 some questions to see where the room was at before I really dived in. So, firstly, my name is Anna Blanche-Rabe, I'm an Australian, as you can tell by the accent, I'm an Australian trained attorney, I've been living in New Mexico for five years, I don't practice law in New Mexico. Instead, I have a communications consulting company, which has got my name in it, that predominantly works on producing content for mainly law firms, we do some social impact companies and some non-profits as well. We tend to focus on specialist content, about complicated topics, and we try to make those as accessible as possible for people, but enough about the company. What we're going to be talking about today is about international, oh, see, this woman is extraordinary, just so you all know, this is Jamie, and she is wonderful. Jamie is one of the organisers for WordCamp, and when you're at the party tonight, you have to go and say, thank you, now how do we make sure this turns on? Oh, perfect, let's turn, excellent, I love it when it works properly. That's my husband running. All right, so we've done that bit already, we've done that. The first thing I have to say ethically is that nothing I say today is legal advice. This is information only, and the idea is that it's to prompt you to go out and maybe do some more research and to get your own legal advice, depending on the jurisdiction you're in. Specifically attending this presentation, asking me a question, me answering that question, none of that creates a lawyer-client relationship, apart from the fact that, as I said, I'm not licensed to practice law in the state in which we're currently standing, aside, it's yeah, I have to say that, let's go, all right, so, okay, before I go in there, the first question I have for you all is why did you come to this talk? Just, I think really, say that again, okay, you're not going to get that, just so you know, okay, there we go, okay, yeah, that's a really good point, yeah, so kind of the idea of boundaries, national boundaries are a little bit different than maybe what they used to be, anybody else had a reason for coming, yep, okay, so some of what we're going to be talking about today might be a little beyond where you're at, I certainly have other talks and I have some resources that are going to address some very basic issues around law and being a blogger or being a developer, what we're going to talk about today is specifically where some of those things interact or intersect when you have either clients or visitors to a website that are not in the US, so that's kind of really the parameters of what we're going today. As you mentioned, there's a whole bunch of myths around these kinds of things that I hear from a lot of people, no matter where I am in the world, well, the law of that other country over there doesn't apply to me because I'm not physically in that country, as you said, the idea of boundaries and the way things have happened with our websites mean that we often have visitors from around the world, so who here has not, who can tell me that they have not had a visitor to their website, now maybe if you don't have a website, this is true, who has not had a visitor on their website from another country? Okay, how many of you routinely have visitors every day from more than 10 countries? 20 countries? Yep, many people here know that one of their websites is banned in China. It's actually not my business website, strangely enough, it was actually a blog that I was writing when I was doing a PhD, which didn't get finished, by the way, just so I don't have a doctor in front of my name. Yes, I had a friend who wanted to read something I'd written and he was living in China at the time and he sent me an email and said, just so you know, your website is banned in China. So I'm like, I don't know, that's a claim to fame maybe now. All right, so some of the laws we're going to talk about today, even though you might be in the US, you still might have to think about some of them, regardless of the fact that you've never even traveled outside the US. So that's the first thing. Second thing, we're going to talk a little bit today about intellectual property and we're going to talk a little bit today about contracts, especially for the designers and the developers among you. How many designers and developers do I have? Good, that's what I was hoping. I was hoping that because for designers and developers, I want you to just be aware of some of the pitfalls with working with international clients. At the moment, I have clients in five other countries that will probably build. But what is really fascinating for me with some of my content-based clients is that they often don't understand how to make sure to protect themselves. So when you sign a contract, what law applies to that contract, first and foremost, is going to be written in the contract. The first piece of advice I do have for you today is general advice, is read your contracts. I know they're boring, I know they may seem long, but there will always be a clause usually either towards the very bottom of the contract or towards the top that explains what jurisdiction's laws apply to that contract. Now, that can sometimes be a point of negotiation, but know that usually the bigger entity or the more complex entity will usually win that argument. So if you're dealing with a multinational or an international company and they send you a contract and it has a particular country or jurisdiction's laws as being the ones that apply, it might be a little hard to get them to shift. But if it's a B2B transaction where you're also dealing with another small business and you feel like you've learned enough to know that a particular jurisdiction is not going to be favourable to you, it's definitely something you want to explore. Now, what I can also tell you is that how many of you have companies that were formed, legally formed in a different jurisdiction to where you do your day-to-day business? No one else? My company was legally formed in Delaware? I live day-to-day in New Mexico. I'm registered as a foreign, my company is registered as a foreign entity in New Mexico. So what jurisdictions do we have people's companies registered in in this room right now? Texas? New Mexico? Minnesota? Alabama? Anywhere else? Say that again? So you don't have a company registration in the US at the moment? It's just registered? No, but you legally formed in the US? Do you have an employer identification number with the IRS? Okay. So international companies are another thing. I have a company based in Australia that does no business with my American clients. My American company does that. So yes, bear in mind that if that's kind of a weird concept to you, definitely sit down and talk with someone. In the first instance, that should be an attorney, although often an accountant can also be involved in some of those discussions with you. What state is best for you to file in? And how to maintain that over time, especially if you're going to be moving around. The third myth that we're going to talk a little bit today is that I own the copyright to everything I create. Now, I am throwing the cat among the pigeons here a little bit. Is there anyone in the room, and as I said, I'm playing devil's advocate that does believe that that's true. I own the copyright to everything I create. Yeah, here's the problem. What if you created that under a work for hire contract? You don't own the copyright. We're going to talk a little bit about what I mean by work for hire, because that's going to be particularly relevant when we're dealing with certain other countries. So yes, in the US, generally speaking, the default is you do own copyright for everything you create. However, if there's a work for hire contract, that's not the case. And as I said, certain specific, very prominent international countries have different rules around that. The next myth that I often deal with, especially when I'm dealing with bloggers, is that there's nothing I can do about someone stealing my words, images and designs. Does anyone believe that that's true? There's nothing you can do? Okay, there's a lot you can do. All right? And it's okay to believe in the value of the words and images you create. In fact, I would argue that everyone in this room needs to believe in the value of what they're creating. Because unless we have an attitude of respect towards each other in that way, I think it makes the world a not-so-nice place. But that's not really the lawyer part of me. That's a bit touchy-feeling. But basically, yes, we're going to talk a little bit about that. We're also going to talk about what happens if someone in another country steals your images and your ideas. Because I don't know about you, but I've had a few Russians steal my images and words over time. Anybody else had people in another country steal? Yep. Which countries? Do you know? I can't even tell you they stole my entire name. So they kind of created a sort of mural website? Yeah. Okay. That's the second time. Okay. Sounds like we need to find you a host that has some good security. It's a language that I can purge in. I don't know. Okay. Yeah, sometimes it can be interesting. So we'll talk a little bit. We won't get into too much in it. Finally, you need to intend to market to an audience in that second or third country for the lord there to apply. We'll talk a little bit more in detail why that's not always the case. Why your intentions might be good, but it doesn't necessarily mean that that's how it goes. Here we go. I want to answer this question before we even started. Why does this matter? Why do we even have this discussion? Because it's actually a worldwide web. Has anyone here been watching Holt and Catch Fire or has watched Holt and Catch Fire? Okay, yeah. Holt and Catch Fire is a television show. It's an AMC show that's currently on Netflix, yes, or Amazon Prime, one or the other. It's one of those two because that's all I have. They talk about it's kind of a fictional imagining of what the beginning of the worldwide web and ISPs look like. And it struck me as I was writing this just how worldwide it's become for something that really, in its very early days of military research around the world has turned into huge. So the first question I'm going to ask you that I want everybody to kind of think about is where is your host and web server based? Where is the based? Yes, well you run an ISP, right? So this is true. Does anyone use a host or a web server that's based overseas? No, I'm probably the only one again. So my web server and host is based in the UK. I've been using that web server and host for eight years. Since I started using them I've lived in five different countries. One of the reasons that I chose to stay with them has actually been the increasing, well the changes internationally to the ease with which law enforcement bodies and investigative bodies can access your server data, the barriers to that. So one of the questions I just really want to throw out there to you is to think through why you're using a server based where you're using them. Now your answer may come out exactly the same. I'm using a server based in the US and that's all I want to do. But for those for whom you may have some sensitive user data or you may have user data where you do want to potentially look at siloing that data either based in a specific country or because you are concerned about some of those thresholds for release of that user data to law enforcement, just think about where you might want to do that. I was speaking to Pantheon earlier. They were saying right now they can't silo it specifically to a certain country or to a location even outside the US. But from their perspective that might be something that will come in the next couple of years. So just bear that in mind. The next thing that I want to kind of just throw out there as key policies that I would argue every single website needs to have to legally protect themselves. This is pretty basic stuff. I would argue that every website should have a privacy policy, visible and public on the website. Every website should have, if they're using any kind of branded content how many in the room have employed branded content? Does anyone not know what I mean by branded content? Branded content is when a company pays or compensates a website owner or blogger to talk about a product. So there's usually some form of disclosure. It could be a giveaway. If you're doing any of that kind of thing, which bloggers in the room or even organizations who run blogs in the room might do, you need to make sure you have a disclosure policy on your website in addition to the Federal Trade Commission guidelines, like disclosures that you should have at the top of each post that you're writing about these things. I do have a reference to the FDC document later in the presentation. Thirdly, if you have any kind of legal or professional services that you are talking about on your website in your content. So you might be designing a website for an accountant, for a physiotherapist, for a personal coach, personal trainer. Those kinds of websites should contain legal and professional disclosures, explaining the qualifications of the individual, but they should also include industry-appropriate disclaimers and waivers. By that I mean, if you have a personal trainer's website, you want to make sure that includes things like results not guaranteed. We are not providing nutritional advice. Use these things at your own risk. I know on one level it might just seem like legalese, but there's actually been significant litigation on these topics. So as a general blanket, these are definitely things that I think you should consider, including on your websites. For designers, asking these questions and developers, asking these questions when you're adding those content pieces to that checklist. I didn't check Nathan's list from earlier today to see whether these are questions he had on his scope discussion, but certainly. Now these things, largely speaking, you're going to find samples. I don't recommend you just go to a website and lift what's on their website. I do recommend that you do your own reading, find something that you think might be close to what you want, and then go to an attorney in your local jurisdiction and have them review it. There's two reasons why that's good. The first is if you take something with you, it's going to cost you less than if they write it from scratch, generally speaking, as long as you're not bringing them something completely out of left field from a totally different jurisdiction. Secondly, by doing that, you're also going to be able to test out, and I encourage all of you, when you are seeking legal advice for any of this kind of work, you need to make sure that the attorney you're working with has some familiarity with the industry. So whether it's the developing, marketing, designing kind of industry, or whether it's content creation, intellectual property in terms of the writing side. Just ask the question, by taking something with you, you're going to get a better feel for whether or not the person on the other side of the table understands what's going on. Okay, just quickly, for privacy policy must-haves, just as the second paragraph explains this, the privacy policy should detail what is done with location data specifically, how that data is shared between the content provider, the mobile provider, and any third party providers such as ad networks, and how a user can revoke consent to the use of their data. Privacy policies should also indicate if you are collecting geotag data, like their actual physical location, it should also indicate how you use any information they may provide to you on the website. We're not going to talk about it HIPAA any more than to say this. If you are trying to collect HIPAA data on a website, you really need to think again. Be very, very careful. I'm talking to some of the global sponsors and most of them told me that they are not HIPAA compliant hosts. So just be aware that, and I'm sure that, do any of you deal with HIPAA websites that deal with HIPAA? Okay, you guys know how complicated this stuff is. But just be aware for everyone else, if someone is starting to talk about wanting to collect sensitive personal data on a website, ask them to think again and really give you a good justification for why that's happening, because that is definitely one area that can open you up to litigation. The reason why privacy policies have become a must-have is that there has been within the US significant litigation about not having these privacy policies. So for example, people collecting data on their website and then using it in ways that hasn't explicitly being given permission for, i.e. selling it on to third parties and having someone be able to track that back. Finally, the privacy policy should be written in clear plain language and include contact information for where people can raise any concerns they might have. I've given the specific app example because I'm going to talk about that next. Did anyone not hear about the iTunes situation last year where over a thousand apps were pulled off iTunes because of an issue with this? Okay, we're going to talk about that. Let me go to... No, I can just talk about it now. So basically what happened was that a lot of over a thousand apps had employed a third-party ad platform to put ads on their apps. Now, that third-party ad platform happened to be located in China, which in and of itself is not a problem, but that Chinese owner of that company decided to data-mine all data-mine from those apps and that basically caused a huge kind of privacy issues and what iTunes did was just kicked off any app on their platform that had used that third-party provider. Now, what was crazy, I think, and a little sad is that none of the... As far as I know, none of the app developers were complicit in that. None of the app developers knew that that third-party provider, service provider, was doing that to the data. So just be aware that you often can be held responsible for what third parties do in your name. Okay, for branded content, one thing I would say even when you're dealing internationally, so if you open up a giveaway to the rest of the world, which might be something that you might do, just make sure that you understand the rules on, say, raffles or giveaways in another country. Some countries consider a giveaway, especially if you're choosing a name at random to be a form of gambling, especially if you ask them to do anything to enter. So, for example, if you ask them to make a comment to enter, that might be considered sufficient consideration to be considered gambling. So just check, if you open it up to another country, make sure you understand what their country's rules are. What I will say about this is if you follow the US's rules on branded content, then you really won't go wrong, honestly, because the strictest rules in the world are right here, and that's going to be the FTC guidance. If you'd like a copy of this presentation at the end, just leave me a business card, and I'll email it out to you. We talked a little bit about legal and professional disclosures, and I mentioned that you should go with an attorney with samples in hand. These are the areas that I would suggest that you really need to be particularly concerned about. Cover yourself with contracts. Once you understand which jurisdiction a contract is going to be governed by, you need to have local legal advice to make sure that contract's going to be in your best interest. Consumer protection laws vary as do international property laws. So very briefly, for bloggers and graphic designers, make sure you have a contract and the contract clearly details copyright ownership. So if you are doing contract work with an agency in Australia, the default position is you do not own anything you create if you're doing it as a contract because the default position is work for hire. Work for hire basically means anything you produce is a fruit of that employment relationship and therefore is owned by the person who commissioned you to create it. Is all work done under an employer work for hire in America? No. Now, employer, are you an employee? Generally speaking, your employment contract will talk about that, and generally speaking, the answer is yes. If it relates to your employment duties, if it relates to your job position duties, but we can... You want to have an actual open discussion with them about that because the less you talk about it, the more likely it's going to be covered under your employment agreement and you may not want that. You need to make sure that you think about defending your copyright through DMCA takedown notices and platform-specific forms and requests. That's where, even if the copyright infringement is happening from somewhere else in the world, if they're doing it on a platform that has that takedown request and a lot of major platforms around the world have that, file those requests no matter how minor it may seem. I probably average five of those a month. I'm almost at a point where I'm just invoicing them for the use of the images. Understand that some countries require you to register copyright in an image or in a computer program or an app in order to ensure protection for statutory damages. So, in the US, well, anything you create immediately has copyright act protection. In order to maintain larger statutory damages up to $15,000 and more, you need to make sure you register it. Now, we can talk more about what that looks like, so mostly that doesn't mean you can't claim copyright infringement and get some compensation from the person infringing, but I'm talking about the statutory damages or why you need to register. So, the EU at the moment has what they call this proposed link tax. It's going to be a tax on using links to published news articles. It's going to be crazy if it happens. Spain introduced it and Google just went, we're out of here. And actually withdrew all of their Google news services from Spain. Germany also has it. Google hasn't quite done the same thing there. There's also a second European proposal that would require websites that have audio files to do what they call upload filtering. And that's going to cost anywhere between $10,000 and $25,000 for a medium enterprise to do this. And the idea is that it's supposed to check whether or not an audio file has copyrighted material in it. I suspect that's not going to ultimately be successful, but it is a proposal on the table that you probably should be aware about. I have a huge list of resources if people are interested. I added the Nepalese one for our Nepalese participant today. If you have a question about a specific country, send me an email and I can see what I can find for you. I think that's about... I'll leave this developer's one up there. The reason why I brought up the EU stuff is, generally speaking, what the EU does, the US often follows, even if it's up to 50 years later. The US often follows. So it can be very helpful to keep aware of what's happening in other parts of the world. Yeah, we didn't talk a lot about the location data and international privacy law. Does anyone have any questions? Before we're done, yes. So that's not going to be a... So when I'm talking about a privacy policy on a website, that's going to be when people visit the website. What you're talking about is a privacy policy that you might have someone sign for you to use their photograph. What is it that typically has a thing to do with it? Okay, so these are two different things. What you're talking about actually has nothing to do with websites at all. It does in the sense that if you have someone who has given you what we would... In the industry we call that a model release or a release of use of likeness. So somebody is giving you a license to use their likeness for publicity for your business or your organization. So that would be a separate document. Sometimes people have it on the bottom of tickets when they buy a ticket to an event. It will tell you, I know I signed a waiver to be filmed at this event. And it will explain that on there how you're giving permission for it to be used. But usually it's a separate thing. That's different because that's a two-way agreement. The privacy policy I was talking about on a website is very much a broadcast statement about how you're actually using data, location data predominantly. Does that help? Okay, anybody else? Yep. Yes, so New Mexico would be... It's usually this... Generally speaking, when I'm talking like this, I'm talking about a state or I'm talking about a country. Yeah. Yeah. And the rules for how a contract is governed in New Mexico are different than Texas, for example. Texas is much friendlier to the company who drafted the contract. There are other states that are much friendlier to the vendor, so maybe the little guy. Good, we're done. All right.