Our E-Commerce Legal Practice

The Nissenbaum Law Group has focused in the area of e-commerce since the dot com boom of the late 1990s. In the intervening years, the firm has handled everything from infringement disputes to copyright and trademark filings; from the unique laws that relate to apps to the licensing of digital intellectual property. Digital law has been a true growth area for the firm’s practice.

Through that representation, it has become clear that there are a number of ways that e-commerce websites can improve their business model simply by utilizing the applicable legal principles. What follows is a list of four examples.

4 Ways of Using the Law to Enhance Your E-Commerce Website

1. Having the Correct DMCA Functionality
The Digital Millennium Copyright Act (DMCA) requires that you provide a means by which your e-commerce website can be advised that someone has posted or otherwise utilized intellectual property that has been copyrighted by others. This raises two items of functionality, one of which most e-commerce websites that post materials from users adhere to, and the other of which many e-commerce websites ignore at their peril.

The first is providing a link that allows the public to notify the owner of the website that there is a claim of copyright infringement related to certain posted material. Generally speaking, most websites that have such a link are circumspect about removing the material.

However, the second aspect is the one that often is lost in the process and can result in undermining the legal position—or even profitability—of the e-commerce website. That is the fact that the party filing the DMCA notice must take legal action to enforce its rights with respect to the alleged infringement within a very short period of time. If that is not done, the website can and often should reverse its removal of the material.

There are a number of exceptions and nuances to this process which are beyond the scope of this discussion, but the key point is that because much of the time the websites do not re-post the material, there are many situations in which the DMCA has been misused by e-commerce businesses filing such notices to delete posts by their competition. Investigating and policing this issue is critical to the proper functioning of an e-commerce website that receives a DMCA takedown request.

2. Copyrighting the Website Involves More Than Meets the Eye
Most businesses will copyright their website—if at all—by applying to the United States Copyright Office to protect the graphics and text that is viewable by the user. However, they will frequently ignore another level of protection which can also be critical: copyrighting the underlying code. The law provides that the code of a website can itself be protected through a separate copyright application. This means that there will be more than just an application respecting what the user sees; the protection (if the application is granted) can extend to the underlying digital building blocks of the website itself, as well.

3. The Legal Aspects of Utilizing a Live Chat Function for an E-Commerce Website
Many e-commerce websites have phased out the use of 800 numbers to provide customer service in favor of live chat through instant message communication. While the live chat function may appear to simply be an efficient and effective way of forcing the public to “get to the point” when asking a (hopefully) relevant question, there is another aspect of it that has critical legal significance. It provides a written record of the conversation between the website representative and the person making the inquiry. That can be critical if there is ever a legal claim at some later point that involves whether and to what extent the website interacted with that person.

4. Click-through Agreements Are Enforceable
It is important not to confuse the difference between a click-through agreement with website terms and conditions and privacy policy that do not have such a feature. This type of agreement is also known as clickwrap” and usually requires clicking a button that states “I agree.”

Often, the user will click the button without reading the agreement—something that should be discouraged, but happens nonetheless. The issue of enforceability of a contract that was never read is a real one, but many courts that have taken up the issue have generally concluded that it is up to the consumer to read the contract to which it is “agreeing.”

We Welcome Inquiries From E-Commerce Businesses

These are only a handful of the legal issues that arise for businesses that rely on e-commerce for their revenue. The Nissenbaum Law Group welcomes inquiries involving the potential representation of clients that utilize e-commerce websites and other digital business platforms.