Legal Question in Technology Law in New York

Re: Can-Spam Act 2003

CAN SPAM applies to everybody. Period. It carves out certain exceptions to how it applies but it essentially always applies to unsolicited e-mail. Period.

As to whether you are operating "legitimately" or not, so long as you don't charge money for ANYTHING, and are just doing it to do it (or to test the water to see if there is some possibility of charging money for something) then you don't need to register or incorporate or whatever -- you're just a citizen standing on an electronic soapbox and saying your piece.

You may find yourself facing some liability if you do it that way however. For this reason most people opt to form some kind of limited liability structure -- a corporation, LLC or limited liability partnership.

If you do decide to charge money (from advertisers to support your non-profit, or as membership fees to access the content, or whatever) then the law in NYS requires you to register any sole proprietorship you may run if you don't use your own name to do it (a "dba certificate"). You may still want to avail yourself of the liabiility limiting affect of a corporate or LLC or LLP form, even if you are doing it yourself. If you are doing this with another person or other persons and don't form either a corporation, and LLC or a limited liability partnership you will, by operation of law, have formed a partnership. If you wish to do this project on a not-for-profit basis, you must be a not-for-profit corporation formed under specialized law; you'll also need to seek 501(c)(3) status from the IRS.

Re: Can-Spam Act 2003

The Can-Spam Act is broadly tailored to apply to individuals or business entities. Hence, it does not matter whether you have registered (i.e. filed for LLC/Corp/DBA, etc.) status. Also, the fact you call yourself a non-profit business, most likely does not change the Act's application. The Act appears to apply equally to non-profits (self proclaimed and duly organized) as well.

To the best of your ability, comply with the Act, but keep in mind that without limited liability protection, you will be directly liable for any fallout. So if you're serious, file for a business entity before the mailing. Good luck.

Re: Can-Spam Act 2003

Your questions cannot be answered without examining the materials on your website and your bulk email messages but I will provide a few general comments on Can-Spam Act.

The new law is not very clear on a number of points, including to whom it is designed to apply. However, it is fairly clear that your form of business organization or even not-for-profit status of your organization is not dispositive because the legislation seems to be focusing on the definition of "commercial email." The key term used in the Act is "commercial electronic mail message", and it is defined as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." As you can see, both the content of your site and of your bulk messages would need to be analyzed to give you any guidance.

If you need a "legal audit" to be performed on your site, feel free to contact me.

Please note that this reply is in the nature of general information, is not legal advice and is not to be relied upon as such.