Uncategorized – Page 14 – Media Tech Law

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.

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.

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.

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.”

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?

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.

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.”

Who owns advertising data?

Posted August 23, 2009 by Andrew Mirsky 0

First, what data? This comes up in various contexts. First example: an agency contracts with an ad campaign client for marketing, issue advocacy, corporate branding, what have you. It used to be that creative was a “work for hire” (or assumed to be) owned by the advertising client. With some sort of understanding that the client wouldn’t end-run the agency.

In other words, expectations were governed by historical industry practice. Copyright and contract law didn’t play much a part.

But what about campaign performance? What about reports and research and metrics and all the “data” compiled by the agency to make its case? Forrester and Gartner Group and Corporate Executive Board and their ilk have been selling research reports for years on these sorts of things, but agencies typically didn’t bother with industry best practices-type studies or reports. Work was done for clients, and work product was owned by the clients (or again, was assumed to be).

Fair Use and the Collapse of Web Advertising

Posted August 17, 2009 by Andrew Mirsky 0

If the thinking behind a liberal approach to web content sharing is driving traffic back to your original content source, what happens when the benefits of doing exactly that – i.e. bumping up traffic for potential advertisers – fails to generate the hoped-for commercial return?

Like all advertising, web advertising has always been somewhat more art than science (yet), for better or worse, with accompanying difficulties in translating eyeballs into advertising revenue metrics. Comes now the collapse of the web advertising market. What then becomes of the willingness to go along with liberal content “scraping”, excerpting and other copying under “fair use” arguments?

Brian Stelter probed this very question in the NY Times recently. Stelter interviews, among others, Henry Blodget of Alley Insider and Arianna Huffington of The Huffington Post, whose publications are among the most aggressive and overt in the practice of integrating others’ content into their writings. Ms. Huffington states, honestly, that “we excerpt to add value”, which is probably a fair statement, except that Stelter also notes that these sites “highlight [] what they deem to be the most meaningful parts of newspaper articles and TV segments.”

Can you trademark a domain name?

Posted August 5, 2009 by Andrew Mirsky 0

Can you trademark a domain name? Amazon.com is a registered US trademark of the company by the same name, including not just the word “Amazon”; but also the dot com. There are numerous examples of this, although they have in common the brand value of the name inclusive of the dot com appendage.

How many businesses can say this, really? More commonly, a web domain reflects the name of the business or the brand or the celebrity (or whatever), and the “.com” is simply a location finder on the internet. So, for example, “ExxonMobil.com” is not registered as a trademark. Nor is Apple.com, even though the brands without the .com are.

The issue is a question of what name you’re trying to protect. Cybersquatting laws (and some famous cases) prevent certain well-wishers from staking claim to web domains of trademarked terms such as “McDonalds.com” and “Walmart.com”.