhere you have assets located


Secure Your Doors to Cyberspace:Limiting Web Jurisdiction

• Possible ways to limit jurisdiction– Limit interaction via the web site

– Limit non-Internet promotion / solicitation

– Decline donations from undesired forums

– Expressly state that site is not directed to users in risky forums

– Restrict access to site by users in risky forums


Conclusion

• Securing Your Home (Page)

• Question & Answer

Your Nonprofit’s Web Site:Home (Page) Sweet Home

Scott J. Ward, Esq.

Kenneth E. Liu, Esq.

Gammon & Grange, P.C.www.GG-Law.com

http://www.gg-law.com/

your nonprofit’s web site: “home sweet home (page)” scott j. ward, esq. kenneth e. liu, esq....

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