Shoemoney - Skills To Pay The Bills

Living Vicariously – and Dangerously – Under the TCPA

Posted: 10 Mar 2014 07:47 AM PDT

The legal landscape of the Telephone Consumer Protection Act (TCPA), both before and after the Federal Communications Commission (FCC) required telemarketers last October to begin obtaining the "prior express written consent" of consumers to solicit them, is so densely packed that it is impossible, in limited space, to do more than scratch the surface of the terrain. Courts coast to coast are being asked to wrestle with, and decide, a host of issues of importance to marketers who are, or any day could be, the target of a TCPA class action.

Plaintiff and defense lawyers are arguing ferociously, for example, over: what devices fit the TCPA definition of "auto-dialer," thus subjecting their users to the Act's prior written consent and other requirements; whether the issue of "consent" raises individualized or common questions for purposes of class certification; and whether "confirmatory texts" are covered by the TCPA. Another hot issue, and possible defense for merchants who utilize third-party telemarketers, is vicarious liability. Even if the telemarketer fails to obtain the requisite written consent or is in other violation of the TCPA, can its merchant-client be liable for its misconduct, and for statutory damages that could run into the millions of dollars?

The FCC has shed some light on the answer. In a declaratory ruling last May on a petition from DISH Network, it stated that sellers who use third-party telemarketers are not automatically ("strictly") liable for their violations of the TCPA, but still may be vicariously liable under "federal common law principles of agency." The FCC opined that under these principles, vicarious liability can attach not only as the result of a formal agency relationship (in which the principal is clearly in charge of and controls the agent), but also an "apparent" agency relationship, or "ratification."

The FCC offered examples of the kinds of circumstances that might demonstrate the "apparent authority" of a telemarketer to act on behalf of another entity. These include whether: (1) the seller allows the third party access to information that normally would be within its exclusive control, such as detailed product or pricing or customer information; (2) the third party has the ability to enter consumer information into the seller's systems, as well as the authority to use the seller's trade name or trademark; (3) the seller approved, wrote or reviewed the telemarketing scripts; and (4) the seller knew or reasonably should have known that the telemarketer was violating the TCPA on the seller's behalf, and failed to take effective steps stop it.

While an important statement and source of guidance, the FCC DISH Network opinion is not binding on the courts, which in the end must look at each case and apply pertinent legal precedent in determining whether a seller is liable for its telemarketer's TCPA violations. Because the inquiry is so case-specific, it should not be surprising that decisions have split on the issue. Three federal court cases out of California are illustrative.

In "In re Jiffy Lube International Inc." (2012), in the Southern District, the court denied a motion to dismiss by the seller, holding that the TCPA recognizes liability for any party responsible for the text messages, regardless of which entity physically sends them. Were it otherwise, the seller could effectively make an "end run" around the TCPA's prohibitions.

In "Thomas v. Taco Bell Corp." (2013), in the Central District, the seller won summary judgment because it did not send the text messages and was not involved in developing or directing the telemarketer's campaign. It did not control the "manner and means" of the campaign and played no role in the decision to distribute the message by way of text.

In another case in the Southern District, "Friedman v. Massage Envy Franchising LLC" (2013), the court, in granting dismissal for the seller, strictly construed vicarious liability, stating that it requires sufficient pleading of the elements of formal agency, including the right of the principal to control its agent. The TCPA, the court said, applies only to the party that "makes" the call, and therefore can apply only to the seller or one who is, in fact and law, its agent. It also suggested that the plaintiff could lack standing to pursue a TCPA claim since it had not shown any "causal relationship" between the sending of the text messages and the actions of the seller, such that no injury is "fairly traceable" to the seller.

Pro-defendant decisions — like those in Taco Bell and Massage Envy Franchising — which rest on a seller's lack of control and supervision, could create tension with the "best practice" of seller monitoring of the telemarketer to reduce TCPA risk. Even absent an actual agency relationship, the greater the level of watching, the easier it can be to show control and direction by the seller. Still, the best practice of regular monitoring, and corrective action against discovered infractions, is the wisest practice. Short of using a telemarketer who is known to be so compliance-conscious that monitoring is unnecessary, it is the most effective way for a merchant to avoid a TCPA class action in the first place.

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Could YOU Be Accidentally Plagiarising Other Bloggers? - DailyBlogTips

Could YOU Be Accidentally Plagiarising Other Bloggers?

Posted: 11 Mar 2014 06:00 AM PDT

One morning, I read a guest post on a major blog on a topic that I specialise in.

All the sections in the post sounded like points I’d make. At first I brushed that off. But then something about the wording made me pause.

This post seemed a little too familiar.

A quick Google later, and I'd found a post I wrote two years before: a guest post for a different blog. My structure and all my ideas had been used, intact. Unusual words and phrases – like "mediocre" – were used in both posts. Every one of my sentences had been reworded (in many cases badly) but it was still stolen.

Plagiarism doesn't just mean passing off someone's words as your own. It includes stealing their ideas.

Of course, you'd never take someone else's blog post and publish it as your own.

(And if your posts get stolen, here's how to deal with it.)

There often aren't many brand new ideas in a particular niche – just old ones expressed in fresh ways. But where do you draw the line between "research" and "theft"? What counts as plagiarism and how can you avoid it?

"Spinning" a Post is Still Plagiarism

The rather ironic thing about this guest post is that the author was promoting a site that sells anti-plagiarism software! I suppose my post passed their tests – and I don't think anyone could have found the original by a Google search except for me, the original author.

But if you take someone's blog post and rewrite it all in your own words, that's still plagiarism. After all, you're stealing the hard work that they put into research and planning it, and structuring it carefully.

This doesn't mean you can't use other people's posts for research. But you should never rely on just one source. It makes it too easy to plagiarise (even without really meaning to). Plus, using multiple sources means your post is more likely to contain solid, agreed-on ideas.

Quoting from Other Authors

If you want to use someone's exact words in your own post, you can … but you need to put them in quotation marks or in <blockquotes> formatting.

You should always give the name of the person who wrote (or spoke) those words, and if they're from a blog post, it's good practice to link to it. If you're quoting from a blog post or web page, it’s good practice to link to it.

Tip: Where bloggers (and other writers) find themselves accidentally plagiarising, it’s usually because they’ve copied chunks of posts while researching into their notes, without necessarily including the author’s name. It’s all too easy to come back to these months later and think that they’re your own words.

Using a Post as the Basis for Your Own

What if you read a post that’s so good, you want to present the material in it to your blog readers? You don’t just want to use a short quote from it – you want to give them the whole post, or at least a substantial amount of it.

The best way to do that is to write a fresh post of your own, introducing the post, then quoting from and linking to it. Daniel does this frequently here on DailyBlogTips – here are a couple of examples:

Careful with Guest Blogging for SEO Purposes Only

100 Great Business Ideas for 2014

Ultimately, make sure that everything you write is:

In your own words (apart from direct quotes, where you acknowledge the source).
Based on multiple sources, and/or your own ideas, rather than on one blog post or article.

If you’ve got a question about plagiarism, just pop a comment below.

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One Crucial Thing You MUST Avoid When Choosing a Free WordPress Theme

Posted: 10 Mar 2014 07:01 AM PDT

Let's say you're looking for a fresh new look for your blog … but your budget is non-existent.

What do you do?

Perhaps you head to Google and type in:

"free wordpress themes"

There are a huge number of sites offering these – you might be a bit dazzled by the range. But you find a theme you like, download and install it, and you're happy.

Except there's a catch.

That theme includes malicious code, or an encrypted link back to the creator's site. Using it for your blog could open you up to serious problems – like malware infecting your site, or Google penalising you.

(Even if the theme creator had good intentions, it may have been tampered with by a hacker before being released onto the web.)

Get a Safe, Free WordPress Theme

Thankfully, there's a really simple solution. Always choose themes through the WordPress.org site. They have a free theme directory here.

You can also find these themes through your blog's dashboard, under Appearance à Themes à Add New.

If you find a free theme somewhere else that you like, check whether it's available on the WordPress.org site. If it isn't, avoid it.

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