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Discussion Starter · #1 ·
Palace in the Sky Productions LLC owns the distribution rights to the LadyStar series. I would like the company to compile a mailing list of the people who buy our books. I think we should add a page to each book that says "if you like our stories, please visit ladystar.net and sign up for our mailing list." The LadyStar books are either middle-grade or young adult depending on who you ask.

I just got off the phone with a New York attorney who specializes in Internet law.

He can't tell me definitively how to comply with the Child Online Privacy Protection Act. The only way to guarantee avoiding an FTC lawsuit requires us to settle for not having a mailing list, which hurts our business. (I also can't write about our books online, even indirectly, without a disclaimer, but that is another issue)

(A second California attorney told me even if I had a written opinion from an attorney that it would have no weight with the FTC or a court of law)

Mystery writers can have mailing lists. Romance writers can. Crime authors can. Historical fiction can. Textbook authors can.

But since our books might appeal to readers under 13, we can't, unless we are prepared for future litigation or we ask for a credit card number.

Oh, I can make it less likely we'll get sued. But I can't be assured of my compliance if I ask the general public for an e-mail address. If the person supplying the address is under the age of 13, we must obtain verifiable parental consent: credit card, signed permission letter, etc.

Aside from the frankly offensive implications of this law under the First Amendment to the Constitution, I note with some cynicism that there are probably millions of Facebook and Twitter accounts owned by people under 13. This is a black-letter violation of the law (and Facebook and Twitter both know it), but nobody takes seriously the notion it will be enforced against Facebook. This is because Facebook isn't "directed at children" apparently.

Then there is the fact that well, who is going to take the risk of building a site "directed at children" if they can't be advised how to comply with the law, even by an attorney? What is the point of a web site if it isn't to communicate with your customers? Most new businesses will opt for certainty and simply abandon their plans for a site that might be appealing to children. This leaves the Internet emptied of sites that appeal to children. (Take a look around. See any?) It also puts a nice big wall (emblazoned with an FTC logo no doubt) between authors or publishers and their audiences if they make the mistake of writing books that children might enjoy.

Unless you're Disney, or Nickelodeon, or Cartoon Network, or Mattel. Then, like Facebook, you can ignore the law. Proof:

http://www.everythinggirl.com/registration/join.aspx

Mattel-operated site. Collects an e-mail address and acknowledges that fact by saying "if you don't have your own, use your parents'" Not a word about the fact that if that e-mail address is entered by someone under 13, according to our attorney, permission is required. Oh, there's a privacy link in the footer, if you can read it. It parrots the rules, but that's all.

In fact, here's the relevant language from their privacy policy:

A SPECIAL NOTE TO KIDS:

If you are under 13, you should get your parent's or legal guardian's permission before giving out your contact information, like e-mail address or phone number, or any other personal information, to Mattel or to anyone else.
And that's wrong. If you are under 13 you MUST get your parent's permission. Of course, no kid is going to read page five of a privacy policy.

http://disneyparks.disney.go.com/

Linked right off the official Disney Princess site. Once again, "enter e-mail address and sign up." Not a word about being under 13. Not a word about permission. Is this site directed at children? Well, it's about Disneyland and there's a toddler in the middle of the screen when it loads. You tell me.

Apparently Mattel and Disney have special dispensations of some kind. So perhaps this law would be more aptly titled the "Thou shalt not compete with Disney and Mattel Act."

There used to be a fairly comprehensive LadyStar site at ladystar.net Not any more. We can't communicate with our readers, so we can't build a community. We are BARRED BY LAW from building a community EVEN IF we don't allow anyone under 13. No community = no message boards or comments = no e-mail = no sales = no site.

That's right, even if we post in big red letters "NOBODY UNDER 13 ALLOWED" or even if it is only directed at parents it STILL isn't enough to comply fully, according to our attorney. In fact, my attorney actually suggested I alter our story and make our characters older so as to not be quite as appealing to younger readers to reduce the chance we will be sued.

Let me repeat that for the tl;dr crowd: A MEMBER OF THE NEW YORK BAR SUGGESTED I ALTER A PUBLISHED BOOK MANUSCRIPT TO MAKE IT EASIER TO COMPLY WITH FEDERAL LAW.

Oh, we could probably go right ahead and make our list, and we could probably go a few years with no problem, sell our books and have a grand time. Until someday when we're all re-enacting the last scene of It's a Wonderful Life, singing Auld Lang Syne and passing around egg nog while cash pours out of baskets and we laugh and celebrate. And then a 4'10" FTC bureaucrat waddles in and serves us with an $11 million lawsuit because three years ago a 10-year-old signed up for our book list because she wants to read more stories about Jessica's pet Sha-Ri and his magical flowers.

This has been clamped around our feet since the first word of LadyStar was ever published. We can never build a community around our books or any other product. We can never communicate with any fan of any age unless we use a fax machine or postcards.

The rest of the entertainment business is marching into the future, and here we sit because we made the mistake of writing a book and building a web site that children might enjoy.

And I think that's deplorable. Furthermore, it's un-American.

P.S. Just a quick memorandum to the fine members of the New York and California Bar and our wise noblemen at the Federal Trade Commission: I will never, EVER change my story or characters for you.
 

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I am confused.

You can't have a site/mailing list for your book because it might appeal to minors under the age of 13 (who legally can't have an email address by the way due to COPA, which is why they ask you for your birthday which idiots like my husband's ex-wife tell my 12 year old stepson to just lie to, but that's besides the point), because you might get sued, even though there are dozens of sites that appeal to children as young as 3 (hey there, abcmouse.com) already in existence?

Is this your publisher decided this? Or you are deciding this because of fear of the FTC?

Edited: I typed ebook instead of birthday. My daughter spilled an entire bottle of laundry soap on the floor today and then with the Amazon Affiliate news, on top of a site redesign I was already doing, my mind is doing 4 things at once. Sorry. Been a long day.
 

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Discussion Starter · #3 ·
I'm deciding this because I can't get anyone (including two attorneys) to tell me how to go about asking for e-mail addresses without risking a lawsuit.

I want there to be a zero chance of getting sued.  Not 1%, not 0.1%.  Zero.

The only way to do that is to not have a mailing list.
 

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Respectfully, you can get sued for sneezing on the wrong person.

It's your decision. But your post is a little alarmist. And lawyers aren't experts in all parts of the law, just their part, and they'll never tell you ever that you can't be sued, because well, again, sneeze on the wrong person....
 
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Did the kid come up with the money to buy your book (with a credit card on the net)?

Or did Mom or Dad do the purchase?

Why not aim the email list message to Mom and Pop? "More great stuff for your brilliant kid" etc.
 

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Discussion Starter · #6 ·
And lawyers aren't experts in all parts of the law
The New York attorney I spoke to specializes in Internet law. The California attorney was more of a litigation specialist.

Allow me to clarify. I realize there's no way to immunize ourselves from a lawsuit. But I want to be 100% sure we win.

The problem is even if we want to comply, we can't unless we do something mind-bogglingly stupid like ask for a credit card number to sign up for our mailing list.

Why not aim the email list message to Mom and Pop?
According to the attorney, it's still not enough. The FTC could interpret that as "we say we want your Mom and Dad to sign up, but all you really have to do is..."

I realize it sounds silly, but this came from a practicing attorney who specializes in this area of the law.

who legally can't have an email address by the way due to COPA
If it is true that kids under 13 can't legally have an e-mail address (and they can't without either violating COPPA or getting parental consent) then it is impossible to collect an e-mail address from someone under 13.

Right?
 

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heavycat said:
If it is true that kids under 13 can't legally have an e-mail address (and they can't without either violating COPPA or getting parental consent) then it is impossible to collect an e-mail address from someone under 13.

Right?
Hardly. As you point out, kids can lie. All you can do is take reasonable precautions.

heavycat said:
I want there to be a zero chance of getting sued. Not 1%, not 0.1%. Zero.
heavycat said:
I realize there's no way to immunize ourselves from a lawsuit. But I want to be 100% sure we win.
No matter what you do, you can't achieve either of the goals you've stated here; you will never make it a 0% chance that someone will sue you (though you've pulled that one back) nor will you get a guarantee that you can't lose. "Stuff" happens, even in the legal system. Maybe especially in the legal system.

Betsy
 

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Risking a lawsuit is one thing. But has there EVER been a case where someone actually created a legitimate mailing list and then got sued for it?

I tend to agree, with previous commenters. Direct it toward parents, use whatever language you think is strict enough, and call it good.
 

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I want there to be a zero chance of getting sued. Not 1%, not 0.1%. Zero.

The only way to do that is to not have a mailing list.


There ya go. What's your point exactly?
 

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Discussion Starter · #10 ·
I tend to agree, with previous commenters. Direct it toward parents, use whatever language you think is strict enough, and call it good.
And if at any time we collect one address from someone under 13, we get to sit on a ticking bomb forever.

The legal fees even to file a motion to dismiss in such a case would run well into the six figures.
 

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Heavycat,

I can get sued with my all adult (I think, I don't know if a kid lied and signed up for it) email list if I spam people, or don't take them off my list when they ask, etc. There's federal law protecting consumers from their email address being shared, sold, or used without their consent, and by golly, if I can find that Prince in Nigeria who needs the money transfer to the UK bank, I'm going to sue him because he MUST be gabillionaire by now!

There have been parents that try to sue children's book publishers all the time for the content IN the book!

You're in the public, you've published a whole series. I think if you take a step back and really think you'll realize there is a ton of daily behavior you do that might get you sued.

Are your books not appropriate for kids under 13? Is that what you're worried about?
 

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Your mailing list form needs to be age-gated. It's simply HTML.

Front page of list "fill in your birthdate" second page is either "you are under 13" or "fill in your email" . . .

Simple. If you've done this and accidentally get a 13-year-old you say "they lied, I can't stop that" . . .

You can get sued for anything. It's just extremely unlikely, particularly if you take this one BASIC precaution.
 

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Mathew Reuther said:
Your mailing list form needs to be age-gated. It's simply HTML.

Front page of list "fill in your birthdate" second page is either "you are under 13" or "fill in your email" . . .

Simple. If you've done this and accidentally get a 13-year-old you say "they lied, I can't stop that" . . .

You can get sued for anything. It's just extremely unlikely, particularly if you take this one BASIC precaution.
The kids all know now to lie about their birthdate. :) Maybe if it was "Name the top 5 artists you listen to on your iPod right now...." If Selena Gomez, the Shake it Up people or Justin Bieber (had to actually look up it is i before e in his name), then you get the "I'm sorry, you are clearly NOT old enough to be using the Internet without an adult's supervision."
 

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Discussion Starter · #14 ·
I think if you take a step back and really think you'll realize there is a ton of daily behavior you do that might get you sued.
If we get sued by an individual, that's the legal system. We walk into court and defend.

We get sued by the United States Federal Trade Commission? Just answering the suit would bankrupt us 100 times over. This isn't unprecedented. Startup app developers have been fined five and six figures for breaking these regulations.

It would be one thing if there were practical reasonable guidance on how to comply with the law (even though I personally think this law is a flagrant violation of freedom of the press). But if the best we can do after consulting a practicing attorney is "well, I dunnooooooooo....."

Your mailing list form needs to be age-gated. It's simply HTML
It's helpful, but not conclusive apparently. My attorney said "you also need a persistent cookie that locks them out of the site if they put the wrong birthdate." And even THAT isn't conclusive. They just "take it into consideration" while they decide whether to fine you.

The only way to be in black-letter ABSOLUTE compliance would be to have a PDF form on the site which a parent would have to download, print, fill out, sign, attach a copy of their driver's license to and fax back to us with the e-mail address included. Or we could charge a fee payable only by credit card to sign up.

Care to guess how long it would take to build a list of ten people willing to pay to join a mailing list? Or willing to fax an application to join a mailing list?

I suppose we could make a site where people join with a credit card and get a free book. That's really the only way to do it.

It's exhausting and colossally unfair.

Are your books not appropriate for kids under 13? Is that what you're worried about?
Nah. It's about girls fighting monsters with magical weapons. All of the characters (except Cici, the youngest) have teenage romance subplots, but it will be limited to hand-holding and the occasional kiss. Nothing even approaching a PG-13 rating. LadyStar is harmless.
 

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There is no 100% protection against a lawsuit.  There is no way to be 100% sure of winning a case in Court.  Even if you win in Court you will lose.  You'll spend a quarter million winning a case and you will recoup none of it.

The Court system is an appalling horror, but there's nothing you can do about it.  Think about it like a lion in the jungle...you need to be careful, but you still need to go to the watering hole.
 

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Discussion Starter · #16 ·
Possible solution. Comments welcome.

In each book, we advertise the LadyStar Readers Club. One time fee of $5.00 payable only by credit card.
As a member you get the e-mail newsletter and a free LadyStar book. Rule: Must be 18 or older to join. If you are under 18, only your parent can join.

Satisfies the verifiable consent issue. Can't easily be circumvented. In compliance.

And guaranteed to run afoul of some current or future detail of Amazon's KDP TOS.

EDIT FIVE MINUTES LATER: Called it:

You may not include in any Digital Book any advertisements or other content that is primarily intended to advertise or promote products or services.
Solution destroyed. This also means you can't advertise your other books in your Kindle books. Surprise!

And if you'd like to see just how easy it is for stuff like this to cause problems:

http://mashable.com/2012/12/18/spongebob-app-privacy-issues/
 

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If you are worried about underaged kids signing up to your mailing list, you can simply make new subscribers fill out their birthdate (yes, I know they can lie about it), and UNDERNEATH that field, make sure you put a VERY CONSPICUOUS disclaimer saying something along the lines of "By subscribing to this mailing list, you verify that you are 13 years or older." and you pretty much have your bases covered in that aspect.

What parents let their kids do after that is on them. Not you, since your disclaimer is as clear as day.

There are always loopholes in the system, and people are always finding ways to cheat it, so just putting the disclaimer there will not always guarantee that you won't get sued. No need to live in fear about that. You can only do so much.
 

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The credit card signup wouldn't work, either. All it would take is one twelve year old "borrowing" Mom's bank card for ten minutes, and you're "sitting on a ticking time bomb forever". (What, you think most people will spot a random $5 charge on their debit/checking account? Unlikely.)

Prepaid credit cards (the kind you can buy in any supermarket) work just fine for minors, too. Credit cards are no longer an accurate way to restrict online products by age.

You CANNOT stop someone from lying to you about their age on the internet.

In general, I don't believe (IANAL) that you can reasonably be held accountable for someone lying to you about their age, when it comes to compliance with COPPA. COPPA compliance for online forums, social networks, etc., for instance, is accomplished by making the user check a little box affirming they are 13 or older.
 
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