MediaTech Law

By MIRSKY & COMPANY, PLLC

Andy Speaking at Politics Online 2010!

Posted April 17, 2010 by Andrew Mirsky 0

I will be moderating 2 separate panels on Monday and Tuesday at the 2010 Politics Online conference spectacular here in Washington.

The first will be Monday April 19th at 2pm, and called “Is this Barack Obama’s Real Facebook Page? Domains, Twitter Handles, Online Presence – real or fake? Intellectual Property, Cyber Identity, and More!”.  I will be joined on the panel by Jason Torchinsky of Holtzman-Vogel, Matt Sanderson of Caplin & Drysdale and Neal Seth of Baker Hostetler.

The second will be Tuesday April 20th at 10:30am, and called “Laws Affecting Digital Communications – Copyright, Privacy, Elections/FEC, Advertising, Libel, Contract Law, etc.  Rules, Regs, Fines and Community “Standards” Applicable to Communicating in Digital Media.”  On this panel, I will be joined by Jason Torchinsky of Holtzman-Vogel and John Stewart of Crowell & Moring.

Details at polc2010.com/.

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E-Books and the Cost of Publishing – What Value? Why the Big Price?

Posted March 18, 2010 by Andrew Mirsky 0

NPR’s Lynn Neary reported last week on the value of e-books (“No Ink, No Paper: What’s The Value Of An E-Book?”), illuminating the nuance about pricing of electronic books. Because books – electronic or otherwise – are still almost entirely issued by old-line publishing houses under the same decades-old operational model, a publisher’s cost of operations still has to be recouped. And for publishers, the sole source of that recoupment remains the consumer purchaser of a book, regardless of the medium of a book’s distribution or purchase or presentation. From this perspective, a more alarming (from the publishing industry’s perspective) competitive threat on the market today is the low-cost pricing of hardcover books (including current bestsellers) at places like Target, Costco and Walmart.

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Do Teachers Own the Copyright to Course Materials?

Posted February 18, 2010 by Andrew Mirsky 0

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 concede the legal ambiguity of the copyright law’s “work for hire” doctrine when applied to the academic setting.  What is 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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Copyright: Work For Hire Doctrine

Posted January 27, 2010 by Andrew Mirsky 0

“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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A Sherlock Holmes Copyright Mystery?

Posted January 20, 2010 by Andrew Mirsky 0

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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Internet Sales Tax – States Take on Amazon for Online Sales

Posted January 11, 2010 by Andrew Mirsky 0

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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LLCs vs S corps: Income and Tax Differences

Posted January 9, 2010 by Andrew Mirsky 0

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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Earnouts in Sales of Businesses: Risks and Strategies.

Posted January 4, 2010 by Andrew Mirsky 0

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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Cookies, Congress and Privacy: What’s the Problem?

Posted December 6, 2009 by Andrew Mirsky 0

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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Social Media and 501(c)(3) – Putting Nonprofit Status at Risk?

Posted October 25, 2009 by Andrew Mirsky 0

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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Trademarks and Twitter – It’s a Gas Gas Gas!

Posted September 25, 2009 by Andrew Mirsky 0

Oneok, a natural gas distributor based in Oklahoma, sued Twitter last week for trademark infringement.  Then dropped the case one day later.

Oneok claimed that an unidentified third party had operated an account under Oneok’s name and logo (both registered trademarks, evidently) and, more particularly, issued tweets which “had the appearance of being official statements” of the company.  And therefore, gave the impression that these were authorized statements made by authorized users of Oneok’s trademarks.  See Oneok’s complaint here.

The last part would have been particularly critical to Oneok’s claims of infringement because it would have argued against a defense of parody or commentary or other protected “fair use” of the trademarks.

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Privacy: Secrecy, “Locational Privacy”, and Brandeis’ “Right to be Let Alone”

Posted September 8, 2009 by Andrew Mirsky 0

What does it mean to give up privacy? Adam Cohen wrote last week in the NY Times about the demise of “locational privacy”: your right – presumably it’s a “right” – to keep a lid on who knows where you are. Cohen’s onto something bigger than just a rant against modern technology. The problem with modern technology is that we tend to like modern technology!

I watched the great television show “Madmen” last week, about life in a Madison Avenue advertising shop in the early 1960s. No cell phones, no computers, no electronic building entry devices assigned to individual users, no EZ Passes, and probably very few credit cards. Ad man Don Draper visits his various mistresses without concern that his wife might try to reach him on his cell phone. Or for that matter, as Cohen writes, any worry that he might simply be lugging around his own personal tracking device: “If your phone is on, even if you are not on a call, you may be able to be found (and perhaps picked up) at any hour of the day or night.”

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