Living Trusts Can Avoid The Necessity Of A Probate Proceeding After Death

There are many difficulties and stressed which will be experienced by your loved ones upon your death. Probate does not need to be added to the list. It is a common fallacy that signing a will avoids the need for a probate proceeding. Yet, even with a will, an executor must begin a court proceeding following the decedent's death in order to properly distribute all of the decedent's property. In the state of Illinois, probate lasts at least six months and is required if the decedent had at least $100,000 in assets or owns any real estate in his or her own name alone.
While probate requires a court proceeding to ensure that the estate is properly distributed, the existence of a living trust can allow a decedent's survivors to avoid the courtroom altogether. This is because a living trust exists as a separate legal entity from the person who creates it. A living trust is similar to a box into which a person puts his or her property. Once that person puts his or her property into the box, he or she no longer legally owns the property. The box, or trust, does. Still, as the trustee of the trust, the creator can control the property in the trust and choose what property goes into the trust. Upon death, assuming the trust has been properly funded, the decedent does not directly own any property in his own name which requires distribution via the probate process as the property is legally owned by the trust. After death, a successor trustee named in the trust takes over the role of trustees.
While a living trust may simplify the process of property distribution following death, the creation of a living trust can require some effort. The title of all assets and/or beneficiary designations must be transferred to the trust. If the trust is not properly funded, any property left out of the trust may trigger the need for probate.
For example, real estate is typically transferred to a living trust whereby the individual or couple sign and properly file a deed. A new signature card for bank accounts and certificates of deposit are executed with the bank which show the living trust as the owner. Ownership of investment accounts are transferred into the name of the trust and the trust can be named as beneficiary of life insurance policies. Your attorney should review tax protected assets such as IRAs and annuities to determine the proper way that the beneficiaries on such instruments should be designated.
A living trust is revocable, meaning that it can be amended or revoked at any time before you die. Usually the costs of creating and funding a living trust are many times less than the cost of a court-ordered probate proceeding. Consult with your attorney if you have any questions regarding use of a living trust to avoid probate.
This article is intended to present general information for educational purposes, is not legal advice and should not be relied upon in connection with any particular matter. The reader is advised to immediately retain their own separate legal counsel with respect to any specific legal issue. Rights to bring a claim will expire through the passage of time by the applicable statute of limitations.

Ralph E. Elliott practices law at Law Offices of Ralph E. Elliott, A Professional Corporation which is comprised of Attorneys Freeport Illinois who have over 34 years of experience including an Estate Planning, Elder Law, Business and Personal Injury Law practice.
The firm is situated at 1005 W. Loras Drive, Freeport, IL 61032 which serves business, individuals and the agriculture community in Northwest Illinois.
©Law Offices of Ralph E. Elliott, A Professional Corporation 2011.

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Stop Elder Financial Abuse Now

What could be more despicable than stealing and deceiving the elderly for their money? Elder financial abuse, an issue that was recently brought to the spotlight by Hollywood actor Mickey Rooney, is a crime of exploiting senior citizens for monetary gain. Rooney sued his stepson and others for tricking him into thinking he was on the brink of poverty and forcing him to continue working while they swindle millions using his name.
After the case was settled, people were suddenly more aware of this urgent matter. So, how do you recognize this crime and stop it?
Elder Financial Abuse 101
This crime involves illegal and improper use of a senior citizen's funds, resources and property. Recognizing this crime is easy, however, they mostly happen within the family. Unless other parties observe and get involved, these crimes will go unnoticed.
The crimes involved in elder financial abuse involve trickery, deception, forceful access to funds and properties of a senior citizen. Most people who are guilty of this are caregivers, fraudsters and, sadly, family members.
Here are examples of the exploitations these fraudsters commit:
-Forging the signature of an elderly to access personal checks, credit cards and other financial accounts.
-Stealing prized possessions, cash, and pension checks
-Theft of identity- Most victims of this are senile elderly. Fraudsters take advantage of the elderly's confinement in a nursing facility and use his identity for personal or business transactions. Sometimes, even healthcare companies are guilty of this crime. Some charge excessively for unnecessary healthcare services. While there are those that offer special "prizes", which in the end forces the elderly to purchase. It is a good thing there are many vigilant bank fraud lawyers who take necessary measures to fight against these problems.
How to fight elder financial abuse
Hiring a good bank fraud lawyer to investigate how an elderly's money is being spent is one way of fighting elder financial abuse.
Look for a firm that specializes on elder financial abuse cases. There are many who investigate and litigate fraud actions involving insurance and banking claims. A bank fraud lawyer in this firm will even investigate wrongful death cases.
Here are some other ways you can prevent this abuse from happening:
-Keep your communication lines open with your elderly relatives. Check up on them from time to time.
-Observe, observe, observe! Be perceptive about any behavioral or physical change.
-Do a thorough research on the background of your caregiver! It is unadvisable to choose one through an advertisement. Look for licensed and bonded agency. You may also hire an investigator to examine the credentials of your caregiver. This ensures that your relative is in good hands and the caregiver is not a convicted felon of some sort.
-Keep an inventory of all jewelry, expensive gadgets, and properties. Make sure all the valuables are stored in a safe place.
When you know somebody who may be a victim of this kind of crime, it would be best to tell the authorities or refer a good bank fraud lawyer who can help them. If you know the family and do not wish to be called as someone who meddles in family affairs, you can search the internet and find anonymous hotlines you can call.

Abbie Kirby is a Senior CEO who knows a good bank fraud lawyer who is knowledgeable in elder financial abuse

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Cookies, FTC and Privacy - Why You Should Care About Them

Cookies have attracted lots of attention recently. I mean the tracking kind, not the edible kind in Christmas patterns and colors.
ScanScout, an on-line advertiser, recently settled a FTC enforcement action regarding the language in their privacy policy ("PP") about cookies. ScanScout's PP claimed that users could configure their browsers to block the cookies they use to gather information about users in order to send them targeted advertising. Turns out, however, the tracking cookies they were using were flash cookies that could not be blocked as stated. FTC found this to be deceptive and the enforcement action ensued.
What does this mean to you or your business?
Use of cookies
Consider not using flash cookies if you are currently doing so or considering so. Many people consider flash cookies deceptive and invasive. In fact, a primer on flash cookies by the Electronic Privacy Information Center shows that the breadth of information gathered by these cookies to probably be beyond the comfort zone of today's privacy-conscious consumers.
Have a Privacy Policy
Yes, it might be tempting to resolve this issue by simply not having a PP. After all, if you don't have a PP, you can't be found to be violating it right? Maybe, but you create other risks by deciding not to have a PP. First, consumers have increasingly shown themselves to be skeptical about having anything to do with websites that do not have privacy policies, so you might be losing business. Second, not having a PP will prevent you from using certain useful services (such as Google Analytics, which requires users to post a privacy policy) and conducting promotions or contests using many social media platforms.
Reference cookies practices in your Privacy Policy
Make sure that you have a full understanding of your cookies practices and that of any third party (such as Google Analytics) who provides apps or tools you use in your interface with users. Your PP should spell out exactly what cookies are used, whether they are persistent, whether you use flash cookies, how you use information gleaned from cookies (e.g. do you utilize information for targeted internal or external marketing), whether you share gathered information with third parties, and how users can block cookies (including providing a mechanism to block flash cookies - a key requirement of the ScanScout consent decree). Finally, if you use third-party services that utilize cookies, consider referencing the third-party service's cookies policy in your PP.
Finally, if you are going to be making any changes to your website privacy policy, make sure it is properly publicized to your clients, customers and/or users, ideally with a click-through mechanism where they must accept the new privacy policy before accessing your site.
What are your thoughts on use of cookies for marketing?

ERIC HSU is a Legal Success Strategist, accomplished speaker, and owner of Clear Focus Law.
The mission of Clear Focus Law is to show entrepreneurs, small biz and social marketing professionals how to use the law as a tool for empowering innovation and achieving success, both by building strong legal foundations to support the innovation and by establishing an effective and legally successful social media and web 2.0 presence to grow their business.
In addition to advising clients, Eric also speaks on social media legal topics, writes legal guides and blogs, and provides on-going training solutions.
Visit Clear Focus Law's website to learn how you can start to get a handle on how social media law affects your business.

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Defamation Liability Can Devastate Your Business - How to Recognize and Avoid It

Have you or your employees defamed anyone lately? Are you sure?
Is the prevention of defamation liability part of your social media policy or protocols? If not it should be. Recently an Oregon blogger found out the hard way with a $2.5 million defamation judgment. Luckily, defamation liability can be easily minimized by knowing what it is (and is not) and by using some easily implemented best practices.
What it is
Defamation liability results when you publicize false, purported facts about someone when these purported facts would subject the person to hatred, ridicule or shame, and you knew or should have known that the purported facts were false. Since social media is, by its nature, public, the "publicizing" prong of defamation is always satisfied as soon as you (or your employees) post your blog, update, tweet, etc.
Just the Facts
Defamation requires that the publicized information be in the form of purported facts. For example, posting that someone has AIDS, has been convicted of a crime, or is a cheat, are all purported facts and would be potentially defamatory if false. On the other hand, stating that someone was not pleasant to deal with is an opinion, as is stating that the writer simply does not like someone. Defamation liability generally cannot arise out of these opinion statements, caution is advised since many statements can straddle the gray area between fact and opinion. For example the statement that someone is "not ethical" or is "greedy" might sound like an opinion, but can easily be twisted around to be factual enough to be the basis of a defamation lawsuit.
Truth
The purported facts must be actually false. Truth, it is said, is the ultimate defense against a defamation lawsuit. If a person really does have AIDS, has been convicted of a crime, or is a cheat, then saying so through social media channels should not be the basis for defamation liability. Of course, there may be other reasons, including privacy liability why saying so may not be wise.
Negligent
Finally, even if the publicized information was in fact false, it must be shown that you either knew or should have known (with reasonable inquiry) that the facts were false. In other words, you must be shown to be malicious (knew it was false and posted anyway) or negligent (did not take the reasonable steps a reasonable person would have taken to verify the facts before posting).
Best practices
1) Have a Social Media Policy or protocol. This is critical, whether you have 500 employees or are a solo practitioner. The importance of having guidelines in place that everyone agrees to follow every time they post on social media for your business cannot be overstated. This is especially the case when defamation liability avoidance is concerned.
2) Be Professional. Regardless of how ugly things get with competitors, customers or anyone else, resist, at all costs, the urge to use your social media networks as a giant megaphone to air your differences. Nothing good ever comes out of this practice and usually you are just inviting trouble. Social Media should be used for purposes that advance your business' mission and goals. Period.
3) Report Facts through Links. If part of your social media strategy involves reporting on news or facts related to your business, consider using links to established, trustworthy media outlets, instead of being a reporter yourself. The federal court in the Portland blogger case made it very clear that bloggers don't have the same protections that traditional news media enjoys. By linking (and commenting on the news without adding or implying any additional facts if you need to) you let the pros take on the risk of defamation while still being able to get the facts out as needed.
4) Research if you Need to Report. If you simply must break a story yourself or put a different factual spin on an existing story, you simply must make sure that you have researched your facts and have a reasonable basis to believe they are true. Make sure to also keep good records of your research.
5) Make sure You are Insured. Finally, if worst comes to worst, make sure you are insured. While most of us are not going to have sufficient insurance to cover the $2.5 million verdict in the Portland blogger case, at least make sure that the commercial general liability coverage covers defamation liability. When I say "make sure" I mean to not only ask your insurance agent, but to find it in your policy!

ERIC HSU is a Legal Success Strategist, accomplished speaker, and owner of Clear Focus Law.
The mission of Clear Focus Law is to show entrepreneurs, small biz and social marketing professionals how to use the law as a tool for empowering innovation and achieving success, both by building strong legal foundations to support the innovation and by establishing an effective and legally successful social media and web 2.0 presence to grow their business.
In addition to advising clients, Eric also speaks on social media legal topics, writes legal guides and blogs, and provides on-going training solutions.
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Internet Crimes: Definition and Penalties

An internet crime, or cybercrime, refers to any illegal practice that involves the use of a computer or network, or targets a computer or network. According to the Federal Bureau of Investigation, their key priorities in regards to cybercrimes are: computer intrusion, online predators, piracy, and fraud. Computer intrusion costs individuals and companies billions of dollars every year. By breaking into personal computers, laptops, and networks, hackers can disrupt and sometimes permanently damage vital computer systems. The reasons for computer intrusion vary from the theft of personal information to illegal business practices to terrorism.
Child pornography and online predators are another important focus of the FBI. The Innocent Images National Initiative is part of their Cyber Crimes Program and is dedicated to fighting the spread of child pornography online. It is against federal and state laws to make, own, sell, or distribute any pornographic materials that contain minors. Although each state is different, even the possession of one picture can lead to five years in prison. As one of the fastest growing crimes on the internet, it can be used for a number of purposes. Pedophiles view it, but others use it to prepare children for child prostitution, an act known as child grooming. 18 U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children, states that violators can be punished by fifteen years in federal prison.
A crime that has garnered a mass amount of media attention is that of piracy: intellectual property theft. Intellectual property includes: music, books, movies, art, inventions, phrases, designs, and more. Materials that are protected by copyright or trademarks are illegal to copy or distribute without permission. Penalties for piracy vary based on the amount copies or distributed. The FBI has been working on educating the public regarding the seriousness of this crime and the fact that it is theft.
Lastly, another widespread internet crime is fraud. Fraud is a broad category of crimes that involve dishonest acts. When misrepresentation occurs on the internet, it becomes a cybercrime. The most common reason for fraud is monetary gain and can be civil or criminal in nature, depending on the law of the state. The main types of fraud are: identity theft, credit card fraud, bankruptcy fraud, and securities fraud.
If you have been accused of any type of internet crime, it is highly encouraged that you speak with a legal professional as soon as possible. As these crimes can be investigated by government agencies, you need a strong legal representative to be on your side. Time is crucial, so do not wait to get the help you need.

The Miller Law Firm has over twenty years of experience in criminal defense law. With a former assistant state prosecutor on their team, they have the skill and ability to handle even the most complex and serious criminal cases. By speaking to a Sarasota criminal attorney from their team, you could receive the strong legal representation you need to get your case dismissed. From drug crimes to DUI to sex crimes and theft crimes, they have handled hundreds of criminal cases. You deserve professional and high-quality legal defense and they could be able to help you get your life back on track and retain your freedom. To learn more about how they can help you, contact a Sarasota criminal lawyer from their firm. They are available twenty-four hours a day, seven days a week, so call today or visit their website at http://www.sarasotacriminaldefenselawfirm.com/.

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Preparing Open Source Software Compliance Guidelines

Purpose:
The purpose of these Open Source Software Compliance Guidelines (Guidelines) is to provide guidance in the development of procedures designed to verify compliance with the license requirements of various open source software applications and code (OSS) used internally or included in products for distribution. Technology lawyers, advisors and consultants need to be aware of issues surrounding open source software in order to properly advise their clients.
The output of these Guidelines should be (1) an Open Source Software Compliance Policy (OSS Policy) that describes the policies and procedures applicable to the company's use of OSS, and (2) an inventory (OSS Inventory) of all OSS approved for use within the company.
The OSS Policy must be designed with the company's culture and specific way of operating in mind in order to be effective. The OSS Policy should also be reviewed and updated on a regular basis.
The OSS Inventory is the ultimate output of these Guidelines and the OSS Policy. However, it will also serve as a ready document, in modified form, that can be provided to customers that may request a listing of OSS contained in distributed products and to a potential partner or acquirer which is performing due diligence.
It is important to note that 3rd party proprietary software will often contain OSS components. Therefore, particularly when such software is being included in a distributed product, it is necessary to have the vendor identify all OSS components so that they can be considered along the lines as set forth below.
Designated Gatekeeper:
A person or committee should be designated for approval of all OSS proposed to be used internally or included in products for distribution. In order for this procedure to be effective, notice must be provided to relevant company personnel that the company requires prior approval of all OSS utilized in any manner within the company. Such notice must be conspicuous and repeated at regular intervals. In addition, supervisors must also be instructed to reinforce this requirement. Special attention must be paid to development teams which are accustomed to pulling OSS from various places, and usually operate subject to tight deadlines.
Request for Approval:
1. Requests for approval should be submitted within the amount of time prior to use/implementation as stated in the OSS Policy. The approval process should be initiated with the submission of a document that contains at least the following information:
2. Name/Version Number/Source of Open Source Software
3. Name of Applicable License (e.g., GNU General Public License v.2, zlib, BSD), and Source Address for the License
4. Name of Entity/Person Granting License
5. Source Address from which OSS will be Obtained
6. Description of How OSS will be Used (e.g., internally, as a development tool, embedded in distributed product, etc.)
7. If included in distributed product, description of the manner in which these OSS will interact with the company's proprietary source code (i.e., will the OSS be compiled and/or linked statically or dynamically with the company's proprietary source code?)
8. The manner in which the OSS will be implemented (e.g., modified vs. unmodified, standalone, statically linked, dynamically linked, etc.).
9. Description of whether the OSS will be modified
10. Statement as to whether the OSS is a key product component
11. Statement as to whether the OSS well-known and widely used
12. Target date for OSS use/implementation
Approval Process:
The approval process involves examining risk areas relating to using the particular OSS. Risk areas may include:
1. Does the OSS license require making modified source code publicly available?
2. Does the OSS license require that source code for company's proprietary software be made publicly available? (e.g., will there be static linking of GPL code with company's proprietary software?)
3. Has there been litigation or other issues relating to the subject OSS?
4. Does the OSS license contain ambiguous terms, thereby potentially placing a cloud on company's rights to use the OSS in a certain manner?
5. Will lack of warranties and intellectual property indemnification pose a risk to company vis-à-vis customer expectation and demands?
It is important that the approval process be conducted quickly, and the expected time period for approval should be set forth in the OSS Policy. Otherwise, users and developers are likely to get frustrated and find ways to get around the procedures as deadlines approach.
When new versions of approved OSS are used, an expedited approval process should take place. This allows the OSS Inventory to be kept up to date, and will prevent gaps forming in the inventory that could end up becoming large holes.
Compliance:
The goal of an OSS Policy is to achieve compliance with each OSS license. Depending upon the licenses involved, compliance may include any of the following:
1. Inclusion in appropriate documentation of warranty disclaimers, liability exclusions, author attribution, and proprietary rights notices.
2. Inclusion in appropriate documentation of the applicable OSS end user license agreement.
3. Public delivery or availability of source code for the unmodified version or the modified version.
4. Public delivery or availability of source code for company's proprietary software if linked to a "copyleft" open source software code in a manner that requires this result.
5. Marking of modifications made to the OSS source code.
Audits:
On a periodic basis, at least annually, an audit should take place to verify that the OSS Inventory is accurate and up to date. The audit process can be as simple as distributing the OSS Inventory to key personnel who will sign off on it, or as complex as installing monitoring software that will identify OSS on the company's computer system. The extent of the audit will depend upon company's needs and the volume of open source OSS in use.
OSS Training:
Current and new employees should participate in an OSS Policy training session to ensure that they are aware of the company's procedures and requirements in this area.

William Galkin, Esq. is an Internet lawyer who has dedicated his legal practice to representing Internet, website, e-commerce, computer technology and new media businesses in the U.S. and around the world. Learn more about agreements needed by websites.

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How to Write Website Terms of Service (AKA Terms of Use or Terms and Conditions)?

Terms: The Background
Why do we care about a web site's Terms and Conditions? Everyone knows that a site needs to have legal Terms. Few people think about the obvious question: Why?
While our statutes, regulations and past cases are full of laws and their applications when it comes to everyday interactions, few laws and cases exists with respect to online interactions. Why? Our cyber universe, as a mature legal arena, has existed for only some ten or fifteen years. When compared to the hundreds of years of "real world" interactions, its easy to see why many legal "holes" exists in our system.
Under US law, these legal "holes" are filled up with with either judge-made interpretations or privately drafted contract law. Given that on any single day, a judge reviewing an online case may have come from family, criminal or juvenile courts, we would rather leave as little for judges to decide on their on as possible. We achieve this through proper negotiation, drafting and implementation of site Terms.
Luckily for us, the US, as opposed to many civil code jurisdictions, respects privately negotiated contracts. Web site Terms are nothing more than privately negotiated contracts. Unless you realize this important point, you will end up leaving too much for judges to decide.
Three Common Mistakes
Failing to realize that web Terms are privately negotiated agreements, most web site operators make three common mistakes.
They Copy Other Sites' Terms: The most common way for site administrators to "draft" site Terms is by copying it from other sites. Worse, they copy it from some site touting its Terms as a standard that once edited can be used by anyone. Why? because, few administrators understand how important these Terms are. Fewer still understand the impact Terms have on each and every future online dispute.
They fail to Negotiate the Terms: The most common mistakes made by site administrators is believing that if they post Terms on the internet, they will bind visitors. That is equivalent to posting mortgage papers on the wall of a bank and believing that everyone who enters will be bound by those documents. Web site Terms must be negotiated to be valid. This is a critical component of online compliance; few, however, understand how online negotiations take place.
They Don't Change with the Times: Internet laws "develop" or "mature" through case law on a daily basis. Since so few cyber laws are codified through statutes, compliance can only be reached through Terms amendments reflecting these latest rulings. Many site Terms, however, were drafted 6 months to 3 years ago. Administrators must start thinking about making key changes to Terms on a regular basis.
The Risk of Non-Compliant Terms
In our representation of online companies, we see four main areas of risks faced by clients. These risks are easily avoidable; however, due to a lack of understanding risks often mature into costly if not destructive forces for a young company.
Many online companies unknowingly make promises to online users that they never intend. I've seen clients with subscription based pricing models having copied Terms relevant only to one time charge sites. As a result, they were liable for wrongful charges. Some clients with upstart e-tail sites, ended up making consumer support promises which only the like of Amazon or Buy.com could make.
Important contract provisions get struck down. When online companies fail to understand that Terms must be "negotiated" with users, they end up surprised when judges strike down provisions that are employed by countless other sites. The typical response is, "How could a judge do this? It is Standard industry practice."
The Company assumes unnecessary levels of liability. When Terms are not properly drafted and negotiated, incorrect provisions can result in substantial corporate liability. There are countless class-action websites run by attorneys soliciting clients for class action law suits against online companies. Having the wrong Terms can be devastating.
Administrators facing personal liability. Hard to believe, but when Terms are drafted improperly the owners and operators of sites can face liability personally, not just as a corporation.
Step 1: Define Your Goals
It may sound strange, but before you can start drafting any Terms you need to figure out what your goals are. The Terms must reflect your goals. More importantly, they need to avoid saddling you with unnecessary obligations.
If you are building an affiliate marketing campaign and deploying squeeze pages, what are your goals? You want to build a mailing list, that's obvious. But what are the Terms of the transaction? You may want to give them a free gift or service in exchange for information. Alternatively, you may want them to read product descriptions. Either way, what do you want you customers to do?
If you are building a forum or soliciting product reviews, what do you want users to do? You want them to post comments but you want them to behave in accordance with the law. What does that mean? How can their behavior make you liable to third parties?
If you are building an e-tail site, what do you want to accomplish? You obviously want to make sales, but you also don't want to be liable for faulty products, lost shipments or false advertising.
What if you are designing software that runs on the internet? You want to make sure it is deployed in accordance with legal allowances. You also want to make sure that its not distributed without your consent. What about a dating site? Here you want to make sure that members are truthful and that people interact safely.
Every online product or service is unique. Start by defining your goals. There can never be too many. The mistake is to just ignore this stage.
Step 2: Where is Your Liability?
Once you figure out what your goals are, you need to think about where potential liability can come from.
If you're developing an affiliate marketing campaign, you face liability from potential false advertising and product liability.
If you you built a widget that runs off of tweeter, you face potential trademark and copyright violations in redisplaying tweets.
If you run a forum, you face publisher liability for comments made by users.
If you developed software that automates posting to Craigslist, you face liability for enabling your users' unintentional violation of that site's terms of service.
If you develop a squeeze page you may face privacy concerns due to follow up advertising.
If you develop a digital entertainment download site, you may face liability due to copyright infringement for ringtones and games.
If you build a social network site, you face liability for intellectual property infringements for users' posting.
There is unlimited forms of liability faced by online companies. The trick is to give some thought to all potential issues that can arise in the future, however remote. Always ask, what can someone end up being unhappy about? Even a $2.99 download product can result in millions of dollars in liability.
Step 3: Define Your Customer's View
It's one thing to figure out what you want. It's quite another thing to figure out what your customer wants to achieve. Don't forget what we said earlier on: A web site's Terms is a negotiated agreement. It can never be one sided or it risks being thrown out by a judge. So what do your customer want?
A customer who clicked on an advertisement to an affiliate marketing site, wants truth in advertising regarding the product.
A visitor to a squeeze page wants an exchange of his information for value. The e-product must be delivered as promised.
A subscriber to a newsletter wants his information kept confidential from 3rd party marketers.
A member to a dating site wants his personal information kept confidential from other members unless he wishes them revealed.
A customer of a digital entertainment site wants his digital game to operate properly.
A customer downloading a ringtone wants to make sure that he is paying for one download and not paying for a subscription.
A buyer from an e-tail site wants to know who to return the product to in the event of a complaint.
A client posting a review wants to make sure you keep his identity confidential.
If you haven't given thought to what your customers want, a judge will. The negotiation starts by you thinking about your customers needs.
Step 4: Enable through Negotiation
So how do we put everything together? How do we enable our goals, while minimizing potential liability and allowing for customer wishes? We negotiate with the customer. I know this sounds strange. How can you ever negotiate with a visitor to a splash page?
Terms of service are worth little if a court is likely to later dismiss many of the key provisions. Courts over the past few years have struck down many important sections of leading sites' Terms as being too one sided. How do you avoid it?
Focus on the best form of "consent". Most web sites at best offer a link at the bottom of a page to the site's Terms. Others go a little further by requiring the users to check a box as having "agreed" to the site's Terms. However, if you have a provision that you "must" make sure that a court will uphold you can do better. There are countless options available to make sure that a client reads and consents to important terms (e.g. displaying summarized terms of service).
For some key issues, like dispute resolution, afford the user options. Most attorneys, inexperienced in online law, draft straight forward terms. As they try to bind users, they fail to understand that unless they build options into the Terms (like how to best resolve disputes) judges are likely to strike the provisions down.
Don't fail this step. Negotiate fair Terms with your customers by giving them ample chance to consent to important provisions and providing them with options on how to best implement the Terms.
Step 5: How to Make Changes?
You can be assured of one thing. You'll have to make ongoing changes to your Terms. Not only are your business practices likely to change over time, online laws change on a regular basis. As online legal cases make it through the court system, we must incorporate into existing Terms any new legal interpretations and findings. Failing to do so, assures us of stale and irrelevant Terms. Basically, absent amendments to our Terms, the goals we set up earlier while minimizing liability will be ineffective.
But how do we make changes? If we look at the typical terms of service agreement, we are likely to see a statement such as this: "XYZ reserves the right to amend these terms of service at any time, with or without notice to the users. It is the user's obligation to check this page from time to time to see if any changes to the terms were made."
Does this provision seem strange? How often have you heard of a contract that can be amended unilaterally by one side without notice or the option to back out? Not often! That's because, in our normal daily lives we would never agree to such a contract. So why should such a contract apply online?
Courts have, in online cases, consistently rejected contract provisions which were deemed too onerous when one side did not have the opportunity to choose among alternatives, negotiate or withdraw. From cases concerning arbitration clauses to subscription pricing, courts have rejected provisions that are too one sided.
While this provision is widely accepted in the industry, I would not advise building an online business based on the broad application of unproven and legally weak provisions. Avoid the risk of a court rejecting your Terms. The solution: NOTICE. Go out of your way to provide your users with notifications of any changes made to your policies. Send out email and txt messages. Post notices of revisions to your site. Have members "re-accept" the new Terms.
You can never do too much when it comes to providing notice of changes.
Step 6: How to Control Liability
So by now, we negotiated compliant Terms for our online business. Is that enough to control our liability. No! To assure that any potential future liability is contained, you must follow these three steps:
Follow the Terms: This may seem so simple, but so few actually follow it. You need to know your Terms and you need to follow the Terms. If you made promises, keep them. If you provided customers with procedures they need to follow, respect them. Don't create a situation where you actually create liability for yourself by having drafted compliant Terms but having failed to follow them. Remember, since there are many "holes" in the online legal system, judges rely on privately negotiated contracts such as Terms. Your failure to follow your own Terms will be read against you. You would have effectively breached your agreement with your clients.
Teach your Clients: So you "negotiated" your Terms through proper usage of the "acceptance" procedure. But do your clients know what to do? Often you liability is tied to your clients' behavior. So go out of your way to teach them proper and lawful behavior. From support forums to seminars, from conference calls to newsletters - Build a culture of education by teaching your clients the lessons that are important to you.
AND... Build Liability Proof Domestic and Offshore Corporate Structures.
Build Liability Proof Corporate Structure
After all is said and done, don't forget that your best ally when it comes to managing potential liability is the corporate structure that you've set up.
Basic corporate structures, if properly set up and managed over the years, will provide you with some liability protection. That might be enough for some simple online businesses such as squeeze page powered affiliate marketing campaigns and e-tailers.
For other online businesses, a more sophisticated form of domestic and offshore corporate structure is needed. Believe it or not, your greatest risk will not come from government. It will come from competitors. Everyday, large tech companies compete with smaller more nimble companies using the court system. And why not? In court, the larger companies have an advantage - money.
Many entrepreneurial companies have gone out of businesses after being dragged into court by larger companies. For many online and software companies, compliant Terms will not suffice. They need to supplement those Terms with a structure that evens out the odds in court.
This is a topic too large for this eGuide. Speak with an attorney about the design of domestic and offshore networks of online compliant corporate businesses.
Where Do We Go Next?
Sit back and start designing your site's Terms. The more questions you have, the better it will end up. And remember what we said in the beginning of this eGuide: A Site's Terms is only one component of its overall online compliance.
Make sure your Terms integrate and support your business' overall online compliance strategy including:
Online Privacy Software Compliance Mobile Compliance Direct Marketing (email and txt) Intellectual Property Compliance (trademark and copyright) Online Advertising Online Promotions (contests and sweepstakes).
Once you design an overall compliance strategy, examine your business' liability exposure and the ability to incorporate an online liability management system based on both domestic and offshore corporate structures.

By: Lior Leser, Esq. - Web 2.0 Lawyer
http://web20lawyer.com/
Lior Leser counsels Internet, mobile and software companies as a head of the LYL Law Group. Mr. Leser earned his J.D. at Stanford Law School (Stanford, CA). He also attended Sophia University (Japan) and the London School of Economics (London, UK) for advanced studies in Finance. He attended Brandeis University (Waltham, MA), where he earned an M.A in International Economics and Finance and a B.A. in Economics.

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