Posts Tagged ‘agreement’

NON-LAWYER LEGAL SERVICES : YOU GET WHAT YOU PAY FOR – PART 4 – THE VALUE

Thursday, 16 June, 2011 19:16 Written by Scott Nyman 0 Comments
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Scott Nyman

 

When speaking with potential clients, I often get asked, “So why shouldn’t I just use a service like LegalZoom?” This is a big question, and requires a big answer. So big, in fact, that I am answering this question in a series of articles.

Previously, I have addressed the services, work product, and (lack of) guarantee you may receive by using online legal document generation services, such as LegalZoom. This week, I will cover the value of these services over time. In the next article, since I deal with patents and other intellectual property, I plan to finish the series with an article about using sites such as LegalZoom for patents, trademarks, and copyrights.

And, as a block copy disclaimer from the previous article, I am a lawyer and I do make a living by providing legal services to (paying) clients. However, I only provide my services to advice clients that will benefit from legal representation. If a person is not ready for a patent, or if they are trying to patent the common fork, I will inform them that they do not yet require the services of a patent attorney.

So, why do people turn to online legal document generation services to create the potential subject of future litigation? Because using companies such as LegalZoom is cheaper than hiring an attorney. Right? Well, it depends how you define “cheaper.”

I will be the first to admit that in some situations, LegalZoom will be cheaper than hiring an attorney. However, most of those situations exist when the legal document is never challenged. If you want a legal document just to say you have one, it’s LegalZoom all the way.

In the following example, I will use an area in which I do not practice. Believe me, I’m dying to talk about patents. But, I’ll save that for the next article.

LegalZoom charges between $695 and $895 to generate a prenuptial agreement. The service may generate your prenup from the information you enter into a questionnaire. Lawyers typically charge by the hour, but you get to interact with them personally. Instead of selecting “yes” from a drop down menu, you can speak to your lawyer personally. Your legal representative may then tailor the prenuptial agreement to reflect the terms you may have come to agreement upon with your spouse, whether or not it can be described by a checkbox. The lawyer may also draft your agreement with foresight into how each section of the agreement will hold up when challenged in court.

I can't see how alimony could be any more complicated than this...

If the marriage lasts forever, or if the divorce goes smoothly, you got a great bargain by creating the prenup document through LegalZoom. However, if the agreement is never challenged, you may have saved more by not generating one at all.

But what happens if the marriage ends in an ugly divorce. Although it’s rare, some marriages don’t end well. (I’m from the Midwest, can you tell?) In fact, the love from these marriages may dissolve into a burning desire to crush any happiness of your former spouse, and at any expense. Cue the litigators. The nasty ones will fight tooth and nail for your share of the marital assets, alimony, custody, child support, and anything else you can think of. And if your soon-to-be-ex hates you that much, she’s getting a nasty one.

You can plug virtually any legal document into the above example. Residential lease – a poorly drafted lease may result in having to refund a security deposit in full, despite damages caused by a tenant. Will – ignorance to formalities may result in your estate being distributed intestate. Patent – I would hate to see you lose that $500M patent infringement case because your claims are too narrow to be infringed upon. Pet trust – well, you’re just asking to throw your money away.

Many people think we lawyers are threatened by the new trend of online legal document generation services. That simply isn’t true. It takes a much larger amount of billable hours to fix a poorly created legal document than it possibly could to draft it right the first time.

 

 

 

 

Smurf App has parents smurfing mad!!

Friday, 10 June, 2011 14:58 Written by Rene Dial 0 Comments
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By: Rene Dial

Okay the little blue guys have people, mostly parents, turning red with rage.

  Stories have been popping up for nearly a year in almost every country about Apple charging credit cards, stored in your itunes account, for crazy amounts of cash.  Why is your credit card being charged up the wazzooo? Smurfberries!  Back in February an 8 year old’s parents almost had a smurfing heart attack when their credit card was charged around $1,400.00 for smurfberries.  This story is not a new one but it is new to me.  My brother in law, family friends, and most recently my wife have been abducted by the little blue creatures. 

Once you are abducted, they start to brain wash you.  Soon after you download the app you become a smurf zombie bending to their will.  Being forced to harvest berries, build houses (mushrooms), and bridges.  I realized how far the obsession went when I heard that a family friend spent $25.00 on smurfberries!  I knew the majority of the apps charged for the download but I never would have guessed that the apps would link up to your itunes account and debit your credit card.  I guess I am behind on the times…

I decided to do a little research and downloaded the app for myself.  It took a little while to download but as soon as I clicked on the app icon a warning popped up advising that my credit card could be debited for items used in the game.  Talk about flushing money down the drain. I have never been a video game buff but having to pay for a game as you play is a little crazy.  I could only imagine playing Street Fighter and every time you used a combo your account was debited!  A player would be broke within the first five minutes of play.

I then read through the Itunes terms of use agreement and did not see anywhere that states that you are allowing apps to be synced with your credit card account.  The agreement does mention that you are acknowledging that you are at least 13 years of age.  The rest of the agreement is just boiler plate advising that they are not warrantying anything and that they are not responsible for anything and that you cannot sue them for anything.

http://www.apple.com/internetservices/terms/membership_terms.html “BY USING THE SERVICES, YOU AGREE (TO THE EXTENT PERMITTED BY APPLICABLE LOCAL U.S. AND NON-U.S. LAW) TO WAIVE ANY CLAIMS YOU MAY HAVE AGAINST APPLE, AND TO HOLD APPLE HARMLESS AND INDEMNIFY APPLE WITH RESPECT TO ANY CLAIMS RELATING TO ANY ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE APPLE OR RECOVER ANY DAMAGES WHATSOEVER FROM APPLE AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICES, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF APPLE’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.”

All of the posts I have read suggest that Itunes has reimbursed the parents of the 8 year old that ran up the $1,400.00 credit card bill buying smurfberries.  However, I think I will stick to playing games that I can purchase in the store and are not linked to my credit card account.

Apple to Turn Over Thunderbolt Trademark to Intel

Saturday, 04 June, 2011 14:48 Written by Mark Malek 0 Comments
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By: Mark R. Malek

Seems as though every time I turn around, Apple is in the intellectual property news once again.  This time, I understand that Apple will be turning over ownership of the “Thunderbolt” trademark to Intel.

Apple originally filed for the “Thunderbolt” trademark to be used in connection with its new high speed data port.  Intel, however, worked with Apple to develop this new standard.  The deal allows Apple to have unrestricted use of the trademark.  As I was reading through this story, it does not seem as though there was any sort of “dispute” with respect to the trademark.  Instead, it looks as though Apple and Intel worked together on this new standard, and part of Apple’s contribution was to take care of the initial trademark filing.  Of course, any type of intellectual property story with Apple involved always seems like a dispute.

This almost seems like a cross licensing deal, and I am sure that the “Thunderbolt” trademark was not the only piece of intellectual property involved in the deal.  There may have been some patents or patent applications involved, and certainly some copyright issues raised in the licensing deal.

These are some of the things that companies need to think about when entering into collaborative agreements with one another.  Before entering into collaborative agreements with other companies, these types of terms should be agreed upon.  Taking the time to think of these terms and making sure that everything is as clear as possible is a sure way to substantially reduce the likelihood of litigation at a later date.

You will notice that I did not say that litigation could be eliminated.  I wish that were the case, but it is just not feasible.  If someone thinks that they have a right to something, and they have $350 to file a lawsuit (that’s about the going rate for a filing fee for a complaint) then they can sue you.  With the proper agreements in place, however, you will likely have a good defense.

 

 

Made for Apple, OR ELSE!

Sunday, 10 April, 2011 21:01 Written by Scott Nyman 0 Comments
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By Scott Nyman

It’s no surprise that Apple holds a large portfolio of intellectual properties. In fact, there are websites dedicated to tracking new patents and trademarks issued to Apple, such as www.patentlyapple.com. It should come to no further surprise that the company would desire to control and profit from such intellectual properties.

A few years ago, Apple began a licensing program as a requirement to market and sell iPod, called the “Made For Apple” program. This program has since transformed into the “MFi Program,” which has expanded licencing to include Apple’s iPod, iPhone, and iPad. Apple describes the MFi as a  “licensing program to develop electronic accessories that connect to iPod, iPhone, and iPad” and allow “licensed developers gain access to technical documentation, hardware components, technical support and certification logos.”

Joining the program allows a developer a license to market and use Apple’s patented technologies without provoking the wrath of the company’s litigation department. Of course, Apple charges for the licenses it provides, and sometimes for each device manufactured. For example, when the program was still called “Made for Apple,” accessory makers were required pay $4.00 for each unit that used Apple’s proprietary connector.

Some companies, including eForCity, decided to manufacture and distribute accessories for Apple’s iDevices without bothering with those pesky licensing fees. I don’t know if these companies thought they could fly under Apple’s radar or just didn’t care, but Apple noticed. In fact, this past July Apple filed a complaint with the U.S. District Court for the Northern District of California alleging infringement on their patents and trademarks and unfair competition. The defendants attempted to have the suit dismissed on procedural issue, but District Judge Jeremy Fogel has since ordered the case to proceed.

Where the case goes from here is anyone’s guess. Patent and trademark litigation can get very expensive very fast, and I am in no position to guess the financial ability of the Defendant companies to put up a fight against Apple. If history is any indication, eForCity and the others may look to settlement as the best alternative, as similar other Defendants have over an alleged infringement of Apple’s “MagSafe” power connector.

Get Rich or Infringe Copyrights Tryin’ – Part 2

Sunday, 16 January, 2011 00:18 Written by Scott Nyman 0 Comments
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By Scott Nyman

A few weeks ago, I wrote about the current case filed against 50 Cent for allegedly infringing the exclusive rights of a copyrighted beat, owned by fellow rapper Tyrone Simmons. Since publishing the article, I’ve had the pleasure of speaking with Louis Tambaro, one of the attorneys representing Mr. Simmons in this matter.

Few people know just how "true street" Ben Franklin actually was...

After a very engaging discussion with Mr. Tambaro, I was able to familiarize myself with the facts surrounding this infringement suit. Tyrone Simmons, otherwise known by his stage name, “Young Caliber,” is an aspiring rapper with local exposure in the Atlanta and South Carolina geographic regions. In 2006, Simmons purchased the exclusive rights for a “beat” titled, “I Get Money” Instrumental Work, from Apex Productionz.

After the transfer of exclusive rights for the beat, a third party copied the beat from Apex Productionz, without the permission of Mr. Simmons or Apex Productionz. The third party then attempted to sell the beat to 50 Cent and the associated recording labels. Upon learning of this attempted theft, William Stanberry of Apex Productionz proceeded to enter into a subsequent licensing agreement with 50 Cent and/or one or more of the associated record labels. Mr. Stanberry apparently entered negotiations with 50 Cent and his crew fully aware of his prior transfer of exclusive rights to Mr. Simmons. Stanberry’s consolation to Simmons? A chance to pick another beat and an “I’m sorry man.”

Yep, this pretty much sums this case up.

Under the Copyright Act, the owner of a valid copyright has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. (17 U.S.C. §106)

For illustrative purposes, it may be easiest to compare the licensing agreement to a lease for real property, such as a house. If you sign a lease for a house, you are purchasing the right of possession to that property for the term of the lease. Your landlord cannot just sell your right of possession to another party, which would result in requiring you to move out of the house or share the house with multiple other tenants. Similarly, when you purchase the exclusive rights to use a piece of intellectual property, you are purchasing a guarantee that same IP is not being licensed to your competitors.

I'll stick with my Charmin

And what has Tyrone Simmons gotten out of this deal? As best said by Mr. Tambaro, “[his] client has not seen one cent, let alone 50 cents.” In closing my conversation with Louis, I became convinced that this case has some legs. I’m willing to bet the case will result in a handsome settlement, negotiated silently behind closed doors. I will continue to keep an open dialogue with the lawyers of Marks & Klein, co-counsel in representing Tyrone Simmons, and pass along the details of this litigation as they develop. Similarly, if counsel for 50 Cent contacts me, I will post another article regarding that dialog.

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