By Andrew Mirsky, on February 21st, 2010
Mirsky & Kong PLLC is again offering open door “office hours” (in-person and virtually) for legal questions this Wednesday 3/2, 11am to 2pm. Please feel free to visit, call, email, or tweet your legal questions on new media, contracts, intellectual property, employment and HR.
Come pick our brains. If we can answer your questions, we will. If we cannot, we will say so and see how we can figure out how to help you some other way.
DETAILS: Open Office hours. No charge, no appointment necessary, with the understanding that any learning may be shared publicly. However, we will not disclose company or individual names, or confidential information.
Date/Time: THIS Wednesday 3/2, 11am to 2pm
Walk-in: 1133 19th Street, NW, 9th Floor, Washington, DC
Phone: (202) 339-0303
Email: andy@mandklegal.com or steve@mandklegal.com
Twitter: @mirskyandkong
By Andrew Mirsky, on February 18th, 2010
Can college and university teachers take their course materials, presentations, notes, slides, PowerPoints, syllabi and other teaching resources with them when they leave their current positions? Can they sell or license these materials to online universities or market them through Amazon?
For a group that tends to dispute everything even a position that would presumably only side in their own interest, academics too must conced the legal ambiguity of the copyright law’s “work for hire” doctrine when applied to the academic setting. What probably not in dispute is, as one commentator describes it, that “Traditionally, it was presumed that educators owned copyrights to academic work they have authored or created.”
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By Andrew Mirsky, on January 27th, 2010
“Work Made For Hire”, 17 USC §101: An original, copyright-able work (meaning: a work that falls within the subject matter of copyright protection) qualifies as a “work made for hire” if the work either (1) is created by an employee within the scope of his or her employment or (2) qualifies as “work made for hire” under the established evaluative criteria described below.
Significance of “Work Made for Hire”: The significance of a work being deemed “work made for hire” is that the beneficiary of that designation owns full copyright in the work outright and exclusively. Thus, as between an employee an employer, the employer owns the copyright to any works created by that employee within the scope of his or her employment. Likewise for a party contracting for the creation of a work from a non-employee.
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By Stephen Kong, on January 26th, 2010
Having just gotten off the phone with another Federal employee alleging discrimination in the workplace, it’s remarkable to me how misguided and misinformed Federal employees can be about the basic legal requirements of bringing such an action, the potential risks involved in doing so, and the actual merits of their case. I’m not going to spend time giving a primer on Federal discrimination law (e.g., age, sex, disability, race, national origin, religion, etc.) but as a former senior executive for a Federal agency tasked with defending managers these against these complaints, I think I can impart some useful anecdotal tips for those with legitimate cases, as well as those who think a complaint is quicker way to get a bonus than actually doing your job.
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By Andrew Mirsky, on January 20th, 2010
Sherlock Holmes is still under copyright, even though his author Sir Arthur Conan Doyle died almost 80 years ago. Actually, some of Conan Doyle’s stories are or appear to be under copyright protection in the United States (not in the UK and not elsewhere), by virtue of an oddity in US copyright laws. Ordinarily, US copyright protection for works published prior to no later than 1930 (the year of Conan Doyle’s death would have expired well before today.
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By Andrew Mirsky, on January 11th, 2010
Sales tax on online retail sales has been a confusing area of the law since the earliest forays into internet sales. Recent attempts by the states to aggressively interpret the meaning of a business “nexus” with the state (which is the basis of a state’s claim to sales tax jurisdiction) have been fueled both by the maturity of the internet retail market and by the state budgetary crises of this and recent years.
In 2008, New York State enacted legislation which may still be the broadest attempt yet to collect sales taxes from out-of-state vendors, basing its legal argument on the networking, linking and affiliate relationships common to many online vendors and particularly, to Amazon.com.
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By Andrew Mirsky, on January 9th, 2010
LLCs vs S corps: Income and Tax Differences: These income and tax questions are frequently asked when individuals and partners contemplate forming a new company. Basically, am I better off with an S-corp or an LLC? There are several non-financial benefits (which I lean toward) in favor of the LLC over the S-corp, particularly the LLCs structural flexibility. Many articles and blogs have been written about that subject and I will link to some of the good ones later. For now, I wanted to address some of the more ambiguous questions about the two legal entities impacting the entity decision, namely whether the choice makes a basic tax difference for the principal owners.
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By Andrew Mirsky, on January 4th, 2010
You sell your business for cash plus an amount to be determined based on earnings or other performance measurements of the business over the next 1, 2 or several years after the sale. This is an “earnout” and can be a very lucrative upside to a seller. It can also be attractive to a purchaser unable (or unwilling) to fully calculate the value of the business being purchased at the time of sale.
It also has obvious risks, particularly to a seller. Commonly, the earnout involves a seller who will continue to participate in the business after the sale under some sort of employment or consulting arrangement with the new owners. This theoretically gives a seller an ability to have some control over the post-closing success of the business, while giving the purchaser a way to incentivize (and control) the seller’s employment or consulting performance.
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By Andrew Mirsky, on December 6th, 2009
Publishers are worried about cookies, specifically talk of regulatory action on the privacy front. What’s the story here?
A Privacy Policy might typically say something like this:
“A ‘cookie’ is a small text file on your computer’s hard drive that our Web site uses to collect information about how you use our site. The cookie transmits this information back to our Web site each time you visit a page on our site, thus allowing us to identify our most popular pages, features and data.”
To someone not working for an ad agency or at a publisher or for, say, Google, reading these terms, what they might read could be summarized like this: “Software … embedded in my computer … I have no choice … it stays there forever and ever … it will watch my every move and report back to its masters and possibly the government … my wife might find out.”
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By Andrew Mirsky, on October 25th, 2009
A question came up about the new media activities of 501c3 organizations hosting social media platforms for the public (Thank you to Debbie Miller for her assistance with this research):
Question: Can a 501c3 private foundation or public charity put its tax-exempt status at risk by hosting a social media platform? Specifically, could the advocacy and electioneering activities of individuals and groups using that social media platform be treated as the direct action – or facilitation of direct action – by that foundation of activities inconsistent with its tax exempt 501(c)(3) status?
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